"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
The Mexican migrant, slouching in his baggy jail garb, was caught crossing the border and the federal judge in San Diego wanted an explanation.
“I’ll stay in Mexico and won’t come back again,” said Carlos Arizmendi-Dominguez, 34, a former dairy farmer who was trying to return to his family in Idaho.”I ask forgiveness.”
“I’m not here to forgive,” Magistrate Judge William V. Gallo replied.
Across the Southwest border, the crackdown on illegal crossings announced in April 2017 by U.S. Atty. Gen. Jeff Sessions is gaining traction, as immigration caseloads soar and overburdened judicial districts struggle to keep up. Detention space is reaching capacity, courthouses are scrambling to maintain security, and some judges say they have reached their limit.
On Monday, Sessions expanded the crackdown to include more first-time crossers, asylum seekers and parents who will be separated from the children to face prosecution — a move toward “zero tolerance” that will likely further overload the system.
Nowhere are the changes more noticeable than in California. In the southern federal district in San Diego, 1,275 cases were filed in the first three months of this year. Prosecutors now plan to boost criminal immigration filings to about 1,000 per month, according to district data and attorneys at the Federal Defenders of San Diego, who have been notified of increasing prosecution levels by the U.S. attorney’s office.
At that pace, prosecutions could top 9,000 for the year, triple last year’s total and the most since at least since 2000, according to district data.
Prosecutions have gone up about 70% this fiscal year in Arizona, where the chief U.S. District Court judge said this week that the courts can’t take any more cases without additional judges, attorneys, interpreters, deputy marshals and courtroom space.
“If they want to increase prosecutions to a level more than [the] 75 per day that we’re doing, we need pretty much everything,” Judge Raner Collins said.
Most migrants caught at the border are still sent back to Mexico without being prosecuted. By boosting criminal filings, the Trump administration hopes to deter illegal crossings, even as border arrests remain near historic lows.
Migrants prosecuted in California typically have criminal records or, like Arizmendi-Dominguez, have been previously deported, but more first-time crossers are also being charged. Most recently, prosecutors filed criminal charges against 11 members of the caravan of migrants seeking asylum in the U.S.
Sentences for the misdemeanor violations range from 30 to 180 days, depending on the circumstances.
The surge provides fresh evidence for the Trump administration to claim it is following through on its hard-line anti-illegal immigration rhetoric. But the rapid expansion has shown that the judicial system’s shortcomings could also make it harder for the administration to achieve its “zero tolerance” goals, outlined last month by Sessions in response to what he called a border “crisis.”
The U.S. Border Patrol in San Diego still turns over only a fraction of the 120 migrants, on average, it catches daily along the 60-mile stretch it patrols.
The bottlenecks are many: Bed space is in such short supply that migrants are held in jails as far away as Santa Barbara and Arizona, defense attorneys say. There aren’t enough U.S. deputy marshals to transport defendants and provide sufficient security in courtrooms.
Agents from other federal agencies, including Immigration and Customs Enforcement and the Border Patrol, have to provide assistance. And recent court rulings have restricted courts from carrying out fast-track, mass prosecutions like one in Arizona a few years ago known as Operation Streamline, which generated protests.
Attorneys in San Diego say more of their clients are being detained outside the county, making it harder for them to provide an effective defense.
“I would guess that a great deal of those cases will be people with no prior criminal record or prior convictions, which is a sad way to spend our resources,” said Kasha Castillo, a supervisory attorney at the Federal Defenders of San Diego.
Some agencies are receiving more resources; Sessions announced this month that border districts will get 18 new immigration judges and 35 new prosecutors, including eight in California.
“The American people made very clear their desire to secure our border and prioritize the public safety and national security of our homeland,” Sessions said in a statement.
The prospect of facing criminal charges causes some migrants think twice about crossing the border, studies have found. In border areas like Yuma, Ariz., where zero tolerance has been the policy for years, the approach has contributed to record decreases in border arrests.
Across the country, migrants who have been prosecuted for illegal crossing are less likely to attempt to cross again than those who were simply sent back, according to a study by the Migration Policy Institute.
But the deterrent effect varies depending on migrants’ motivations. Mexicans coming to the U.S. for economic reasons are more likely to be deterred by prosecution than Central Americans who are fleeing crime and political instability.
“People from Central America aren’t so easily deterred because conditions are worse there than in Mexico,” said Randy Capps, director of research for U.S. programs at the Migration Policy Institute, who co-wrote the 2017 study.
In the past two weeks the Justice Department has moved swiftly to stiffen penalties against Central Americans — by filing charges against the 11 asylum seekers from the caravan, and by threatening parents with arrest if caught crossing with their children.
“If you are smuggling a child, then we will prosecute you and that child will be separated from you as required by law,” Sessions said at a San Diego news conference Monday.
Sen. Dianne Feinstein (D-Calif.) called the crackdown on families a “cruel” tactic that betrays the country’s values on basic human rights.
“The goal of this policy is to inflict pain and suffering on people who have already put their lives at risk. We’re better than this,” Feinstein said in a statement.
For now, the majority of migrants being prosecuted in San Diego’s downtown federal courthouse are repeat offenders from Mexico. The cases generally result in plea bargains. Migrants are charged with illegally reentering the country — a felony — and plead guilty to the misdemeanor charge of improper entry.
Defendants file into court several times a week, the sketchy details of their cross-border lives elicited in brief exchanges with magistrate judges.
“I’m guilty only because I wanted to see my daughter,” said Jose Espinoza-Rivera, who said he was going to New York City.
“My only intention was to return to my children,” said Hilario Castaneda Avalos, who lived 17 years in Arizona, caring for his three grandchildren, all U.S. citizens.
When a 56-year-old man with eight previous deportations showed up in court one morning in March, Magistrate Judge Mitchell D. Dembin greeted him warmly; he had seen him before in his courtroom.
“Your persistence in coming back is commendable in one respect, but it shows a lack of respect of U.S. laws,” Dembin said.
Defendants wear jail-issued grays but are not shackled. A ruling last year by the 9th Circuit Court of Appeals barred the practice, saying defendants shouldn’t be required to “stand before a court in chains without having been convicted.”
The ruling has constrained caseloads because security guidelines require at least one U.S. deputy marshal to guard each unshackled defendant in the courtroom. When defendants were shackled, groups of up to 12 could be processed at a time in each courtroom.
The hearings move quickly, with the key decision-making centered on how long the sentence will be. Judges usually follow prosecutors’ recommendations, but not always.
Arizmendi-Dominguez, the former dairy farmer from Idaho, said through his attorney that since his last deportation he had spent six years working as a farm laborer in corn and bean fields in Mexico, and that he attempted to return because he longed to see his family, including his father, a U.S. citizen.
Prosecutors recommended a 60-day sentence. Gallo, the judge, sentenced him to 75 days, saying a tougher sentence might “get his attention.”
