"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
This e-mail exchange among experts says it all about Cabrera-Fernandez:
Expert 1: Wow – they never miss a chance to hurt noncitizens, do they?
Expert 2: The cruelty is the point.
“The Cruelty Is The Point” IMAGE: Amazon.com
With an available interpretation that would have allowed regularization of status, what purpose is served by devising a way to keep these otherwise qualified Cubans in limbo? Why would the DHS appeal a decision like this? Why would the BIA reward them for pursuing a result that is 1) inhumane, 2) undesirable, and 3) entirely avoidable with a little creativity and common sense (see, IJ in this case)?
No wonder we have backlogs everywhere an a dysfunctional system that nobody in charge seems interested in fixing — even when fixes are available and basically “cost free?” Better leaders and more enlightened decision-makers would be helpful.
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
NIJC: On Friday (4/8) we learned from the government that it would not file an appeal in AsylumWorks v. Mayorkas. This means, happily, that the EAD Rules that delayed and in some cases denied access to EADs for asylum seekers are fully vacated. The vacatur applies to both the 30-day adjudication rule and the larger rule that had more than a dozen changes to EAD eligibility for asylum seekers.
NY EOIR Asks ICE to Submit PD Stance 3 Days Before Hearings
EOIR: In an effort to reduce our interpreter non-usage and our continuance rates, the New York – Federal Plaza Immigration Court has asked DHS that PD positions be provided to the court on matters scheduled for a hearing at least three days before the hearing. This would allow cancellation of the interpreter order without cost to the court, and would permit another previously scheduled case to be advanced into the open hearing slot. In addition, the court is endeavoring to identify cases already scheduled which are likely to be granted PD based upon DHS guidelines. We have requested DHS’s assistance in this endeavor. [It is unclear whether other courts will request the same.]
NYT: The C.D.C. finally announced at the beginning of April that it would lift its public health border restrictions on May 23, around the time of the year when migration typically increases. But this past week, the issue of Title 42 flared up again as Senate Republicans and some Democrats in Congress held up Covid funding in an effort to protest the administration’s decision to lift the health rule and tensions over the issue flared in both parties. See also The Democratic revolt over Biden’s border policy.
Hill: Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) told The Hill that they want to bring together a group of senators interested in trying to revive immigration discussions — a perennial policy white whale for Congress — after a two-week recess.
NPR: Visitations at federal and state prisons have largely resumed. Last year, for example, the Washington state Department of Corrections determined it was safe to reinstate visitations. But those who want to talk to loved ones in ICE detention must still rely on old-fashioned phone calls or video.
WaPo: Although the Florida Keys have been an entry point for refugees fleeing communist Cuba since the 1960s, officials say the increase in arrivals of migrants by boat represents a shift in migration patterns. Since the start of the year, more than 800 Haitians have landed in the 113-mile-long Florida Keys, made up 1,700 small islands. Two of the landings occurred in Ocean Reef, an exclusive gated community near Key Largo that is home to some of nation’s wealthiest residents, officials said.
WaPo: Cuban migrants are coming to the United States in the highest numbers since the 1980 Mariel boatlift, arriving this time across the U.S. southern land border, not by sea.
AP: Texas Gov. Greg Abbott on Wednesday delivered new orders along the U.S.-Mexico border and promised more to come as former Trump administration officials press him to declare an “invasion” and give state troopers and National Guard members authority to turn back migrants.
Reuters: U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.
Law360: The Third Circuit declined to halt the deportation of a man from India claiming he suffered political persecution there, reasoning that the immigration judge was correctly skeptical of his inconsistent accounts of the violence he claimed to have experienced.
CA5: [W]hether an applicant’s subjective belief that authorities would be unwilling or unable to help them is sufficient for asylum eligibility when paired with country condition evidence supporting that belief, notwithstanding that the underlying events do not support that conclusion. We think not… When she checked in, the police informed her “that the process would take at least two weeks.” She fled before those two weeks expired, and there is no evidence of what happened with the claim. Thus, the evidence supports the BIA’s finding that Sanchez-Amador “successfully reported one incident with the gang member to the police, but did not pursue the issue.”
LexisNexis: “Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks review of a Board of Immigration Appeals decision dismissing, as untimely, his appeal of an immigration judge’s order denying, as time and number barred, his motion to reopen and dismiss. We VACATE the Board’s decision and REMAND the case for consideration in the first instance of the issue of equitable tolling.”
DHS: Al Otro Lado v. Mayorkas is a lawsuit that relates to the U.S. government’s use of “metering” at land ports of entry on the U.S.-Mexico border. The Court in this lawsuit issued a Preliminary Injunction(PI) prohibiting the U.S. government from applying a rule known as the “third-country transit rule”(TCT)to certain people who were subject to “metering” before the rule took effect on July 16, 2019.
