Third Circuit – immigrationcourtside.com

FRAUD, WASTE, & ABUSE: INFANTS ORDERED TO APPEAR IN U.S. IMMIGRATION COURTS UNDER TRUMP & SESSIONS! – Shocking Stupidity, Inhumanity, & Waste Of Taxpayer Dollars!

https://www.texastribune.org/2018/07/18/immigrant-separated-families-infant-court-defend-donald-trump-zero-tol/

CHRISTINA JEWETT AND SHEFALI LUTHRA, REPORT FOR KAISER HEALTH NEWS IN THE TEXAS TRIBUNE:

The Trump administration has summoned at least 70 infants to immigration court for their own deportation proceedings since Oct. 1, according to Justice Department data provided to Kaiser Health News.

These are children who need frequent touching and bonding with a parent and naps every few hours, and some were of breastfeeding age, medical experts say. They’re unable to speak and still learning when it’s day versus night.

“For babies, the basics are really important. It’s the holding, the proper feeding, proper nurturing,” said Shadi Houshyar, who directs early childhood and child welfare initiatives at the advocacy group Families USA.

The number of infants under age 1 involved has been rising — up threefold from 24 infants in the fiscal year that ended last Sept. 30, and 46 infants the year before.

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The Justice Department data show that a total of 1,500 “unaccompanied” children, from newborns to age 3, have been called in to immigration court since Oct. 1, 2015.

Roughly three-fourths of the children involved are represented by a lawyer and they have to make their case that they should stay in the United States.

Officials who review such deportation cases say most children under 1 cross the border with a parent and their deportation cases proceed together.

But some of the infants were deemed “unaccompanied” only after law enforcement separated them from their parents during the Trump administration’s “zero-tolerance” immigration policy. The children were sent to facilities across the U.S. under the supervision of the Department of Health and Human Services.

“This is to some extent a … crisis of the creation of the government,” said Robert Carey, who previously headed the Office of Refugee Resettlement, which takes custody of unaccompanied minors. “It’s a tragic and ironic turn of events.”

Younger children are also considered unaccompanied if they enter the United States with an older family member who is not yet 18. The data do not clarify which children arrived that way or which were separated from their parents.

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The Justice Department did not respond to a request for further data about where the children are housed. They could be in a foster care home, in a group home, with a relative or sponsor, or reunited with a parent. HHS, which operates the refugee resettlement office, did not provide comment by publication time.

In previous statements, the government has argued that separation — and its consequences — are unfortunate but unavoidable under the law.

“There is a surefire way to avoid separation from your children. Present yourself legally … or stay back at your home country, and go through the process others do,” HHS Secretary Alex Azar said on a media call earlier this month. “None of us want children separated from their parents. I want no children in our care and custody.”

The number of unaccompanied children called in to court since Oct. 1, 2015, swells to 2,900 if kids up to 5 are included. The total will rise between now and Sept. 30, when the fiscal year ends, noted Susan Long, a statistician at Syracuse University and director of TRAC, a repository of immigration and federal court data. There’s also an ongoing backlog in entering the data.

In June, a district judge in San Diego ordered the government to reunify families within a month, specifically directing them to unite children younger than 5 with parents by July 10.

HHS reunited about half of those children by July 12 — 57 out of 103. Others, the government said, could not be placed with a parent, citing in some cases “serious criminal history” or parents currently being in jail.

In 12 cases, those children’s parents had already been deported. In another, the government had failed to figure out where the child’s parent was located, and in another, the parent had a “communicable disease,” HHS said.

The Department of Homeland Security, which issues the court orders, also did not respond to a request for comment.

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In the removal cases, children have no right to an appointed lawyer, but rather to a list of legal aid attorneys that the child’s current caregiver can contact.

And young children rarely know the details of why they fled their home country, especially without a parent present, noted Eileen Blessinger, a Virginia-based immigration lawyer who has been aiding parents she was connected with through advocates on the Texas-Mexico border.

“Think about it as a parent. You’re not going to tell your child they might be killed, right?” she said. “A lot of the kids don’t know.”

Immigration court, which is an administrative unit of the Department of Justice, is different from typical courts. It handles “respondents” who may be too young to speak, but has no social workers or legal remedies focused on the best interest of a child.