“I hope you can make a life for yourself in Mexico and I hope its a prosperous life, but you can’t keep coming back to the U.S.,” Gallo said. “The penalties are only going to get worse.”
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This is what the “Aimless Docket Reshuffling” that has crippled the U.S. Immigraton Courts since at least 2001 looks like. Now, it’s coming to the U.S. District Courts. The difference: The Article III Courts don’t work for Sessions, aren’t evaluated by him and his subordinates, can’t be fired or transferred by him, and aren’t subject to bogus “quotas.” They are actually independent judges.
Thinking about what he’s done, or not.By Mike Segar/Reuters.
When Lexington Avenue lothario Rudy Giuliani declared last month that he would be joining Donald Trump’s august legal team, he said that he would only be taking a “leave of absence” from his law firm, Greenberg Traurig, because it’d take just a week, two weeks tops, to resolve the Mueller investigation. On Thursday, though, the law firm announced that the leave of absence has, sadly, become permanent, with Giuliani tendering a “resignation” letter on Wednesday. “After recognizing that this work is all consuming and is lasting longer than initially anticipated, Rudy has determined it is best for him to resign,” the firm’s chairman, Richard A. Rosenbaum, said in a statement. So that’s the party line. More likely, as others have speculated, “America’s Mayor” was told he had 24 hours to cough up a letter announcing his departure, or the firm would cough it up for him.
Greenberg Traurig might have seen this one coming. For starters, any lawyer worth their salt could have told Giuliani that defending the president of the United States in an investigation into possible collusion with a foreign power couldn’t be a side hustle. Second, no one outside of Giuliani actually thought that the Mueller case was going to wrap up in two weeks, or even a month. Perhaps Giuliani’s former bosses would even have granted him a sabbatical, and then allowed him back, if the words coming out of his mouth since joining Team Trump hadn’t become so thoroughly mortifying by association. While Giuliani has said a number of cringe-worthy things since joining Trump’s legal team—that he fantasizes about riding to Ivanka Trump’srescue; that it would have been really bad if the Stormy Daniels story got out a month before the election, etc.—perhaps the most embarrassing was his appearance on Sean Hannity, wherein he implied any lawyer worth his salt has pulled a Michael Cohen.
At his law firm, the sentient denture suggested, such payments porn-star payouts were standard practice. “That was money that was paid by his lawyer, the way I would do, out of his law firm funds,” Giuliani said. Cohen, he added, “would take care of things like this like I take care of this with my clients.” You can see how Greenberg Traurig might have come to the conclusion that Giuliani was not the ideal advertisement for the firm.
Indeed, according to The New York Times, they were not pleased at all. “Firm partners . . . chafed over Mr. Giuliani’s public comments about [the] payments,” write reporters Michael S. Schmidt and Maggie Haberman. They were particularly displeased by the implication, which Giuliani spake as gospel, that it’s perfectly normal for a lawyer to secretly take the initiative to silence the porn stars who say they banged their clients. At least not without informing their client first. “We cannot speak for Mr. Giuliani with respect to what was intended by his remarks,” Jill Perry, a spokesperson for the firm, told the paper. “Speaking for ourselves, we would not condone payments of the nature alleged to have been made or otherwise without the knowledge and direction of a client.”
Also likely playing into Greenberg Traurig’s decision to happily part ways with ole Rudy? The fact that in his short time representing Trump, he’s made a name for himself as one of the worst lawyers of all time, so comically bad that even Donald Trump, Mr. Incompetent, can’t believe what a terrible job he’s doing. Those sorts of reviews are typically seen as a negative for companies advertising their legal services.
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Pharma giant: In retrospect, we probably should not have agreed to pay the president’s “fixer” $1.2 million for dubious consulting work
Novartis AG “made a mistake” in striking a deal with Michael Cohen through his shell company, Essential Consultants, for guidance “as to how the Trump administration might approach certain U.S. healthcare-policy matters,” the firm’s C.E.O. toldemployees an e-mail today. “As a consequence, [we] are being criticized by a world that expects more from us.” Vasant Narasimhan did not say if the mistake specifically was agreeing to pay someone $1.2 million before holding a single meeting with him, or if the whole thing in general was one giant mistake, but presumably it’s the latter.
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Hit the above link to read the rest of “The Levin Report.”
You heard it months ago at “Courtside.” I said that Stormy D was smarter, more credible, more decent, and probably a better overall self-promoter than “Don the Con” and predicted that her lawyers would run circles around the 21st Century version of “The Three Stooges” hired by him.
To date, nothing to show I was wrong. Actually, I think I underestimated the incompetence of the Trump Legal Team. But, when everything the client says is a lie, and he can’t keep them straight, it’s hard for those around him to figure out which lies are part of the “party line” and which are . . . well, just plain old lies.
President Trump berated Homeland Security Secretary Kirstjen Nielsen in a dispiriting Cabinet meeting on immigration Wednesday, according to three administration officials,but her colleagues denied reports that she has threatened to quit.
Trump lashed out at his Cabinet, and Nielsen in particular, when told that the number of people arrested for illegally crossing the Mexico border topped 50,000 for the second consecutive month. The blowup lasted more than 30 minutes, according to a person with knowledge of what transpired, as Trump’s face reddened and he raised his voice, saying Nielsen needed to “close down” the border.
“Why don’t you have solutions? How is this still happening?” he said, adding later, “We need to shut it down. We’re closed.”
Administration officials spoke on the condition of anonymity to provide a candid account of the private meeting.
Trump’s tirade went on so long that many present began fidgeting in their seats and flashing grimaces, White House aides said. Eventually, the topic moved on to health care, bringing relief to many in the room.
Trump’s outburst at Nielsen was first reported Thursday by the New York Times.
The president’s eruption was witnessed by Cabinet members plus a number of senior White House officials — including counselor Kellyanne Conway, advisers Jared Kushner and Ivanka Trump, press secretary Sarah Huckabee Sanders, immigration adviser Stephen Miller and chief economic adviser Larry Kudlow.
Nielsen battled back, one person said, telling Trump that laws limit some of what she could do to block the flow of undocumented immigrants. Attorney General Jeff Sessions defended her, saying the administration was looking for new ways to deter illegal crossings.
Mostly, though, Nielsen struggled to get a word in, said one senior official.
The New York Times and Politico reported that Nielsen, who began the job in December, drafted a resignation letter. In a statement Thursday, a spokesman for the agency said that was false. Two senior White House officials described Nielsen as upset after the meeting, but said they were unaware of such a letter or threats to resign.
One White House official said Nielsen was in the building again Thursday. Hogan Gidley, a White House spokesman, did not respond to emails and phone calls seeking comment.
One person close to Nielsen said she is unlikely to resign. “She feels like she’s doing the best she can and doing a good job on immigration, but she also has to follow the law,” this person said. “It’s frustrating to have your boss unhappy about that.”