AP: Pennsylvania State Police settled a federal lawsuit alleging troopers routinely and improperly tried to enforce federal immigration law by pulling over Hispanic motorists on the basis of how they looked and detaining those suspected of being in the U.S. illegally, officials announced Wednesday.
NYT: Clients paid fees up to $30,000 as part of the yearslong scheme, an affidavit said. Some applications falsely claimed the clients had been abused by their spouses, prosecutors said.
Law360: The city of San Antonio, Texas, has agreed to pay the state $300,000 to settle both allegations lodged by the state’s attorney general that it was violating the state’s “anti-sanctuary city law,” and a subsequent lawsuit seeking to remove the police chief from office for the alleged violations.
Law360: People who were banned from the U.S. under now-defunct Trump-era travel restrictions urged a California federal judge to order the Biden administration to revisit their denied visa applications, saying the administration’s attempts to redress the harm don’t go far enough.
Law360: A D.C. federal judge extended the stay of his order directing the State Department to issue more than 9,000 diversity visas while the Biden administration appeals to the D.C. Circuit, but he unfroze his directive for the department to update the technology for processing the visas.
Law360: The House Judiciary Committee voted to advance a bill that would eliminate the Immigration and Nationality Act’s per-country cap for employment-based visas and raise similar caps on family-based visas, aimed at trimming immigration backlogs.
AILA: On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)
AILA: On 3/11/22, CBP issued a memo to its Office of Field Operations stating that noncitizens in possession of a valid Ukrainian passport or other valid Ukrainian identity document, and absent national security or public safety risk factors, may be considered for exception from Title 42.
AILA: USCIS is issuing individual notices to certain TPS Syria beneficiaries whose applications to renew Form I-766 are pending. The notices extend the validity of their EADs until September 24, 2022. Guidance on filing Form I-9 is available.
DHS: The U.S. Customs and Border Protection (CBP) Unified Immigration Portal (UIP) provides agencies involved in the immigration process a means to view and access certain information from each of the respective agencies from a single portal in near real time (as the information is entered into the source systems). CBP is publishing this Privacy Impact Assessment (PIA) to provide notice of implementation of the UIP and assess the privacy risks and mitigations for the UIP.
USCIS: U.S. Citizenship and Immigration Services (USCIS) today announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The issue in Sanchez-Amador is whether a reasonable person in her position would believe that the Government of Honduras is “unwilling or unable” to protect her. On the facts set forth in the court’s decision, any reasonable person in her position would hold such a objectively reasonable view. Therefore asylum should have been granted.
The Honduran Government is so totally corrupt, inept, and disinterested in protecting its citizens, particularly women, that recent past “President Juan Orlando Hernandez [is] on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States–Northern Triangle Enhanced Engagement Act.” https://www.state.gov/u-s-actions-against-former-honduran-president-juan-orlando-hernandez-for-corruption/
Ricardo Zuniga, the U.S. Special Envoy to Central America recently said: “‘All we’re trying to do now is halt the slide’ of democracy and accountability, Zúniga said in an interview with The [L.A.] Times, ‘so that we can have some place to build from.’” https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A.
In other words, any a semblance of the rule of law and honest, minimally effective government in the Northern Triangle has long disappeared. Conditions are rapidly getting worse, rather than better. Conditions are so bad, that a better Administration or a better BIA could probably establish a “rebuttable presumption of failure of state protection in the Northern Triangle,” thus properly shifting to the DHS the burden of establishing, against all odds, that “state protection” against gangs and other basically uncontrolled third-party actors would actually be effective in a particular case.
This common sense action would also facilitate rapid, efficient, consistent, and correct approval of many credible, valid asylum claims now stuck in the endless, largely self-inflicted, backlogs at the Asylum Office and in Garland’s dysfunctional courts, not to mention at the border following two years of illegal suspension of our asylum laws. That’s as opposed to the unseemly “Institutionalized Refugee Roulette” now being played by Garland and his subordinates.
According to the Supremes in Cardoza-Fonseca and the BIA itself in Matter of Mogharrabi, asylum law is supposed to be generously applied to grant protection even where persecution, although reasonably possible, is significantly less than likely. But, in Garland’s dysfunctional “courts,” the current reality for vulnerable asylum seekers has moved far, far away from those supposed “norms.”
Although most asylum applicants come from nations with well-established records of serious endemic human rights abuses, “asylum denial rates” at EOIR range from 10% or less to a beyond outrageous 98% or more denials! Cases with basically the same facts might be routinely granted in one courtroom while being uniformly denied, usually for specious reasons, in the next.
