AFTER 16 YEARS OF LITIGATION, BARR REVERSES BIA, STICKS IT TO FORMER CHILD SOLDIER SUBJECTED TO DURESS! — Matter of NEGUSIE, 28 I&N Dec. 120 (A.G. 2020)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/a-g-barr-on-asylum-persecution-duress-coercion-matter-of-negusie

 

Dan Kowalski reports from LexisNexis Immigration Community:

A.G. Barr on Asylum, Persecution, Duress, Coercion: Matter of Negusie

Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.

(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.

“I vacate the Board’s June 28, 2018 decision. The Board’s decision did not adopt the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as of longstanding Board precedent and policies of the Department of Justice. In addition, the decision did not appropriately weigh relevant diplomatic considerations, and it introduced collateral consequences that would be detrimental to the administration of immigration law. The Board’s decision also placed an initial burden on the Department of Homeland Security (“DHS”) to show evidence indicating the applicant assisted or otherwise participated in persecution, which is contrary to the plain language of the governing regulations. Because the Board incorrectly recognized a duress exception to the persecutor bar, and incorrectly placed an initial burden on DHS to show evidence the persecutor bar applies, I overrule those determinations and any other Board precedent to the extent it is inconsistent with this opinion. I vacate the Board’s decision and remand this matter to the Board with instructions to place the case on hold pursuant to 8 C.F.R. § 1003.1(d)(6)(ii)(B) pending the completion or updating of all identity, law enforcement, or security investigations or examinations. Once those investigations or examinations are complete, the Board should enter an appropriate order.”

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Fairly predictable given the regime and a system that lets a political official interfere in the quasi-judicial decision-making process in violation of due process and fundamental fairness! Remarkably, Barr injects “diplomatic considerations” into what is supposed to be due process, impartial adjudication system! He also shifts the burden of proof to the respondent, rather than the DHS where the BIA had placed it.

This case was remanded by the U.S. Supreme Court after the BIA got it wrong more than a decade ago. If it goes back to the Court again, the former “child soldier” in 1995, when the events occurred, could well be a “senior citizen” by the time the system decides his fate. 

In the course of remanding the case, the Supremes noted that different interpretations of the statute by the BIA with respect to the duress defense were available. As has become the norm these days, faced with various reasonable possibilities, the Attorney General chose the one “least favorable to the foreign national.”

This case also points out the absurdity of the “Chevron doctrine” in immigration. In 2009 when this case was before the Supremes, there was a clearly developed record. Additionally, it was clear that a number of the then Justices had well-defined, if conflicting, views on the “duress defense” in this context. Yet the Court remanded for the BIA to exercise “Chevron authority” to make another interpretation. That process has taken 11 years!

Whatever happened to the plain old fashioned idea that Justices of our Supremes are paid to decide what the law is so that it can be carried out by the Executive?As I have stated on many occasions, “Chevron deference” is nothing more than “judicial task avoidance” at the highest levels!

The “good news” from the respondent’s standpoint is that the BIA’s prior grant of “deferral of removal” to Eritrea stands. Therefore, it seems likely that he will be able to remain in the U.S. in “limbo” status for the rest of his life, no matter how the asylum litigation eventually plays out.

It also illustrates the extent to which the Government will go to deprive an individual of a chance to regularize status in the United States. This protracted litigation isn’t about “removing a bad guy” from the U.S. Rather it’s about insuring that a foreign national who has been residing here with no apparent incidents for the past 16 years, and is likely to be among us for the rest of his life, will continue to “twist in the wind” without permanent legal status or any chance of becoming a full member of our society.

A regime that mindlessly rushes cases to deportation without fair deliberation in many cases has no problems making the system move at a glacial pace, wasting time, and squandering legal resources when it wants to screw the asylum seeker.

PWS

11-06-20

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder.  (In addition to the former Board member, one of the included IJs also served as a temporary Board member).   The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows.  After initially ceding a limited duress exception to the Board, DHS recently changed its position.  In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim.  First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself.  As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden.  The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17