Trump has never viewed Nielsen favorably, and complains to colleagues that she is “not tough enough,” according to a senior White House official. He reminds staff that she was a “George W. Bush person” because of her previous tenure as a White House Homeland Security adviser.
In recent weeks, Nielsen has announced measures aimed at deterring illegal migration, including criminal prosecutions for parents who cross the border illegally with their children. Families are typically broken up in those circumstances, as federal immigration agents send children to government shelters while their mothers and fathers remain in custody awaiting court dates.
Trump has asked for frequent updates about the number of people attempting to cross the border illegally and has grown increasingly irritated at the recent trends.
A caravan of Central American migrants traveling through Mexico seized the president’s attention this spring, and in the weeks that followed he frequently asked Homeland Security for updates, administration officials said.
Illegal crossings plunged in the early phase of Trump’s presidency, but have since returned to levels consistent with the last several years of the Obama administration. Arrests along the border with Mexico typically rise during springtime, when migrants seeking jobs on U.S. farms and ranches return for the summer growing season.
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Spinelessness usually isn’t the best policy. Ask “Speaker Paul” how it worked out for him. Cabinet Members are only along for the short ride in any event; why not “do the right thing,” speak “truth to power,” and let the chips fall where they may? Just ask the ghost of Elliott Richardson who “Just said no” to Nixon’s lawless demand to fire the Special Prosecutor!
Immigration and border control are well within normal levels — actually the border is under somewhat better control. Instead of just noting that and moving on to more important issues, Trump unwisely claimed “miraculous powers” of deterrence stemming from his bombastic, anti-immigrant, racist statements last year. Most experts said that was stupid. Now that it has, in fact, proved to be stupid, Trump, as usual, needs to blame someone else. And, the lightweight sycophant Nielsen is the perfect “punching bag” for “Don the Con.”
The story of “The Good Samaritan” reimagined with “Don the Con:” He would have head stomped the helpless victim to death and left the body in the middle of the dusty road as a deterrent.
It is hard to imagine a more stressful situation for a young child than to be forcibly taken from his or her parents and detained with strangers. Sometimes this unfortunate outcome is necessary when children are the victims of parental violence or severe neglect. But in the case of current U.S. policy as articulated by the attorney general, the “abuser” is the federal government.
Forced separation of children and their parents is “child abuse by government.” And in this case, knowing what we now know about the consequences of severe stress in children, it is no stretch to assert that these new federal policies are not just cruel but also can have lifelong consequences for their child victims.
If Melania Trump meant what she said about children, she might want to organize a heart-to-heart meeting with the attorney general — and with her husband. Maybe the first lady could advocate for policies that reflect the spirit of her new agenda and a commitment to protect vulnerable families seeking safety and opportunity in the United States.
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Read the complete, very disturbing, article at the link. What kind of country with what kind of values puts a child abuser in charge of its legal system?Under Trump & Sessions, America has gone from a defender to an abuser of human rights. Sessions is a refutation of human decency every day that he is allowed to remain in the office for which he was so spectacularly unqualifiedin the first place.
Senator Liz Warren was right. Remember McConnell and the other smug Republicans who put this horrible individual in place to damage our youth and our reputation as a nation of laws, decency, and human compassion.
Donald Trump, with his feral cunning, knew. The oleaginous Mike Pence, with his talent for toadyism and appetite for obsequiousness, could, Trump knew, become America’s most repulsive public figure. And Pence, who has reached this pinnacle by dethroning his benefactor, is augmenting the public stock of useful knowledge. Because his is the authentic voice of today’s lickspittle Republican Party, he clarifies this year’s elections: Vote Republican to ratify groveling as governing.
Last June, a Trump Cabinet meeting featured testimonials offered to Dear Leader by his forelock-tugging colleagues. His chief of staff, Reince Priebus, caught the spirit of the worship service by thanking Trump for the “blessing” of being allowed to serve him. The hosannas poured forth from around the table, unredeemed by even a scintilla of insincerity. Priebus was soon deprived of his blessing, as was Tom Price. Before Price’s ecstasy of public service was truncated because of his incontinent enthusiasm for charter flights, he was the secretary of health and human services who at the Cabinet meeting said, “I can’t thank you enough for the privileges you’ve given me.” The vice president chimed in but saved his best riff for a December Cabinet meeting when, as The Post’s Aaron Blake calculated, Pence praised Trump once every 12 seconds for three minutes: “I’m deeply humbled. . . . ” Judging by the number of times Pence announces himself “humbled,” he might seem proud of his humility, but that is impossible because he is conspicuously devout and pride is a sin.
Between those two Cabinet meetings, Pence and his retinue flew to Indiana for the purpose of walking out of an Indianapolis Colts football game, thereby demonstrating that football players kneeling during the national anthem are intolerable to someone of Pence’s refined sense of right and wrong. Which brings us to his Arizona salute last week to Joe Arpaio, who was sheriff of Maricopa County until in 2016 voters wearied of his act.
Noting that Arpaio was in his Tempe audience, Pence, oozing unctuousness from every pore, called Arpaio “another favorite,” professed himself “honored” by Arpaio’s presence, and praisedhim as “a tireless champion of . . . the rule of law.” Arpaio, a grandstanding, camera-chasing bully and darling of the thuggish right, is also a criminal, convicted of contempt of court for ignoring a federal judge’s order to desist from certain illegal law enforcement practices. Pence’s performance occurred eight miles from the home of Sen. John McCain, who could teach Pence — or perhaps not — something about honor.
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Read the full op-ed at the link.
Yup! Courtside readers please remember that I beat Ol’ Georgie to the punch on this one. https://wp.me/p8eeJm-2vv
Usually, it’s better to just deal with the “real one,” rather than the one who has his nose wedged 12 inches up the real one.
Interesting: “Mikey the Immoral Sycophant” is Trump’s best insurance policy. And Jeff “Gonzo Apocalypto” Sessions is all that stands between Mikey and the “Most Disgusting ‘Whatever’ In Washington” Award!
And yet, it would be a mistake to suggest that Trump’s innovations have been purely stylistic, that he’s merely stamped his garish branding on the GOP’s classic product. Beyond the unprecedented illiberalism of the president’s rhetoric, his approach to governance has been substantively distinctive enough to warrant its own title. Trumpism is real.
True, the president hasn’t converted his party to the populist paleoconservatism he preached on the campaign trail. But he hasimplemented an immigration policy that serves white nationalist aims to a degree without modern precedent; elevated corruption into a philosophy of government; and prioritized spectacle over substance in his approach to foreign affairs to the point that America’s geopolitical strategy is now less neoconservative or isolationist or realist than it is nihilistic.
Taken together, these innovations amount to a novel variation on the conservatism Trump inherited — one that truly came into its own this past week. To see why this is the case, consider three developments from the past five days:
(1) The White House stripped legal status from 57,000 Honduran immigrants — who had been residing in the United States for decades — over the fervent objections of the State Department.