Moreover, while the overall nationwide grant rate of around 37% appears unreasonably low but perhaps still within the outer bounds of “plausibility,” most of those grants are “concentrated” in a relatively small number of Immigration Courts, basically in the Northeast and in California. A disturbing number of IJs and courts are allowed, perhaps even encouraged, by Garland and his denial-oriented, Trump-holdover BIA to establish “asylum free zones.” In other words, Garland has looked the other way while some of “his courts” have basically become de facto “asylum death squads.”
Back to Ms. Sanchez-Amador. Under the circumstances shown by Ms. Sanchez-Amador, a “reasonable woman” would not expect any effective protection from the Honduran Government. The respondent has shown that her “expectation of no protection” was “fulfilled” in this case.
The respondent credibly testified that a gang member said she had a week to either pay him money or become “his woman,” join the gang, and have involuntary sex with him, that is, he threatened to rape her. When she dutifully reported this to the police (despite their well-deserved reputation for indifference to attacks on women), she was told that they would investigate but that it would take two weeks, and offered her no other protection or options in the interim.
In other words, in response to an imminent, credible threat of harm, the police told the respondent that they would do nothing to stop the harm that would be inflicted upon her in a week. By the time the police “investigated,” assuming they ever did which seems doubtful in light of conditions in Honduras, the respondent would be either extorted or raped and forced to join a gang against her will. While police in Honduras might have a well-deserved reputation for corruption and ineffectiveness, gangs, on the other hand, have a reputation for being ready, willing, and able to carry out their threats against women, usually with impunity.
Elementary asylum law tells us that it is neither reasonable nor required that a refugee wait to actually be persecuted before fleeing to safety. That’s exactly what a “well-founded fear” is!
Yet a panel of male, right-wing judges of the Fifth Circuit nonsensically and disingenuously concludes that “one would be hard-pressed to find that the authorities were unable or unwilling to help her [because] she never gave them the opportunity to do so.” Poppycock!
The police failed to offer the respondent any semblance of effective protection. Given the conditions in Honduras, and the credible threats the respondent had received, a reasonable woman in the respondent’s position would flee to safety at the first opportunity rather than waiting for the gang to carry out its credible threat of harm and for the police to, perhaps, but likely not, investigate after the fact!
Indeed, it’s no stretch to say that under the facts of this case, NO reasonable woman would have remained in Honduras if able to escape. Moreover, NO reasonable factfinder would conclude that she lacked a reasonable possibility of persecution there!
The panel judges have perverted, perhaps intentionally, the criteria for asylum, the standard for review, and misconstrued the record to deny legal protection to this refugee woman. But, there is an even deeper problem here. And, it goes to Attorney General Garland and his mismanagement of the entire, broken Immigration Court system.
I daresay that NO asylum expert would have handled this potentially perfectly grantable case the way this Immigration Judge and the BIA did. This whole process documents an ongoing, biased, unprofessional, designed-to-deny asylum system that unfairly attacks and threatens “the most vulnerable among us” — targeting women of color in a particularly racist-misogynistic way!
I hope that this particular example of injustice, inhumanity, and unprofessionalism at all levels of the judiciary isn’t what awaits long suffering asylum seekers if and when the Administration finally lifts the illegal “Title 42 Blockade/Charade” on May 23. But, I have little reason for optimism.
Beyond long overdue reversals of several Sessions/Barr bogus anti-asylum, anti-immigrant “precedents,” neither Garland or Mayorkas has shown much inclination to actually get asylum law right. Nor have they empowered or employed the human rights and due process experts who could lead them out of the wilderness in which their entire “denial and deterrence-oriented” system now wanders.
Perhaps ironically, the all-too-often lawless Fifth Circuit refuses to acknowledge even those modest actions by Garland to correct the law, notwithstanding the supposed “great deference” they claim to show the Executive in the area of immigration. Like much that the Fifth Circuit does these days, that “deference” appears reserved for White men and is not applied to vindicate the rights of “persons” who happen to be migrants, women, or people of color.
“Dred Scottification” of “the other” is NOT a legitimate legal theory. No, it’s part of the “anti-democracy activism” that threatens to destroy our legal system and take our nation down with it! ☠️
“This Dude loves the ‘Miller Lite’ approach to asylum by Garland and Mayorkas, as well as Harris’s latest tone-deaf ‘victim shaming.’” Keeps him (as well as human smugglers) in business! Reaper Image: Hernan Fednan, Creative Commons License
SAN MIGUEL, El Salvador — Rejected by her family, Zashy Zuley del Cid Velásquez fled her coastal village in 2014, the first of a series of forced displacements across El Salvador. She had hoped that in the larger city of San Miguel she could live as a transgender woman without discrimination and violence, but there she was threatened by a gang.