Lenni Benson, a New York Law School professor and founder of the Safe Passage Project, which provides legal services to migrant youth, said she was recently at a large family detention center in Dilley talking to families. She said it’s rare for the families fleeing violence in Central America to bring infants, given the dangers of the journey, which include risks of abduction and a lack of clean water.

“There are people who do that because they are terrified for their child” in the home country, she said.

Benson recounted being in immigration court in 2014 when a judge asked for a crying baby to be removed from the courtroom. She said she paused to inform the judge that the baby was the next respondent on the docket — and asked that the child’s grandmother stand in.

The stakes for the babies, and any migrant fleeing violence, are high, said Paul Wickham Schmidt, a former immigration judge who retired in 2016 after 13 years on the bench in Arlington, Va.

“Final orders of deportation have consequences,” he said. “For something that has a very serious result, this system has been described as death penalty cases in traffic court.”

Ashley Tabaddor, president of the National Association of Immigration Judges and a judge specializing in juvenile cases in Los Angeles, acknowledged that the Trump administration narrowed a directive on how much judges can assist juveniles in court. Still, she said, judges do their best to ensure that young children get a fair hearing.

Justice Department data show that asylum denials are at a nearly 10-year high at 42 percent, and the Associated Press reported that the administration has raised the bar for making a successful case.

At the same time, children can be strapped for resources, Blessinger said.

She described one client whose 7-year-old daughter received legal support from a New York-based charity. Even in that case, she said, the organization acted simply as a “friend of the court” — rather than a full-fledged attorney — requesting delays in proceedings until the child and mother could be reunited. That finally happened Tuesday night, she said.

“It’s the saddest experience. These people are not going to be recovering anytime soon,” she said. “The parents are crying even after they’re reunited.”

Kaiser Health News (KHN) is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation that is not affiliated with Kaiser Permanente.

KHN’s coverage of children’s health care issues is supported in part by a grant from the Heising-Simons Foundation.

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Stupid policies driven by biased White Nationalist restrictionists squander judicial time, waste resources, make America look dumb!

Contrary to what HHS Secretary Alex Azar says, presenting oneself at a Port of Entry and applying for asylum has been a guarantee neither of prompt and professional processing of asylum applications nor that there will be no family separation. Indeed, the “credible fear” process has now been “gamed” by Sessions and USCIS so that many legitimate asylum applications are summarily denied and the individuals subjected to expedited removal without appeals. And, to date, several “real” Article III Courts (in particular, the Third Circuit Court of Appeals) have “twiddled their thumbs” and failed to intervene to prevent the gross abuses of Due Process and our international obligations being carried out on a daily basis by this Administration.

Infants in court, real substantive asylum claims rejected without hearings — no wonder the U.S. Immigration Court system is broken and there is no time for “real”cases. The long-term solution might well involve more Immigration Judges and staff. But, at this point, that would be “throwing good money after bad.”

Before there can be expansion, the U.S. Immigration Court system needs to be fixed and returned to its original Due Process focus with Immigration Judges in change and empowered to remove cases like this from the active docket and to sanction Government Attorneys (as well as private attorneys) who waste valuable court time with frivolous litigation. Indeed, Congress did provide Immigration Judges with authority to hold attorneys from both sides in contempt. However, the DOJ has thumbed its nose at that statutory authorization over several Administrations and has never implemented the statute. (This is a good example of what the “rule of law” really means in the USDOJ!)

Removing the Immigration Court system from the Executive Branch is a necessary first step in reforming it to serve its original (and only) purpose: guaranteeing Due Process and fairness for all!

Meanwhile, as pointed out by Christina and Shefali, the damage to the health and welfare children and families might be irreparable.

PWS

07-19-18

RECENT UNPUBLISHED REMANDS FROM 3RD & 2D CIRCUITS SHOW HOW BIA TILTS FACTS & LAW TO DENY PROTECTION TO CENTRAL AMERICAN REFUGEES

HOW THE BIA UNFAIRLY DENIES PROTECTION TO CENTRAL AMERICAN REFUGEES WHILE ENCOURAGING U.S. IMMIGRATION JUDGES TO DO THE SAME

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Two recent (alas unpublished) decisions from the Third and Second Circuits illustrate a key point that the Hon. Jeffrey Chase and I have made in our prior blogs: too often the BIA goes out of its way to bend the law and facts of cases to deny asylum seekers, particularly those from Central America, the protection to which they should be entitled. The BIA’s erroneous interpretations and applications of the asylum law have a corrupting effect on the entire fair hearing system in the U.S. Immigration Courts and the DHS Asylum Offices.