American immigration policy has long been cruel, and shaped by nativist fears. Donald Trump’s approach to policing undocumented immigration is less distinct from Barack Obama’s than many of the latter’s admirers would like to believe.
Nevertheless, the current administration’s overall immigration agenda is markedly different from those of its predecessors. Racist cruelty is not merely a feature of Trumpist immigration policy, but its first principle: The White House’s overriding goal is to inflict terror and suffering on America’s nonwhite noncitizens, as a means of combating “the ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty” — as former White House national security adviser Michael Anton once described America’s status quo immigration regime. (The president gave less eloquent expression to this same worldview, when he insisted that America did need not any more immigrants from “shithole countries.”)
This reality is best illustrated by Trump’s treatment of immigrants with temporary protected status (TPS). Established by Congress in 1990, TPS allows migrants whose home countries have been destabilized by natural disasters or civil strife to live and work in the U.S. legally, on a temporary basis. In practice, it has provided hundreds of thousands of immigrants from the developing world with de facto permanent residency in the U.S. Over the past two decades, various earthquakes and hurricanes led the United States to give large numbers of Salvadorans, Haitians, and Hondurans TPS; then, the resiliently adverse political and economic conditions in those countries led our government to allow those migrants to keep their protected status, indefinitely.
Many of these immigrants have now lived the majority of their adult lives in the United States. Some have started families here — TPS recipients are the fathers and mothers of an estimated 273,000 U.S.-born children, all of whom are entitled to American citizenship. In a different political era, Congress might have passed legislation providing this population with permanent legal status by now. But with comprehensive immigration reform paralyzed on Capitol Hill, previous administrations — Democratic and Republican — have simply allowed TPS recipients to renew their protected status every 18 months. After all, what good would be served by deporting hardworking, longtime U.S. residents, who are raising American citizens, back to countries plagued by poverty and violence?
The Trump White House refuses to answer that question.
Instead, it has moved to deport 300,000 Central American and Haitian TPS recipients without providing any justification beyond a transparently fraudulent appeal to legal necessity: Homeland Security Secretary Kirstjen Nielsen has insisted that her hands are tied — the administration is legally obligated to withdraw these immigrants’ protections once the conditions that prompted them subside. Honduras has recovered from Hurricane Mitch; “temporary” means temporary. If Congress wishes to give these people permanent status, it can do so.
But this narrative is patently false: U.S. law requires the Executive branch to consider whether the TPS recipients’ home countries are stable enough to accept a large number of deportees before it terminates their protected status. And as the Washington Postrevealed this week, career officials in the departments of State and Homeland Security concluded that those countries weren’t. In fact, U.S. diplomats warned the White House that deporting TPS recipients en masse was likely to produce a “bonanza for smuggling networks and gangs,” as many of those longtime U.S. residents would seek extralegal means of returning to this country.
The administration ignored this advice. When Acting Homeland Security Secretary Elaine Duke extended protections for Hondurans last fall, John Kelly called her from Asia “to convey his frustration,” while Stephen Miller hectored other DHS staff. Duke resigned in February; last Friday, the administration moved to expel the 57,000 Honduran recipients of TPS, despite the fact that their home country is suffering from an epidemic of gang violence so severe, many of its citizens joined the caravan that marched from Central America to the U.S. border just last month.
Between the 300,000 immigrants stripped of TPS and the 700,000 Dreamers denied DACA, the Trump administration has attempted to revoke the legal status of roughly 1 million longtime U.S. residents; all while offering no explanation for its actions beyond the bogus claim that they were legally required.
The reason that the White House has neglected to disclose the actual rationale behind these policies is simple: Its true motivation is too incendiary to formally acknowledge.
You cannot expel immigrants who have been thriving in the U.S. for two decades, out of concern that they might prove unable to assimilate. You can’t deport a population that has a higher labor-force participation rate than native-born Americans on the grounds that it will be a burden on the U.S. economy. You cannot claim that your immigration policy is motivated by concern for public safety, when you move to deport law-abiding longtime residents — even though your diplomats warn that doing so will benefit criminal gangs and smugglers. And you certainly can’t claim that your hard-line immigration agenda puts the interests of all American citizens first, when you’re trying to separate hundreds of thousands of American citizens from their mothers and fathers. None of the polite restrictionist arguments apply.
But an impolite argument does: If the Trump administration’s goal is to combat the demographic threat posed by America’s rising population of “Third World foreigners,” then its TPS policy makes perfect sense. Trump can’t stem the tide of new, nonwhite immigrants without Congress’s help. But he can expel those with only a temporary claim to legal residence. And so that is what he has done. Which is to say: A mild form of ethnic cleansing is now a cornerstone of American immigration policy.
Read the rest of Eric’s very perceptive analysis at the above link.
Yup. It’s all about racism! That’s what Trump, Sessions, Miller, Cotton, Perdue, Goodlatte, & Co. have always been about. Essentially turning America back to the pre-1965 days of “national origins” immigration.
And, I’m pleased that someone OTM (“other than me”) finally has pinpointed the willfully false narrative behind the bogus claim that termination of TPS was “legally required.” Complete BS:
But this narrative is patently false: U.S. law requires the Executive branch to consider whether the TPS recipients’ home countries are stable enough to accept a large number of deportees before it terminates their protected status. And as the Washington Post revealed this week, career officials in the departments of State and Homeland Security concluded that those countries weren’t. In fact, U.S. diplomats warned the White House that deporting TPS recipients en masse was likely to produce a “bonanza for smuggling networks and gangs,” as many of those longtime U.S. residents would seek extralegal means of returning to this country.
Trump/Sessions racist immigration policies hurt the “good guys,” help the “bad guys,” and insure that American immigration “policies” will be a mess for decades to come. As Eric states, “A mild form of ethnic cleansing is now a cornerstone of American immigration policy.”
The only thing I’d dispute is the term “mild.” This is just the beginning. Trump, Sessions, & Co. have non-White populations of Americans, primarily Hispanics but also including African-Americans, Asian Americans, Arab Americans, etc., squarely within their sights.
Yes, there’s strength in diversity and in immigration! I’ve seen it in my courtroom and in my life. Don’t let Trump, Sessions, and their racist cronies destroy the greatness of America!
“Normalizing” Donald Trump is morally wrong and politically suicidal. Look what happened in the 1930s when the Western Powers tried to “normalize” Hitler and the Nazis. There’s nothing “normal” about White Nationalism and White Supremacy!
Join the New Due Process Army. Fight to Keep America Great!