She moved away from San Miguel, then back again in a series of forced moves until the 27-year-old was shot to death April 25, sending shock waves through the close-knit LGBTQ community in San Miguel, the largest city in eastern El Salvador.
“Zashy was desperate; her family didn’t want her … and the gangsters had threatened her,” said Venus Nolasco, director of the San Miguel LGBTQ collective Pearls of the East. “She knew they were going to kill her. She wanted to flee the country, go to the United States, but they killed her with a shot through her lung.”
One day after Del Cid’s slaying, U.S. Vice President Kamala Harris identified anti-LGBTQ violence in Central America as one of the root causes of migration in the region during a virtual meeting with the president of neighboring Guatemala, Alejandro Giammattei. She is visiting Guatemala and Mexico this week.
Transgender migrants were present in the Central American caravans that attempted to reach the United States border in recent years, fleeing harassment, gang extortion, violence and police indifference to crimes against them. Even in those large migrant movements, they say they faced harassment.
Things had been rough during Del Cid’s first stint in San Miguel. She had been living in a neighborhood where, as in many parts of the country, the MS-13 gang was the ultimate local authority. Gang members began to harass her, then brutally beat her, breaking her arm in 2015, Nolasco said.
“They warned her to leave, but she didn’t listen,” Nolasco said.
Del Cid moved in with Nolasco in the same neighborhood. One day, the gang grabbed Del Cid again.
“They took her, they wanted to kill her,” Nolasco said. “I begged them not to kill her, to let her go and she would leave the neighborhood.”
Del Cid moved back to her hometown, but her family rejected her again. She tried to please them, but she couldn’t, Nolasco said. Del Cid joined a church, got a girlfriend and had a baby girl, but could not maintain that life, she said.
She returned to San Miguel, where initially things seemed to go better. In 2020, Del Cid received humanitarian and housing support from COMCAVIS TRANS, a national LGBTQ rights organization, and the United Nations High Commissioner for Refugees.
Del Cid rented a home and opened a beauty salon there. She hired another woman to help her and was participating in an entrepreneurship program. She was preparing a business proposal to move the salon into its own space.
But Del Cid was shot in the back walking alone at night down the street. Passersby tried to help her and took her to a hospital, where she died. So far, police have made no arrests, and Nolasco believes that like other hate crimes in the country, “it will be forgotten; they’re not interested in what happens to us.”
Laura Almirall, UNHCR representative in El Salvador, said Del Cid’s killing frightened her community and saddened everyone who knew her.
“She was excited about her new plans and her new life. And unfortunately and tragically, everything came to an end,” she said.
Nolasco said that in San Miguel, some 70 miles east of the capital, the transgender community endures constant harassment from intolerant residents and gangs. They have rocks thrown at them, are beaten and are victims of extortion. If they go to police to make a report, they are insulted and demeaned. “Don’t come here to claim rights, because there are no rights for you,” police tell them, Nolasco said.
. . . .
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Read the rest of the article at the link.
Despite some legal nonsense from EOIR and sometimes from uninformed Circuit Judges who have never represented asylum seekers and know little of actual conditions in the Northern Triangle, neither El Salvador nor the other Northern Triangle governments are “willing and able” to protect most individuals suffering gender-based and other forms of persecution.Decisions claiming otherwise are, in most cases, legally wrong and disingenuous to boot.
The U.S. asylum system needs expert Asylum Officers at DHS and progressive expert Immigration Judges at EOIR. Babbling (misleadingly) about “sealed borders” won’t take the place of telling Garland and Mayorkas to stop screwing around, bring in progressive experts, and fix the U.S. asylum system before more die! V.P. Harris could have taken the first necessary step toward “fixing the Southern Border” without even leaving DC.
How are we going to promote the rule of law in other nations when we ourselves are unwilling to exhibit honesty and follow the law with respect to the most vulnerable in the world seeking legal refuge at our borders?
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski reports for LexisNexis Immigration Community:
“Diaz de Gomez claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang’s extortion and other demands. … [W]e reject the Board’s “excessively narrow” view of the nexus requirement, and conclude that Diaz de Gomez established that her familial ties were one central reason for her persecution. … We also hold that the record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s claims in light of our holdings.”
So, let’s compare the 4th Circuit’s view with the most recent abomination and intentional misconstruction of the “unable or unwilling to control” doctrine by totally unqualified political hack Jeffrey Rosen, then impersonating the “Acting Attorney General” and issuing clearly unconstitutional “precedents” to implement the defeated regime’s racially biased, misogynistic, anti-asylum agenda.