See:

http://immigrationcourtside.com/2017/08/13/analysis-by-hon-jeffrey-chase-bia-once-again-fails-refugees-matter-of-n-a-i-27-in-dec-72-bia-2017-is-badly-flawed/

http://immigrationcourtside.com/2017/06/03/introducing-new-commentator-hon-jeffrey-chase-matter-of-l-e-a-the-bias-missed-chance-original-for-immigrationcourtside/

http://immigrationcourtside.com/2017/08/14/politico-highlights-lack-of-due-process-cultural-awareness-proper-judicial-training-in-u-s-immigration-courts-handling-of-vietnamese-deportation-case/

http://immigrationcourtside.com/2017/08/11/4th-circuit-shrugs-off-violation-of-refugees-due-process-rights-mejia-v-sessions/

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

http://immigrationcourtside.com/2017/07/31/u-s-immigration-courts-apear-stacked-against-central-american-asylum-applicants-charlotte-nc-approval-rates-far-below-those-elsewhere-in-4th-circuit-is-precedent-being-misapplied/

Aguilar v. Attorney General, 3d Cir., 08-16-17

163921np

What happened:

Aguilar credibly testified that he was extorted by MS-13 because he was a successful businessman. Aguilar publicly complained to neighbors about the gang and said he would like them exterminated. Thereafter, the gang told him that because he had complained, they were doubling the amount of their extortion to $100 and would kill his family if he didn’t comply. Eventually, the gang increased the demand to $500 and threatened Aguilar at gunpoimt. Aguilar left the country and sought asylum in the U.S.

What should have happened:

Aguilar presented a classic “mixed motive” case. In a gang-ridden society like El Salvador, public criticism of gangs is a political opinion. This is particularly true because gangs have infiltrated many levels of government. Indeed in so-called “peace negotiations,” the Salvadoran government treated gangs like a separate political entity.

Undoubtedly, the gang’s increased extortion combined with death threats against Aguilar and his family resulted from his public political criticism of the gangs. Indeed, they told him that was the reason for increasing the amount to $100. There also is no doubt that gangs are capable of carrying out threats of harm up to the level of death and that the Salvadoran government is often unwilling or unable to protect its citizens from gangs.

Consequently, the respondent has established a well-founded fear (10% chance) of future persecution. He has also shown that political opinion is at least one central reason for such persecution. Consequently, Aguilar and his family should be granted asylum.

What actually happened:

The Immigration Judge denied Aguilar’s claim, finding that Aguilar’s statements were not made “in a political context” and also that the increased extortion and threats of harm were motivated by “pecuniary interest or personal animus” not a political opinion. The BIA affirmed on appeal.

What the Third Circuit said:

“Nothing in this exchange indicates that Aguilar believed that MS continued asking him for money “over the years” solely because he was a business owner or that their motive did not evolve over time. Rather, Aguilar’s earlier testimony stated that after he had made his negative statements about MS, “a few days pass, less than a week, when I have them back, and three of them came, and they said, we heard that you talked badly about us, and because you did that we are going to charge you $100 a week from now on, and if you don’t pay that we are going to kill your family.” (A.R. 171 (emphasis added).) In other words, Aguilar testified that the gang specifically cited his statements as the reason why it was increasing his payments. This runs contrary to the BIA’s conclusion

that his testimony “did not indicate a belief that he was targeted on account of any beliefs, opinions, or actions,” (App. 10), and directly supports his mixed motive argument. Despite affirming the IJ’s determination that Aguilar was credible, (App. 10), the BIA failed to acknowledge this important portion of Aguilar’s testimony. Instead, both the BIA and IJ determined that Aguilar had failed to show that his increased extortion payments and threats were the result of a protected ground rather than the pecuniary interest or personal animus of MS. However, the BIA has recognized that [p]ersecutors may have differing motives for engaging in acts of persecution, some tied to reasons protected under the Act and others not. Proving the actual, exact reason for persecution or feared persecution may be impossible in many cases. An asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. In Re S-P-, 21 I. & N. Dec. 486, 489 (B.I.A. 1996). As such, “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible.” Id. While we must affirm factual determinations unless the record evidence would compel any reasonable factfinder to conclude to the contrary, Aguilar’s credible testimony supports his assertion that the increased payments were, at least in part, the result of his negative statements. Requiring him to show that the MS members were motivated by his membership in the particular social group of persons who have spoken out publicly against the MS and who have expressed favor for vigilante organizations, rather than personal animus because of those statements, would place an unreasonable burden on Aguilar. There is no clear delineation between these two motives, and there is