The Executive Office for Immigration Review, under the direction of the Department of Justice, announced last year that it had reopened the Collective Bargaining Agreement with the National Association of Immigration Judges (NAIJ) to include case completion quotas in the performance evaluations of Immigration Judges. On March 30, 2018, James McHenry, the Director of the EOIR, formally announced these metrics, which require IJs to complete at least 700 cases per year, have a remand rate of less than fifteen percent, and meet half of the additional benchmarks listed in the evaluation plan, which can be found here. As pointed out by the Association of the Bar of the City of New York, “this quota translates into each judge hearing testimony and rendering decisions almost three cases per day, five days per week, 52 weeks per year.” According to several retired IJs and Former Board of Immigration Appeals (BIA) Members, such quotas raise serious due process concerns and will result in a system that is less focused on justice and appearing “more like an assembly line.”
There are a number of issues with the EOIR case completion quotas. First, these quotas may force IJs to breach their ethical obligations. Specifically, the new completion quotas are tied to the financial incentives of IJs, where the performance evaluations affect IJs’ job security and eligibility for raises. IJs are not given life appointments and can be easily removed from the bench by the Attorney General if he finds them to not be meeting these performance thresholds. Thus, IJs may be encouraged to render hasty decisions in order to satisfy these case completion quotas and receive a good review (and thus a raise) instead of making decisions based on what is proper for the cases in front of them. Having such a financial incentive in the completion of a case arguably forces an IJ to violate 5 C.F.R. §§ 2635.401 to 2635.403,[i] which prohibits IJs from participating in proceedings where he or she has a financial interest. Additionally, IJs must be impartial in their decision-making under 5 C.F.R. § 2635.101(b)(8). It is hard for an IJ to remain impartial when pressured with impossible case completion standards especially when a case is meritorious but an IJ may not grant a continuance for legitimate reasons.
The case completion quotas also violate 8 C.F.R. § 1003.10(b), which provides: “In deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgement and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” For example, an attorney may have been only recently retained by an asylum-seeker, and may request a continuance in order to gather and assemble evidence that is vital for the asylum-seeker’s claim. Under ordinary circumstances, an IJ would likely grant such a continuance as it would be considered proper under INA § 240(b)(4)(B) which affords a “reasonable opportunity…to present evidence” on one’s behalf. However, under the quota system, an IJ may feel pressure to deny the motion for continuance and may ultimately deny the asylum claim because the asylum-seeker was not afforded sufficient time to present their case. Such an outcome clearly violates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B) where the IJ is stripped of their independent decision-making authority where they feel pressured to quickly close out a case despite compelling reasons to grant a continuance, and where the asylum-seeker is not afforded a reasonable opportunity to be heard.
Another example is an individual placed in removal proceedings who is the intending beneficiary of a pending I-130 with USCIS. Typically, USCIS takes several months to adjudicate an I-130, and thus, attorneys for respondents file motions for continuance with the IJ until the USCIS has rendered a decision which will determine the respondent’s eligibility for relief from removal. Under the new case quota system, IJs will be less inclined to grant such continuances. This hypothetical similarly implicates 8 C.F.R. § 1003.10(b) and INA § 240(b)(4)(B), as described above. Moreover, the IJ’s denial of the continuance here would violate Matter of Hashmi, 24 I&N Dec. 785, 793-94 (BIA 2009) where the Board held that compliance with a IJ’s case completion goals “is not a proper factor in deciding a continuance request” where there is an meritorious pending I-130. We’ve previously blogged about AG Sessions’ stripping of judicial independence through his self-referral of Matter of L-A-B-R- et al, 27 I&N Dec. 245 (AG 2018), which can be found here.
The case completion quotas will also lead to an unprecedented number of BIA and federal court appeals. This would needlessly increase the BIA’s backlog and indeed affect the dockets of the federal court systems, resulting in the tremendous waste of taxpayer’s dollars where a proper decision could have been rendered at the IJ level. In addition, the number of remanded cases may exceed fifteen percent, and thus, the IJ would again fail to meet the performance metrics in their performance evaluation.
For many years, the NAIJ has advocated for the creation of an Article I Immigration Court that is independent of the political whims of the Department of Justice. Under the current Administration, and in light of the newly imposed DOJ/EOIR performance quota metrics, these calls have never been more relevant. The Immigration Court system should not be used as a political tool of the executive branch to effectuate anti-immigrant policies. Rather, it should be an independent system that is committed to the fair adjudication and implementation of our immigration laws. The case completion quotas will undoubtedly undermine the integrity of our immigration system and should be vigorously challenged by IJs and practitioners.
[i] The author acknowledges that 5 CFR § 2635.402 directly implicates 18 U.S.C. 208(a), a criminal statute. This author suggests that the EOIR case completion quotas may jeopardize an IJ’s ethical obligations where their financial interests are directly and predictably impacted by blind adherence to such arbitrary quotas. Criminal liability for these actions, however, goes beyond the scope of this article.
ATTORNEY GENERAL Jeff Sessions is indifferent about whether undocumented immigrants crossing into the United States are simply seeking a better life for themselves and their families or whether they are fleeing domestic abuse, drug cartels, extortion rackets or political violence. It’s all the same to Mr. Sessions, who said Monday that all those who come into the country illegally would be prosecuted — and separated from their children in the bargain. Thus has the top law enforcement official in the United States enshrined callousness as administration policy.
Will babies be separated from nursing mothers? Will toddlers be housed in institutions far from parents? How many children will be traumatized by being carted away from their parents for weeks or months — or longer? The attorney general doesn’t say or, apparently, care.
Mr. Sessions’s policy of separating parents and children is intentionally and unapologetically punitive. There was no talk from him of developing additional detention centers that could accommodate families while parents await prosecution for the misdemeanor of illegal entry. There was no public recognition of the United States’ historical role as a beacon for refugees, nor its obligation in law and international treaty to accept migrants seeking asylum from danger in their native countries. There were no estimates of how many children will be removed from their parents, for how long, and with what long-term damage to their emotional and psychological welfare.
Instead, the attorney general offered indifference. Proclaiming a new policy of “zero tolerance,” he rebranded the United States as a crueler place than the countries from which people are fleeing. And never mind that, in many cases, parents are seeking refuge in this country in order to escape violence and persecution — and to protect their children.
The impetus for the new stance, of course, is President Trump, who has made clear that his crusade against all immigrants, with or without documents, knows no limits. Having washed his hands of the “dreamers,” mainly teenagers and 20-somethings raised and educated in this country after being brought here by their parents, Mr. Trump need not travel a great moral distance to upend the lives of brand-new migrant families by removing children from their parents.
The administration’s stated justification is a surge in migrants in recent months. The number of apprehensions of those coming into the country without papers, especially from Central America, has spiked from a year ago. However, the overall flow of migrants over the southwest border is near a four-decade low.
In other words, Mr. Sessions’s talk of a “massive influx” of undocumented immigrants is a falsehood. Against his incendiary vow that the administration will not allow the United States to be “invaded” and “stampeded ” is the plain truth that the southwest border is more secure, and less frequently breached, than at any time since the Nixon administration.