Talk about “crimes against humanity!” ☠️🏴☠️ Certainly, every current civil servant who supported and advanced this bogus designation should be held accountable.
Kakistocracy Kills: Obviously, with better qualified judges, competent representation, and a fair system operated in accordance with due process and a proper interpretation of asylum laws, many of those now being arbitrarily, capriciously, and unlawfully turned back at our borders would be entitled to our legal protection. This is life or death, not a problem that can “wait till tomorrow” to be addressed! Every day that the patently inadequate “judges” currently on the BIA remain in their positions means more injustice, trauma, and even death for legitimate asylum seekers!
A Better Approach to “Unable or Unwilling” Analysis?
“K.H., a Guatemalan native and citizen, was kidnapped, beaten, and raped in Guatemala when she was seven years old.” That horrifying sentence begins a recent decision of the U.S. Court of Appeals for the Sixth Circuit denying asylum to that very same youth.
In that case, DHS actually stipulated that the applicant was persecuted on account of a statutorily protected ground. But the insurmountable hurdle for K.H. was her need to establish that the government of Guatemala was unable or unwilling to control the gang members who had persecuted her.
Asylum is supposed to afford protection to those who are fleeing something horrible in their native country. Somehow, our government has turned the process into an increasingly complex series of hoops for the victim to jump through in order to merit relief. Not long after Congress enacted legislation in 2005 making it more difficult for asylum seekers to be found believable, the Seventh Circuit Court of Appeals acknowledged that “asylum hearings are human events, and individuals make mistakes about immaterial points…Basing an adverse credibility finding on these kinds of mistakes appears to be more of a game of ‘gotcha’ than an effort to critically evaluate the applicant’s claims.” Sankoh v. Mukasey, 539 F.3d 456, 470 (7th Cir. 2008). More recent developments have extended the game of “gotcha” beyond credibility determinations and into substantive questions of law.
It is recognized that one can qualify for asylum where the persecutors are not part of the government, provided that the government is either unable or unwilling to control them. In a recent amicus brief, the Office of the United Nations High Commissioner for Refugees (UNHCR) correctly stated what seems obvious: that “the hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors.” As the whole point of asylum is to provide humanitarian protection to victims of persecution, of course the test must be the effectiveness of the protection. UNHCR continued that the fact that a government has enacted laws affording protection is not enough, as “even though a particular State may have prohibited a persecutory practice…the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively.”
When I was an immigration judge, I heard testimony from country experts that governments were often inclined to pass laws or even create government agencies dedicated to the protection of, e.g. religious minorities solely for cosmetic reasons, to give the appearance to the international community that it was complying with international human rights obligations, when in reality, such laws and offices provided no real protection. But UNHCR recognizes that even where there is good intent, “there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities.”
Yet U.S. law has somehow recently veered off course. In unpublished decisions, the BIA began applying what seems like a “good faith effort” test, concluding that the asylum applicants had not met their burden of establishing that the government was “unable or unwilling to protect” if there was evidence that the government showed some interest in the issue and took some action (whether entirely effective or not) to provide protection. Such approach wrongly ignored whether the government’s efforts actually resulted in protecting the asylum seeker. Next, former Attorney General Jeff Sessions weighed in on the topic in his decision in Matter of A-B-, in which he equated a government’s unwillingness to control the persecutors (which could potentially be due to a variety of factors, including fear, corruption, or cost) with the much narrower requirement that it “condone” the group’s actions. He further opined that an inability to control requires a showing of “complete helplessness” on the part of the government in question to provide protection. These changes have resulted in the denial of asylum to individuals who remain at risk of persecution in their country of origin.
In K.H., it should be noted that the evidence that convinced the BIA of the Guatemalan government’s ability to afford protection included a criminal court judge’s order that the victim be moved to another city, be scheduled for regular government check-ins as to her continued safety there (which the record failed to show actually occurred), and the judge’s further recommendation that the victim seek a visa to join her family in the U.S. A criminal court judge’s directive to move to another city and then leave for a safer country hardly seems like evidence of the Guatamalan government’s ability or willingness to provide adequate protection; quite the opposite. But that is how the BIA chose to interpret it, and somehow, the circuit court found reason to let it stand under its limited substantial evidence standard for review.
Challenges to these new interpretations are reaching the circuit courts. Addressing the issue for the first time, the Sixth Circuit in K.H. created a rather involved test. The court first set out two broad categories, consisting of (1) evidence of the government’s response to the asylum seeker’s persecution, and (2) general evidence of country conditions. WIthin broad category (1), the court created three subcategories for inquiry, namely: (1) whether the police investigated, prosecuted, and punished the persecutors after the fact; (2) the degree of protection offered to the asylum seeker, again after the fact of their being persecuted, and (3) any concession on the part of the government, citing a Third Circuit decision finding a government’s relocation of a victim to Mexico as an admission by that government of its own inability to provide adequate protection. (Somehow, the criminal judge’s order to relocate K.H. to another city and then seek a visa to the U.S. was not viewed as a similar concession by the BIA.)