no additional evidence that we can conceive of that would allow Aguilar to hammer down the gang members’ precise motivations, short of their testimony. Rather, the immediacy with which the gang increased its demands coupled with its stated reason for the increase leads us to conclude that any reasonable fact finder would hold that Aguilar had demonstrated that the increased demands were at least in part motivated by his statements.

The question now becomes whether Aguilar’s statements were a political opinion or if they indicated his membership in a particular social group. The IJ determined that Aguilar’s criticism of MS was not made in a political context, and the BIA affirmed. (App. 2, 24 n.3.) However, neither the IJ nor the BIA provided reasoning to support this finding. Similarly, the IJ determined that Aguilar’s proposed particular social groups were not sufficiently particular or socially distinct. (App. 24 n.3.) Again, no reasoning was given. The BIA declined to weigh in on the issue because it found that Aguilar had not met his burden of showing a nexus between the persecution and a protected ground. Thus, we will vacate and remand the issue to the BIA to review whether Aguilar’s proposed groups are sufficiently particular or distinct, and to provide a more detailed review of whether his statements were a political opinion. Aguilar’s application for withholding of removal should similarly be reevaluated in light of our guidance.”

Martinez-Segova v. Sessions, 2d Cir., 08-18-17

http://www.ca2.uscourts.gov/decisions/isysquery/c0292714-4831-4fb8-b31e-c1269886a55b/1/doc/16-955_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c0292714-4831-4fb8-b31e-c1269886a55b/1/hilite/

What happened:

Martinez-Segova suffered domestic abuse at the hands of her husband. She suffered harm rising to the level of past persecution on account of a particular social group. However, the DHS claims that the Salvadoran government is not unwilling or unable to protect Martinez-Segova because she obtained a protective order from a court. After the protective order was granted the respondent’s husband “violated the order with impunity by showing up to her place of work kissing and grabbing her and begging her to return.”

According to the U.S. State Department,

“Violence against women, including domestic violence, was a widespread and serious problem. A large portion of the population considered domestic violence socially acceptable; as with rape, its incidence was underreported. The law prohibits domestic violence and generally provides for sentences ranging from one to three years in prison, although some forms of domestic violence carry higher penalties. The law also permits restraining orders against offenders. Laws against domestic violence were not well enforced, and cases were not effectively prosecuted.”

Martinez-Segova also submitted lots of documentary evidence showing “the Salvadoran government’s 13 inability to combat domestic violence.”

What should have happened:

Martinez-Sevova has a “slam dunk” case for asylum. The Government’s argument that Salvador can protect her is basically frivolous. The Salvadoran government in fact was unable to protect the respondent either before or after the protective order. The State Department Country Report combined with the expert evidence show that the Salvadoran government t has a well-established record of failure to protect women from domestic violence.

The idea that the DHS could rebut a presumption of future persecution based on past persecution by showing fundamentally changed circumstances or the existence of a reasonably available internal relocation alternative is facially absurd in the context of El Salvador.

What really happened:

Incredibly, the Immigration Judge denied Martinez-Segova’s claim, and the BIA affirmed. The BIA made a bogus finding that Martinez-Segova failed to show that the Salvadoran government was unwilling or unable to protect her.

What the Secomd Circuit said:

“We conclude that the agency failed to sufficiently consider the country conditions evidence in analyzing whether Martinez-Segova demonstrated that the Salvadoran government was unable or unwilling to protect her from her husband. The BIA relied heavily on the fact that Martinez-Segova failed to report her husband’s violation of the protective order to the police. The agency’s decision in this regard was flawed. Where, as here,“the IJ and BIA ignored ample record evidence tending to show that”authorities are unwilling and unable to protect against persecution, we need not decide “whether [a petitioner’s] unwillingness to confront the police is fatal to [her] asylum claim.” Pan v. Holder, 777 F.3d 540, 544-45 (2d Cir. 2015); see also Aliyev v. Mukasey, 549 F.3d 111, 118 (2d Cir. 2008) (declining to determine “precisely what a person must show in order for the government to be deemed responsible for the conduct of private actors” where petitioner “introduced enough evidence to forge the link between private conduct and public responsibility” (emphasis added)).