Yet Mr. Trump and Mr. Sessions propose a breathtaking innovation: wrenching every small child away, as a matter of policy, from his or her family. They have now matched their demagoguery on immigration with malice.
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YUP! In a highly competitive race, Gonzo Apocalypto gets my vote for “Worst Government Official in America!” Willful ignorance, arrogance, incompetence, cruelty, racism, maliciousness, dishonesty, fake religion, and lawlessness all put together in one toxic package.
Here’s how lawmakers could force a DACA vote in the House
By Tal Kopan, CNN
A group of GOP moderates’ move to try force a DACA debate on the floor still has several hurdles to clear before they potentially reach any votes.
As of Thursday morning, 17 Republicans signed onto the petition. If all 193 Democrats join them, which is a possibility but not a given, they would still need eight more Republicans in order to hit 218 — a majority of the House.
One of the major driving forces of the effort, California Republican Rep. Jeff Denham, told CNN’s Ashley Killough Wednesday that he is confident in the effort and has asked Democrats to hold off on signing for now to avoid it looking like a Democratic bill.
The key questions:
Can it get enough votes?
It’s quite possible. There are a number of moderates who want to see action on this and conservatives could be wooed as a way to bring the hardline bill from Rep. Bob Goodlatte, R-Virginia, and others to the floor, which GOP leadership has been sitting on because it lacks the votes.
One source told CNN their sense is leadership is concerned this petition could very well succeed.
Then what?
According to the authors of this effort, a discharged bill can be considered on the second and fourth Mondays that the House is in session, and signatures must be completed seven legislative days in advance. Based on the calendar, the earliest this could likely come together appears to be June.
House Speaker Paul Ryan could also opt to call it for floor time on his own.
Rather a surprising development in my view. I suppose it’s a helpful reminder that not all Republicans are like Sessions, Tom Cotton, Steven Miller, Steve King, Bob Goodlatte, Mike Pence, and Donald Trump. Except, how do decent human beings remain in a party that accepts, normalizes, and too often enables the likes of the foregoing? Seems like when “push comes to shove” Republicans usually line up behind the “worst of the worst.”
As a young Justice Department lawyer, I was present at the creation of the Refugee Act of 1980, which together with its amendments and implementing regulations constitute the regime of asylum and refugee protection in the United States. During the Carter administration, I had a hand in the final drafting of the 1980 asylum law. As a U.S. immigration judge in Los Angeles from 1990 through 2007, I heard and decided thousands of cases in which citizens and stateless persons from foreign countries sought asylum in our nation. As a law professor both in California and in England, I have lectured on asylum and refugee law.
The asylum law was intended as a humanitarian measure to defend the defenseless by offering them the possibility of a new and secure life in the United States. But that will no longer be the case if Attorney General Jeff Sessions has his way. The Refugee Act of 1980 grants asylum status in the United States for any foreign-born individual who demonstrates past persecution or a well-founded fear of future persecution for reasons of “race, religion, nationality” as well as “membership in a particular social group” and “political opinion.”
Additionally, under precedent set over the course of decades by federal courts across the country, the persecution that triggers asylum protection must be committed or attempted by a foreign government, or by forces that the government is unable or unwilling to control. That the persecution may be official or private recognizes the fact that in many countries, civil society and the rule of law are nowhere to be found. In their place, governments often unofficially depend on ad hoc private parties and organizations to aid in the torture, persecution and murder of those deemed “enemies of the state.” The use of nongovernmental persecutors provides plausible deniability to regimes that deny complicity in the mistreatment of those they seek to eliminate.
Now the attorney general is attempting to undermine if not eliminate the “unable or unwilling” standard applied in asylum cases for decades. In 2016, in a case entitled “Matter of A-B-,” the Board of Immigration Appeals, the administrative court that reviews decisions of immigration judges, ruled that based on prevailing precedent, an asylum applicant seeking refugee status based on her membership in a particular social group” that led to her gross domestic abuse, had demonstrated that the government of her native El Salvador was unwilling or unable to protect her from her abusive ex-husband. The board remanded the case to the trial judge so that he might apply the correct “unwilling or unable” standard.
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Go on over to The Hill to read Judge Einhorn’s complete article!
Judge Bruce J. Einhorn has spent his career advancing the true rule of law and seeking to rectify the wrongs of the past: first as a prosecutor in the Office of Special Investigations at the U.S. DOJ bringing Nazi war criminals to justice (where I first came in contact with him); then as a U.S. Immigration Judge; and finally as a law professor. (Yes, folks, there was a time long ago when the USDOJ actually was on the side of seeking and guaranteeing justice for the persecuted, rather than engaging in child abuse, spreading false scenarios about immigrants and crime, promoting xenophobic myths about refugees, building the “New American Gulag,” and mis-using the US Immigration Court system as a tool of DHS enforcement to discourage refugees from seeking protection under our laws and international treaties to which we are party.)
By contrast, Jeff Sessions has spent his entire legal & “public service” career on the wrong side of history: trying to “turn back the clock” to the era of Jim Crow; promoting intolerance, unequal treatment, and hate directed at African-Americans, Hispanics, immigrants, and the LGBTQ community; perverting the rule of law and the Constitutional guarantee of individual rights and fairness for everyone in America; and denying the massive contributions to the success of the United States made by non-White, non-Christian, and non-U.S. citizen individuals.
Jeff Sessions is a much bigger threat to the security, welfare, and future of the United States than are desperate women and children from the Northern Triangle seeking to save their lives by exercising their lawful rights under U.S. and international law to apply for asylum.
A group of congressional Democrats on Tuesday asked a Justice Department watchdog to investigate allegations that the department improperly considered job candidates’ political views during the hiring process.
In a letter to Justice Department Inspector General Michael Horowitz, eight Democratic lawmakers highlighted whistleblower accounts that prospective agency employees had job offers delayed or rescinded with “explanations that suggest a pretext for improper political motives.” The move follows a similar letter sent to Attorney General Jeff Sessions last month, which lawmakers said went unanswered.
“Over the past several weeks, more whistleblowers have come forward with information that corroborates the allegations detailed in that letter [to Sessions],” the lawmakers wrote. “[Based] on these whistleblower accounts, the department may be improperly withholding or rescinding offers for these positions based on the perception that candidates hold political or ideological views that do not align with those of the Trump administration.”
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The Democrats specifically noted complaints regarding hiring at the Executive Office for Immigration Review, an agency that oversees immigration judges, and the Board of Immigration Appeals, and suggested that testimony last month from EOIR Director James McHenry denying knowledge of the consideration of ideology in the hiring process was erroneous.
“The information provided by the whistleblowers indicates that this testimony may be inaccurate: in at least some cases, inferences about an applicant’s ideological or political affiliation could be gleaned from application materials, even if such information was not required,” Democrats wrote. “The department also may be attempting to improperly screen for political or ideological preferences by changing the qualification criteria for immigration judge positions.”