Under broad category (2) (i.e. country conditions), the court established two subcategories for inquiry, consisting of (1) how certain crimes are prosecuted and punished, and (2) the efficacy of the government’s efforts.
Some shortcomings of this approach jump out. First, many asylum applicants have not suffered past persecution; their claims are based on a future fear of harm. As the Sixth Circuit approach is based entirely on how the government in question responded to past persecution, how would it apply to cases involving only a fear of future persecution?
Secondly, and more significantly, the Sixth Circuit’s entire approach is to measure how well a government acted to close a barn door after the horse had already escaped. The test is the equivalent of measuring the owner of a china shop’s ability to protect its wares from breakage by studying how quickly and efficiently it cleaned up the broken shards and restocked the shelves after the fact.
I would like to propose a much simpler, clearer test that would establish with 100 percent accuracy a government’s inability or unwillingness to provide effective protection from a non-state persecutor. The standard is: when a seven year old girl is kidnapped, raped, and beaten, the government was presumably unable to provide the necessary effective protection.
If this seems overly simplistic, I point to a doctrine commonly employed in tort law, known as res ipsa loquitur, which translates from the Latin as “the thing speaks for itself.” It is something all lawyers learn in their first year of law school. I will use the definition of the concept as found on the Cornell Law School website (which is nice, as I recently spoke there), which reads:
In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.
The principle has been applied by courts since the 1860s.
So where the government has stipulated that the respondent suffered persecution on account of a protected ground, should we really then be placing the additional burden on the victim of having to satisfy the “unable or unwilling” test through the above line of inquiry set out by the Sixth Circuit? Or would it be more efficient, more, humane, and likely to reach a more accurate result that conforms to the international law standards explained by UNHCR, to create a rebuttable presumption of asylum eligibility by allowing the asylum applicant to establish that the persecution would not ordinarily have occurred if the government had been able and willing to provide the protection necessary to have prevented it from happening? The bar would be rather low, as seven year olds should not be kidnapped, raped, and beaten if the police whose duty it was to protect the victim were both able and willing to control the gang members who carried out the heinous acts. The standard would also require a showing that such harm occurred in territory under the government’s jurisdiction (as opposed to territory in which, for example, an armed group constituted a de facto government).
Upon such showing, the burden would shift to DHS to prove that the government had the effective ability and will to prevent the persecution from happening in the first place (as opposed to prosecuting those responsible afterwards) by satisfying whatever complex, multi-level inquiry the courts want to lay out for them. However, DHS would not meet its burden through showing evidence of the government’s response after the fact. Rather, it would be required to establish that the Guatemalan government provides sufficient protection to its citizens to prevent such harm from occurring in the first instance, and that what happened to the asylum applicant was a true aberration.
Shifting the burden to DHS would make sense. It is often expensive to procure a respected country expert to testify at a removal proceeding. As more asylum applicants are being detained in remote facilities with limited access to counsel, it may be beyond their means to retain such experts themselves. The UNHCR Handbook at para. 196 recognizes the problems asylum seekers often have in documenting their claims. It thus concludes that “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.”
Furthermore, ICE attorneys who should welcome the role of such experts in creating a better record and increasing the likelihood of a just result have taken to disparaging even highly respected country experts, sometimes subjecting them to rather hostile questioning that slows down proceedings and might discourage the participation of such experts in future proceedings. Therefore, letting ICE present its own experts might prove much more efficient for all.
Incidentally, UNHCR Guidelines published last year state that while the Guatemalan government has made efforts to combat gang violence and has demonstrated some success, “in certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection…” The report continued that some temporary police operations have simply caused the gangs to move their operations to nearby areas. The report further cited the problem of impunity for violence against women and girls, as well as other groups, including “human rights defenders, legal and judicial professionals, indigenous populations, children and adolescents, individuals of diverse sexual orientations and/or gender identities, journalists and other media workers.” The same report at pp. 35-36 also references corruption within the Guatemalan government (including its police force) as a “widespread and structural problem.” DHS would have to present evidence sufficient to overcome such information in order to rebut the presumption triggered by the fact of the persecution itself.
