My good friend and esteemed retired colleague Judge Wayne Iskra of the Arlington Immigration Court used to apply a basic common sense rule: handing over your lunch bag with a couple of tacos (or a ham sandwich) or the equivalent would not be considered “material” support. I don’t remember him ever getting reversed on it; perhaps nobody wanted to appeal. I also used it with success during my time in Arlington.
Now, it seems like a BIA panel is thinking along the same lines in an unpublished opinion written by Appellate Immigration Judge John Guendelsberger for a panel that also included Chairman/Chief Appellate Immigration Judge David Neal and Appellate Immigration Judge Molly Kendall Clark.
Read the entire, relatively short, opinion here.
Seems that this is just the type of important issue on which the BIA should issue a precedent decision. I’m not sure that all BIA panels are handling this issue the same way.
Thanks to Professor Stephen Yale-Loehr at Cornell Law and Dan Kowalski over at LexisNexis for sending this my way.
PWS
05-30-17
Guendelsberg, David Neal and Molly. As good as it gets.
Although Molly became a BIA member 2016, all of us know she wrote the most important BIA cases ever: Mogharrabi , Chen (1989), Herrera (1981), McKee (1980), Healy and Goodchild (1979), and many more.
Pardon me John and David while I rave about our Molly. She is the BIA’s own John Madison whose work before becoming President writing the US Constitution, and explaining it in the Federalist Papers will always overshadow everything else anyone can also accomplish.
Well, perhaps not surprisingly, this particular panel, is a “throwback” to the days when we served together as Appellate Judges at the BIA.
Judge Kendall Clark (“Molly”) was my Counsel and also handled important labor negotiations for me.
Judge Grendelsberger (“John”) served with us on the Board and was one of the “Gang of Five” sent into exile by Ashcroft. Eventually, after serving time in a “reeducation camp,” John was “rehabilitated” and reappointed to the BIA by AG Eric Holder. He thus was the only member of the Gang of Five to achieve full rehabilitation.
Chairman/Chief Appellate Judge Neal (“David”) was hired by me from the private sector as a Senior Attorney Adviser on the Board Staff. I had worked with David in several capacities in my prior lives.
I just wish the BIA would return to actually applying the generous standards of Mogharrabi and Cardoza-Fonseca and putting due process for asylum seekers first and foremost. Since our departure, the BIA has gradually abandoned the Mogharrabi and Cardoza approaches in practice in favor of a perhaps more “politically safe” restrictive approach to asylum. Poor decision making and leadership by the BIA on largely Central American asylum cases has contributed to the current docket mess at EOIR.
Many of the recent arrivals should properly have been granted asylum. This not only would have taken those cases off the overcrowded Immigration Court dockets, but also would have put pressure on the Obama Administration to exercise TPS authority for recent arrivals from the Northern Triangle in lieu of having to do time consuming case-by-case adjudications.
Failure by the BIA to protect the rights of asylum seekers has also allowed the alarming inconsistencies in Immigration Judge asylum grant rates and the ridiculously low asylum grant rates in places like Atlanta and Charlotte to continue and fester. While this might not any difference internally, I can assure you that it has been recognized across large segments of the public and is steadily eating away at the Immigration Court’s reputation for fairness, impartiality, and protecting due process.
No Administration lasts forever, and there will be some “down the road” consequences to EOIR’s turning a deaf ear to the plight of vulnerable asylum seekers and other individuals who expect justice from our courts. It didn’t have to be this way. But, it is, and we’ll all have to deal with the consequences now and in the future.
That’s the mission of the “New Due Process Army.” And they are already in the field and on the move.
Cheers,
Paul
How Molly wrote Mogharrabi illustrates the old BIA, a/k/a Milhollan Best Practices at its best.
The US Supreme Court had just decided Cardoza-Fonseca which from our adjudicators perspective, required a lower likelihood of persecution (the famous one lion/10 doors) reasonable man test who would not open any of the 10 doors. Dave Holmes asked our staff to search for a case that would help our adjudicators apply Cardoza-Fonseca objectively, so BIA looked for cases that added objective new facts, i.e. not simply an identical Nicaraguan easily pigeonholed as Cardoza junior. We all looked per DBH’s request.
Molly liked Mogharrabi, then in my pile because it was an Iranian with a WFF per the new test, without being pigeon holed as typical Iranian case either. Unlike most Iranian cases, the incident that Mogharrabi detailed took place at an Iranian consulate in the USA was clear and convincing.
BIA had already explored levels of required proof in Acosta exceptionally, albeit for the “more likely than not” withholding standard. Board Members Mary Dunn and Phil Morris worked on it. To make a long story shorter, Molly then convinced the BIA that what would work best for Mogharrabi was not reinventing the wheel, but instead changing one word in Acosta! Simply remove the word “clearly” from the Acosta test. The BIA approved unanimously. That edit job certainly beats any other I ever saw anywhere since 1978.
Happy Birthday Molly, a few days late!
G
Mogharrabi is a great case. Unfortunately, it is more cited than followed at the BIA and Immigration Court. If it were actually followed and reinforced by the BIA, the asylum grant rate would be about 70 – 75% nationwide. That’s particularly true after 8 CFR 208.13 (presumption of future persecution from past persecution) essentially reinforced Mogharrabi and Cardoza. Too many IJs and BIA panels still work hard to avoid granting cases that deserve to be granted under Mogharrabi and 8 CFR 208.13. But, on the bright side, since Mogharrabi was decided grant rates have gone from about 10% to close to 50%. And others are protected under withholding and CAT. So, there has been some progress in implementing the “letter and spirit” of Cardoza and Mogharrabi.
Thanks for your comments.
Best,
Paul
As to adjudicators applying Mogharrabi, etc. Yogi Berra said it best. If they don’t want to come, you can’t stop them!