The letter was signed by House Oversight and Government Reform Committee Ranking Member Elijah Cummings, D-Md.; House Judiciary Committee Ranking Member Jerrold Nadler, D-N.Y.; Senate Judiciary Committee Ranking Member Dianne Feinstein, D-Calif.; Sen. Dick Durbin, D-Ill.; and Reps. Zoe Lofgren, D-Calif., Lloyd Doggett, D-Texas, Joaquin Castro, D-Texas, and Don Beyer, D-Va.
The Justice Department declined to comment on the letter.
The Justice Department, both by law and agency policy, is barred from considering a job candidate’s political views during the hiring process. But at times, the department has struggled with these rules, particularly in the Civil Rights Division and EOIR.
In 2008, a Justice Department Inspector General investigationfound that then-Attorney General Alberto Gonzalez’s aides “considered political or ideological affiliations” during immigration judge hiring. And in 2009, the OIG concluded that former acting Civil Rights Division head Bradley Schlozman similarly incorporated ideology into his hiring decisions. Last year, more than 20 progressive and public interest advocacy groups wrote to Sessions urging him not to allow candidates’ politics to influence hiring decisions in the Civil Rights Division.
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Given Sessions’s constant stream of untruths, fabrications, distorted statistics, prejudiced construction of the laws, and racist anti-immigrant alarmist fantasies, it would be little short of incredible if he were not engaging in unlawful hiring practices for U.S. Immigration Judge positions.
It’s outrageous that these important positions should be under the complete control of a political official who is leading the charge for maximum immigration enforcement. What kind of “court system” allows the chief prosecutor to 1) choose the judges, and 2) change the law and overrule judicial results he doesn’t like. It’s something truly worthy of a Kafka novel.
Jeff Sessions has no concept of “fairness,” impartiality, and true due process in the immigration context. Nor is he in any way, shape, or form qualified to be in charge of any judicial system, let alone one relating to immigration — a subject on which his overt bias, improper meddling in the supposedly impartial hearing process, and intention to misuse it as part of the Administrations’s enforcement program is crystal clear.
WASHINGTON (The Borowitz Report)—Calling it “maybe the worst deal ever,” Donald J. Trump said on Wednesday that he is considering pulling the United States out of the United States Constitution.
“I’ve seen a lot of bad deals in my life, but this Constitution is a total mess,” he said. “We need to tear it up and start over.”
Trump was scathing in his remarks about the two-hundred-and-twenty-nine-year-old document, singling out for special scorn its insistence on three branches of government. “The branches thing is maybe the worst part of this deal,” he said. “The first thing we do when we pull out of the Constitution is get rid of two of those branches.”
He also called the First Amendment “something that really has to go.”
“No one in his right mind would put something like that in a Constitution,” he said. “Russia doesn’t have it. North Korea doesn’t have it. All the best countries don’t have it.”
He stopped short of accusing his predecessor, Barack Obama, of writing the United States Constitution, but said, “He’s working hard behind the scenes trying to save it, because he knows that the Constitution is very, very bad for me.”
Vowing to replace the Constitution with “a new, much, much better Constitution,” he acknowledged that there might be some elements of the original document worth salvaging. “We’re going to keep the Second Amendment,” he said, “and definitely the Fifth.”
Republicans seek enough signatures to force DACA vote in House
By Tal Kopan, CNN
A group of Republicans are making good on their threat to attempt to force an immigration floor vote in the House — potentially paving the way for a showdown among proposals to save the Deferred Action for Childhood Arrivals program.
The lawmakers on Tuesday signed what’s known as a discharge petition — a procedural maneuver that can bring legislation to the House floor if it is signed by a majority of House members regardless of whether it has moved through committee, as is traditionally the case for most legislation. If the petition were to pick up enough supporters, it would set up a floor debate on four different immigration measures as early as June.
The move is unusual for members of the majority party, who are effectively going around House Speaker Paul Ryan to set up a vote on legislation that GOP leadership has refused to call to the floor for a vote. Still, the members insist they are making an effort to be deferential to leadership, by leaving one bill open to the speaker’s choosing.
The effort is being spearheaded by three moderate Republicans who have long been vocal about trying to save DACA, a program that protected young undocumented immigrants who came to the US as children — Reps. Will Hurd of Texas, Jeff Denham of California, and Carlos Curbelo of Florida. Curbelo officially introduced the petition Wednesday morning.
In an exclusive interview with CNN, the three moderates said the goal was to have a long overdue immigration debate without a predetermined outcome.
“This institution should be driven by courage, not by cowardice, and the goal should not be to suppress members from pursuing their legislative goals, it should be to empower each member, and that’s what we’re trying to do,” Curbelo said. “The goal is to empower each member of the House, including the speaker, to advance the solution that each member believes is the best one for this challenge and to try to gain supporters for that solution. So this is not in defiance of anyone.”
Looks like “Speaker Paul” — his real work of robbing the poor and middle classes to benefit the rich done — is losing his always tenuous grip on the House GOP. And, screwing around with unnecessary issues like trying to fire the House Chaplain didn’t help.
FOIA results: evidence of Immigration Judge V. Stuart Couch’s shocking prejudgment of all domestic violence asylum claims
by Bryan Johnson on April 20, 2018
At the bottom, readers will find the all of the decisions of Immigration Judge V. Stuart Couch that resulted in BIA remands for the Fiscal Year of 2017.
Time and time again, IJ Couch’s decisions denying victims of domestic violence asylum contain carbon copy language.
Thus, it is clear that IJ Couch’s has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum. The following is one of his favorite passages to copy and paste.
The respondent’s evidence reflects that [the] physical and verbal abuse of her was related to his violent and jealous nature…The evidence in this case is more consistent with acts of general violence and therefore does not constitute evidence of persecution based on a statutorily protected ground.
Immediately below, I have excerpted key parts of the BIA & IJ Couch decisions. A clear pattern has emerged: IJ Couch does not grant asylum to women who are victims of domestic violence, despite clear instructions to the contrary from the BIA.
Pages 31-48:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, Guatemala has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Guatemalan society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison.”
BIA’s holding:
The respondent’s testimony reflects that people in the community knew them as a couple and
made comments reflecting their notions that the respondent could not escape the relationship (Tr. 232 at 66).
The respondent also testified that her parents did not help her leave the
relationship because of ingrained views that women are the property of men (Tr. at 33-35).
Under these circumstances, we conclude under the same reasoning as Matter of A-R-C-G-,
supra, that the proffered social group here is “immutable,” “particular” and “socially distinct.”
To the extent that the Immigration Judge determined that the respondent is not a member of this
particular social group, that determination is clearly erroneous. See Matter of A-R-C-G-, supra,
at 3 91 (the question whether a person is a member of a particular social group is a finding of fact
that we review for clear error).”