Although the agency does not have to parse each individual piece of evidence, Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007), there is no indication that the agency considered the ample record evidence of the Salvadoran government’s inability to combat domestic violence—a phenomenon that the U.S. State Department deems one of El Salvador’s “principal human rights problems” for which its efforts to ameliorate the problem are “minimally effective.” A declaration from an human rights attorney and expert on gender issues in El Salvador reveals that orders of protection, while difficult to procure, “do little to protect victims from further violence because judges often draft them inadequately and law enforcement officials neglect or refuse to enforce them” and “are little more than pieces of paper affording no more protection than the victims had prior to the legal process.” Where orders of protection are issued, the onus is on the government to ensure compliance; for example, judges are required to appoint an independent team to monitor compliance with orders of protection and that inadequate follow up “frequently renders victims of domestic violence virtually helpless to enforce their rights.” There is no indication that that judge did this in Martinez-Segova’s case. Moreover, the order of protection prohibited Martinez-Segova’s husband from “harassing, stalking, [and] intimidating” her, but her husband nonetheless violated the order with impunity by showing up to her place of work, kissing and grabbing her and begging her to return. Because the agency’s conclusion—that Martinez- Segova failed to establish that the Salvadoran government was unable or unwilling to protect her from her husband because she had been able to obtain a protective order —is in tension with the record evidence demonstrating that such orders are largely ineffective, we grant the petition and remand for consideration of this evidence. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.”). Because remand is warranted for the agency to consider whether Martinez-Segova established past persecution, we decline to reach its humanitarian asylum ruling at this time. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). Moreover, the BIA did not address the IJ’s conclusion that the Government rebutted Martinez-Segova’s well-founded fear of persecution, and that determination generally precedes an analysis on whether humanitarian asylum is warranted. See 8 C.F.R. § 1208.13(b)(1)(B)(iii) (humanitarian asylum is generally considered “in the absence of a well-founded fear of persecution”).”

CONCLUSION

The BIA and the Immigration Judges made an incredible number of serious errors in these two cases, from misreading the record, to ignoring the evidence, to botching the law.

So, while DOJ and EOIR are patting each other on the back for becoming such great cogs in the Trump deportation machine, and racing removals through the system, the real results are starkly illustrated here. Every day, vulnerable asylum applicants with sound, well-documented claims that should be quickly granted either at the Asylum Office or on an Immigration Court’s “short docket” are being screwed by the BIA’s failure to protect the rights of asylum seekers and to educate and in some cases force Immigration Judges to do likewise.

The Federal Courts are being bogged down with cases that a third-year law student who has had a course in asylum law could tell have been badly mis-analyzed. The idea that EOIR contains the world’s best administrative tribunals dedicated to guaranteeing fairness and due process for all has become a cruel joke.

Our Constitution and laws protecting our rights are meaningless if nobody is willing and able to stand up for the rights of individuals who are being railroaded through our system. We saw this in the era of Jim Crow laws directed at depriving Black Americans of their rights, and we are seeing it again today with respect to migrants caught up in the Trump Administration’s gonzo enforcement program.

Yeah, today it’s not you or me. But, when you or I need justice, why will we get (or deserve) any better treatment than the farce that the Trump Administration and EOIR are unloading on migrants now?

PWS

08-27-17

FAILED DUE PROCESS VISION: BIA Blows Off IJ’s Due Process Violations — Third Circuit Blows Whistle On BIA! — Serrano-Alberto v. Attorney General — READ MY “CONTINUING CRITIQUE” OF THE BIA’S FAILURE TO PROTECT THE RIGHTS OF ASYLUM SEEKERS!

http://www2.ca3.uscourts.gov/opinarch/153146p.pdf

PANEL: Circuit Judges VANASKIE, KRAUSE, and NYGAARD

OPINION BY: Judge Nygaard

“While in the vast majority of cases, IJs diligently comport with their constitutional and statutory obligations, and while it is only on rare occasion that we have held an IJ’s conduct crosses the line, the record here compels us to conclude this is one of those rare cases. Because we reach this conclusion against the backdrop of the three main cases to date in which we have distinguished between permissible and impermissible IJ conduct under the Due Process Clause, we will review each of those cases before addressing Serrano- Alberto’s claims for relief.