Another benefit of the proposed approach would be its impact on a victim’s eligibility for a grant of humanitarian asylum, which may be granted based on the severity of the past persecution suffered even where no fear of future persecution remains. A child who was kidnapped, raped, and beaten by gang members at the age of seven, and who will certainly suffer psychological harm for the rest of her life as a result, should clearly not be returned against her will to the country in which she suffered such horrific persecution. Yet the Sixth Circuit upheld the BIA’s denial of such humanitarian protection, because in affirming the Board’s conclusion that K.H. had not met her burden of showing the Guatemalan government was unable and unwilling to protect her (based solely on its after-the-fact response), it also upheld the BIA’s finding that K.H. did not meet all of the requirements necessary for her to have established that she suffered past persecution. This in spite of the fact that DHS stipulated that she did suffer past persecution on account of a statutorily protected ground. As only an applicant who established past persecution is eligible for humanitarian asylum, this very convoluted approach successfully blocked such remedy.
However, if the standard were to assume that the harm suffered by the asylum applicant triggers the presumption that the Guatemalan government was unable or unwilling to prevent it, the evidence that government’s subsequent efforts to prosecute those responsible and protect the victim would not serve to rebut the presumption. Rather, it would be considered as possible evidence of changed conditions in the country of origin sufficient to show that after suffering past persecution, the asylum applicant would now have no further fear of returning there. This critical distinction would then allow K.H. to be granted humanitarian asylum even if the government prevailed in its arguments, as opposed to facing deportation that would return her to the scene of such extreme persecution.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
The Immigration Court: Issues and Solutions
More bad news for you irresponsible “judicial dudes.” “No reasonable adjudicator” could have reached the conclusion you did in this case!
Like Judge Chase, I’ve done enough of these cases, at both the trial and appellate level, to know a clear grant when I see one. Indeed, on this record, the idea that the Guatemalan government is willing or able to protect this young lady is preposterous. It doesn’t even pass the “straight face” test. So much for hiding behind your “standards of review” fiction. Think of K.H. as your daughter or granddaughter rather than
“a mere stranger” and then see how your “head in the sand” legal analysis works out.
The questionable conduct of the judges at all three levels in this case shows why our current Immigration Court system is so screwed up. Individuals who could efficiently be granted protection at the lowest levels in an honest, well-functioning, and professional system are instead made to ”run the judicial gauntlet” while various “black robes” work hard and occupy time looking for reasons to “stiff” their valid claims for protection. Indeed, in a well-functioning system, cases like this would be granted at the Asylum Office level and wouldn’t clog the courts in the first place.
An independent judiciary with courage and integrity is essential to the survival of our democracy. Sadly, this case is a prime example of a system in failure — at all levels.
Rosales Justo v. Sessions, 1st Cir., 07-16-18, published
PANEL: Torruella, Lipez, and Kayatt Circuit Judges
OPINION BY: Judge Lipez
KEY QUOTE:
In sum, the BIA’s justifications for its holding that it was clearly erroneous for the IJ to find that the Mexican government is unable to protect Rosales reflect multiple errors. The BIA failed to consider evidence of the Mexican government’s inability to protect Rosales and his nuclear family, as distinct from evidence of the willingness of the police to investigate the murder of Rosales’s son. That error in conflating unwillingness
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and inability was compounded when the BIA discounted country condition reports which, when combined with Rosales’s testimony about the particular circumstances of his case, were sufficient to support the IJ’s finding that the police in Guerrero would be unable to protect Rosales from persecution by organized crime.
The BIA committed further error by concluding that the IJ’s finding that Rosales did not report threats by organized crime to the police refuted the IJ’s ultimate finding of inability. The BIA both ignored our precedent stating that a failure to report a crime does not undermine an assertion of inability if a report would have been futile, and failed to consider evidence in the record that would support a finding of futility, thereby misapplying the clear error standard. Moreover, in another misapplication of the clear error standard, the BIA incorrectly concluded that the IJ’s inability finding was clearly erroneous because the Mexican government’s failure to protect Rosales was indistinguishable from the struggles of any government to combat crime, when the record before the IJ supported a finding that it was distinguishable.
Because of these errors, we grant Rosales’s petition and remand to the BIA for further proceedings consistent with this opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam) (holding that remand to the BIA is generally the appropriate remedy when the BIA commits a legal error).
So ordered.