. . . .

What these cases teach us is that, where a petitioner claims to have been deprived of the opportunity to “make arguments on his or her own behalf,” Dia, 353 F.3d at 239, there is a spectrum of troubling conduct that is fact-specific and must be evaluated on a case-by-case basis to determine if (1) the petitioner “was prevented from reasonably presenting his case[,] and (2) . . . substantial prejudice resulted,” Fadiga, 488 F.3d at 155 (internal quotation marks omitted). At one end of the spectrum, the “lack of courtesy,” “interject[ions]” to clarify and develop the record, and “annoyance and dissatisfaction with . . . testimony” in Abdulrahman, 330 F.3d at 597, were not sufficient to establish a due process claim. At the other end, the “contemptuous tone,” focus on “issues irrelevant to” the petitioner’s claims, and findings unsupported by the record in Wang, 423 F.3d at 270, and the “wholesale nitpicking,” “continual[] abuse[]” and “belligerence,” and “interrupt[ions] . . . preventing important

parts of [the petitioner’s] story from becoming a part of the record,” in Cham, 445 F.3d at 691, 694, were flagrant enough to violate due process. Where these component parts of an IJ’s conduct are sufficiently egregious, at least in combination, a petitioner’s procedural due process rights are violated.

In Serrano-Alberto’s case, we conclude the IJ’s conduct falls on the impermissible end of the spectrum. Indeed, the IJ’s conduct here shares many of the attributes of the conduct we found unconstitutional in Wang and Cham, including a hostile and demeaning tone, a focus on issues irrelevant to the merits, brow beating, and continual interruptions. See supra Sec. III.B. And in contrast to Abdulrahman where the interruptions assisted the petitioner in answering questions and appropriately refocused the hearing, 330 F.3d at 596-98, the IJ’s interruptions here repeatedly shut down productive questioning and focused instead on irrelevant details, see supra Sec. III.B.”

********************************************

On the “plus side,” the Third Circuit went out of its way to point out that this case is the exception rather than the rule with respect to Immigration Judges’ respect for due process during the hearing process.

But, on the negative side, why should a supposedly “expert” Board whose mission is to protect due process be letting clearly unfair adjudications like this, which violate due process, get by? Not everybody can afford to go to the Court of Appeals. So, the Board’s failure to carry out its due process functions can actually cost lives, or at least ruin them. How can such a critically important function as appellate immigration judging be treated so dismissively, inappropriately, incompetently, and lackadaisically by successive Administrations while largely escaping critical public examination of its often highly questionable jurisprudence?

In my view, as I’ve observed before, part of the problem lies with the BIA’s overall negative approach to asylum seekers, particularly those from Central America with claims based on “particular social groups.” With a “closed, inbred judiciary” drawn almost exclusively from Government, a highly politicized Department of Justice which is unqualified to run a court system, and the fear of another “Ashcroft purge” hanging over them for judging independently and protecting the rights of asylum seekers, the BIA has basically “tanked” on its duty to guarantee fairness, due process, and protection to asylum seekers. So, if the BIA is unwilling to speak up for the due process and substantive rights of respondents, what’s its purpose? To provide a “veneer of deliberation and due process” to dissuade the Article III courts and the public from digging into the details to find out the real problems?

It’s also interesting that the Third Circuit “calls out” the BIA for a standard practice of using (often bogus) “nexus” denials to deny protection to asylum applicants who fit within a protected ground and can clearly demonstrate a likelihood of harm upon return. Check out FN 5 in the Third Circuit’s opinion:

“5 In a number of recent cases, the BIA likewise has assumed a cognizable PSG or imputed political opinion and disposed of the appeal by finding no nexus. See, e.g., Bol- Velasquez v. Att’y Gen., No. 15-3098 (3d Cir. filed Aug. 28, 2015) (ECF Agency Case Docketed); Bell v. Att’y Gen., No. 14-4781 (3d Cir. filed Dec. 18, 2014) (same); Santos v. Att’y Gen., No. 14-1050 (3d Cir. filed Jan. 8, 2014) (same); Ulloa- Santos v. Att’y Gen., No. 12-2781 (3d Cir. filed June 25, 2012) (same); Orellana-Garcia v. Att’y Gen., No. 12-2099 (3d Cir. filed Apr. 20, 2012) (same). This practice, however, can have troubling consequences. First, it places the analytical cart before the horse in cases like this one, where the very definition of the PSG is then at issue, for denying relief based on the absence of a nexus begs the question: nexus to what? See, e.g., Bol-Velasquez, No. 15-3098. Even the Attorney General has observed “it would be better practice for Immigration Judges and the Board to address at the outset whether the applicant has established persecution on account of membership in a [PSG], rather than assuming it as the Board did here. Deciding that issue—and defining the [PSG] of which the applicant is a part—is fundamental to the analysis of which party bears the burden of proof and what the nature of that burden is.” Matter of A-T-, 24 I. & N. Dec. 617, 623 n.7 (U.S. Att’y Gen. 2008). Second, even where the PSG definition is undisputed—so that the BIA would certainly have discretion to conclude that the efficiency of assuming a given PSG weighs in favor of resolution at the nexus stage—a reflexive practice of simply assuming a PSG has been established and is cognizable does not account for the very real benefits on the other side of the scale. Just as the Supreme Court has observed in the qualified immunity context, adjudication at every step is generally “necessary to support the Constitution’s ‘elaboration from case to case’ and to prevent constitutional stagnation” because “[t]he law might be deprived of this explanation were a court simply to skip ahead,” Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009) (holding the two-step protocol announced in Saucier v. Katz, 533 U.S. 194 (2001) is no longer mandatory “but often beneficial”), so here, the BIA’s practice of assuming PSG and resolving cases on nexus grounds often inhibits the proper and orderly development of the law in this area by leaving the contours of protected status undefined, precluding further appellate review under the Chenery doctrine, see SEC v. Chenery Corp., 332 U.S. 194 (1947), and ultimately generating additional needless litigation because of the uncertainty in this area, see Valdiviezo-Galdamez, 663 F.3d at 594-609; Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 230 (BIA 2014). This is a case in point, where the IJ articulated the relevant PSG as “individuals perceived as wealthy who refuse to pay gang taxes,” App. 17, although other definitions were reasonable, and the BIA, despite being presented with alternative formulations, declined to rule on the question altogether. In sum, for both of the reasons stated, we strongly encourage IJs and the BIA to define the PSG in question and to adjudicate the existence and cognizability of that PSG.”

Let’s get down to the real point. Largely because of intervention from Article III Courts, more and more “particular social groups” are becoming “cognizable.” This is particularly true in the area of family-based social groups.

Alternatively, the DHS and the BIA have tried to deny claims on the grounds that the foreign government is “not unable or unwilling to protect.” But, given the documented conditions in the Northern Triangle of Central America, such findings often don’t pass the “straight face test” and have had difficulty on judicial review. So the best way to deny protection to Central American asylum seekers is by developing metaphysical, largely bogus, findings of lack of “nexus.”

The answer to the Third Circuit’s question “nexus to what” is simple. It doesn’t matter. No matter what the protected group is in Central American cases, the BIA will do its best to find that no nexus exists, and encourage Immigration Judges to do likewise.

A vivid example of that was the BIA’s recent precedent inMatter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), discussed in earlier blogs. There, without dissent or meaningful discussion, the BIA “deconstructed” a clearly established case for nexus (which actually had been found by the Immigration Judge) and buried it under layers of impenetrable legal gobbledygook. Maybe it will get deference from the Article IIIs, maybe it won’t. There isn’t much consistency there either.

Asylum applicants lives are at stake in removal proceedings. They deserve a process where fairness, due process, and deep understanding of the life-preserving functions of protection law are paramount. Today’s system, which all too often runs on the principles of expediency, institutional preservation, job security, pleasing the boss, and sending law enforcement “messages” is failing those most in need. One way or another, our country and future generations will pay the price for this dereliction of duty.

PWS

06-13-17

Related posts:

Aguilar v. Attorney General, 3d Cir., 08-16-17

Martinez-Segova v. Sessions, 2d Cir., 08-18-17

CONCLUSION

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