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Nice to see a Circuit Court, particularly a fairly conservative one like the First Circuit, take strong stand against the nonsense and mockery of Due Process and justice going on at EOIR under Sessions;
Expect more of these in the future as the “Just Find A Way To Deny & Deport” initiative by the xenophobic, scofflaw AG goes into high gear at EOIR;
Quite contrary to everything Sessions has been saying, which completely ignores the lessons of the Supreme Court’s decision in INS v. Cardoza Fonseca, asylum law is supposed to be interpreted and applied generously in favor of those seeking life saving protection;
This case illustrates the importance of dissent at the BIA, as the First Circuit basically adopted the correct interpretation of the law and facts set forth by a dissenting (female) BIA Appellate Immigration Judge;
This also shows the importance of full three-judge review by the BIA on asylum cases, rather than single judge panels or summary denials;
The number of fundamental errors committed by the BIA panel majority in reversing this asylum grant and the persistence of the DOJ in advancing untenable legal positions before the Court of Appeals is simply appalling, even if consistent with Session’s own lack of scholarship and total disrespect for fundamental fairness to respondents in Immigration Court;
This case also highlights a chronic problem in EOIR asylum adjudication: conflating “willingness to protect” with “ability to protect.” Too many Immigration Judges and BIA Appellate Judges seize on ineffective efforts by local police, cosmetic improvements by governments, and failure to seek (largely useless and perhaps actually harmful) police assistance to find that there has been “no failure of state protection;”
That’s exactly what Sessions himself did in his fundamentally flawed opinion in Matter of A-B-. He encouraged judges to conflate ineffective efforts to protect with actual ability to protect. And, his comparison of how domestic violence is policed and prosecuted in the United States with El Salvador’s pathetic efforts in behalf of domestic violence victims was simply preposterous;
This decision also addresses another chronic problem at EOIR: judges “cherry picking” the record and particularly Department of State Country Reports for the information supporting a denial, even though the record taken as a whole lends support to the respondent’s claim;
Once again, how would any unrepresented applicant make the kind of potentially winning asylum case presented by this respondent with the assistance of counsel? When are Courts of Appeals finally going to state the obvious: proceeding to adjudicate an asylum claim by an unrepresented respondent is a per se denial of Due Process!
This case should be taken as a message that Immigration Judges and BIA panels following the misguided Sessions’ dicta on “unwilling or unable to protect,” rather than applying the correct standards set forth by most Circuits are going to be getting lots of “do overs” from the Circuit Courts;
How could anybody justify “speeding up” a system with this many fundamental (and life-threatening) flaws to begin with? Under Sessions, EOIR is on track to becomes veritable “reversible error factory” — as well as a “Death Railroad!”
“In Castro-Martinez, we also failed to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture. Rejecting Castro’s claim that, in Mexico, a systematic pattern or practice of persecution against homosexuals remained, we found Castro’s evidence unpersuasive “in light of recent country reports,” which showed that the “Mexican government’s efforts to prevent violence and discrimination against homosexuals . . . ha[d] increased in recent years.” Castro- Martinez, 674 F.3d at 1082.
Mexico is to be lauded for its efforts. But it is well recognized that a country’s laws are not always reflective of actual country conditions. It is not unusual that a country’s “de jure commitments to LGBTI protection do not align with the de facto reality of whether the State is able and willing to provide protection.” Brief for UNHCR as Amicus Curiae at 4. And we have recently recognized that Mexico has experienced “an increase in violence against gay, lesbian, and transgender individuals during the years in which greater legal protections have been extended to these communities.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (emphasis in original).
Moreover, the anti-discrimination efforts discussed in Castro-Martinez seem to have been made by the national government, and thus do not necessarily reveal anything about the practices within state or municipal jurisdictions. See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013) (noting that while Mexico’s national government was willing to control the drug cartel that attacked the petitioner, it was not necessarily able to do so, in part because state and local officials were involved with drug traffickers).”
Writing for the dissent, Judge Bea (who claims to be the only U.S. Circuit Judge to actually have been the subject of deportation proceedings), joined by Judge O’Scannlain:
“I respectfully dissent from the majority opinion because it usurps the power of the Board of Immigration Appeals (BIA) to determine facts. It does this by reciting, but ultimately departing, from the “substantial evidence” standard which states that agency “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).”
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The Administration apparently believes that cases like this are going to be resolved on an “assembly line” operation with U.S. Immigration Judges sitting in “shifts” in detention centers from 6 AM until 10 PM.
While notable for its potential precedential effect, this case is not particularly unusual in terms of the difficult factual and legal issues that arise daily in U.S. Immigration Court in asylum cases coming from countries “south of our border.” This happened to be Mexico, but LGBT cases involving individuals from the Northern Triangle are quite common, even in jurisdictions like the Arlington Immigration Court.
I note that the amicus views of the UNHCR fare much better in the majority’s decision than they typically do these days at the BIA. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 248 (BIA 2014), the BIA summarily “blew off” the views of the UNHCR on the issue of “particular social group.”
It’s also interesting that notwithstanding the dissent, the BIA actually lacks de novo fact finding authority of its own. Following a regulation change during the “Ashcroft era,” that authority belongs to the Immigration Judge with review by the BIA for “clear error.”