Pages 65-80:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, El Salvador has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Salvadoran society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
El Salvador, and thereby renders her past harm indistinct by comparison.”
BIA decision:
Finally, the record does not support the Immigration Judge’s determination that the past harm
the respondent suffered is “consistent with acts of general violence” which undermines her claim
for asylum (l.J. at 10). Further, even assuming her former partner’s “criminal tendencies and
substance abuse” played a role in his conduct (/d.), the appropriate inquiry is whether the
asserted protected ground was or would be “at least one central reason” for the claimed or feared
harm. See section 208(b)(l)(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341, 349 (BIA
2010)
Pages 81-96:
Immigration Judge Decision:
The respondent testified that when was drunk, he would physically and
verbally abuse her. She further testified “he was fine” when he was not under the influence
of alcohol. Thus, ‘s abuse appears related to his own criminal tendencies and
substance abuse, rather than conclusive evidence he targeted the respondent on account of
her proposed particular social group. The evidence in this case is more consistent with acts of
general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground.
BIA decision:
Upon review of the record, we conclude that a remand is necessary for the Immigration
Judge to further assess whether the respondent established that she is a member of a cognizable
particular social group. The Immigration Judge found that the respondent’s case is factually
distinguishable from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because she was not in
a marital relationship with her former partner and did not seek assistance from authorities
(I.J. at 7-9). While relevant, the distinguishing factors identified do not preclude the respondent
from establishing that her proposed particular social group is cognizable under the Act, and we
find that further fact-finding regarding the respondent’s experiences in El Salvador is necessary
to determine whether she satisfied the elements required to establish a valid particular social
group. See Matter of A-R-C-G-, supra, at 393 (stating that “adjudicators must consider a
respondent’s own experiences, as well as more objective evidence, such as background country
information”).
Pages 102-120:
BIA decision:
We find clear error in the Immigration Judge’s determination that the respondent was not
abused by her former partner on account of her particular social group. See l.J. at 12; 8 C.F.R.
§ 1003.l (d)(3)(i); Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (a persecutor’s actual
motive is a matter of fact to be determined by the Immigration Judge and reviewed by this Board
for clear error). The respondent testified that her former partner told her that a woman is not
more intelligent than he is and that the respondent has no value, comments which indicate that he
harmed her because of her perceived lesser status in the relationship (Tr. at 46).
Immigration Judge Decision:
The respondent’s evidence reflects that [the] physical and verbal abuse of her
was related to his violent and jealous nature, sometimes accompanied by his use of alcohol.
Thus, ‘s abuse appears related to his own criminal tendencies or substance abuse,
rather than conclusive evidence he targeted the respondent on account of her proposed
particular social group. The evidence in this case is more consistent with acts of general
violence and therefore does not co nstitute evidence of persecution based on a statutorily
protected ground. Huaman-Cornelio v. BIA, 979 F.2d 9 at l 000; Ruiz v. US. Att’y Gen., 440
F.3d 1247, 1258 (11th Cir. 2006).
Pages 137-155
BIA decision:
We disagree with the Immigration Judge that the respondent’s proposed social group, consisting of Honduran women
who are viewed as property and whose domestic partners refuse to allow them to leave their
relationship lacks the requisite immutability, particularity, and social distinction (l.J. at 7-10).
See Matter of M-E-V-G-, 26 l&N Dec. 227, 236-43 (BIA 2014) (outlining factors to be
considered when discerning whether a social group is cognizable under the Act); Matter of
The respondent’s evidence reflects that ‘s physical and verbal abuse of her
was related to his violent and jealous nature, heavy use of drugs and alcohol, and association
with drug traffickers. Exhibit 3, tab C at 17-19. Thus, ‘s abuse appears related to his
own criminal tendencies or substance abuse, rather than conclusive evidence he targeted the
respondent on account of her proposed particular social group. The evidence in this case is
more consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds
that the respondent has not established targeted her due to her particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
Pages 157-173
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature. The respondent testified Mr. ‘
motivation to harm her was anger when she would ask him for money so she could buy food
for her family. She recalled the final argument that led to their separation occurred when the
respondent confronted Mr. regarding his affair with her sister-in-law. Thus, Mr. ‘
abuse of the respondent appears related to his own violent and criminal tendencies, rather than
conclusive evidence he targeted her on account of her membership in a particular social group.
The evidence in this case is more consistent with acts of general violence and therefore does
not constitute evidence of persecution based on a statutorily protected ground.
Consistent with its immutability and particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison. For these reasons, the
Court finds the respondent has not met her burden to show the requisite social distinction
necessary for membership in a particular social group.
BIA decision:
The Immigration Judge further concluded that the respondent did not meet the immutability,
particularity and social distinction requirements for a cognizable particular social group (I.J. at 9-
12). We have held that depending on the facts and evidence in an individual case, victims of
domestic violence can establish membership in a cognizable particular social group that forms the
basis of a claim for asylum or withholding of removal. Matter of A-R-C-G-, 26 I&N
Dec. 388 (BIA 2014).
Pages 228-243
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘s physical, verbal, and sexual
abuse of her was related to his violent and jealous nature. The respondent testified Mr.
‘s motivation to harm her was anger after she reported his abuse to government
authorities. Thus, Mr. ‘s abuse of the respondent appears related to his own
violent and criminal tendencies, rather than conclusive evidence he targeted her on account of
her membership in a particular social group. The evidence in this case is more consistent with
acts of general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at 1000; Quinteros-Mendoza
v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds that the respondent has not
established Mr. targeted her due to her membership in a particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
BIA decision:
There appears to be no dispute that the verbal, physical and sexual abuse suffered by the
respondent at the hands of her stepfather, which occurred several times per week over a period of
years, rises to the level of past persecution. See, e.g., Barahon v. Holder, 588 F.3d 228, 232,
(4th Cir. 2009) (observing that “[a] key difference between persecution and less-severe
mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents”).
However, the Immigration Judge rejected as invalid the respondent’s proposed particular social
group of”Mexican children who are perceived as property and lack effective familial protection,”
finding that it lacked the requisite immutability, particularity, and social distinction (I.J. at 7-9).
The question whether a group is a “particular social group” within the meaning of the Act is a
question of law that we review de novo. Matter of A-R-C-G-, supra, at 390. On review, we find
that the particular social group posited by the respondent, under the circumstances of this case, is
valid under the reasoning of our recent decisions clarifying the approach to particular social
groups. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N
Dec. 208 (BIA 2014).
Pages 264-283
Immigration Judge decision:
The respondent’s evidence reflects that her former spouse’s physical, sexual, verbal,
and psychological abuse of her was related to his violent and jealous nature, and frequent
intoxication from alcohol. The respondent testified that is an alcoholic whose
motivation to harm her stemmed from his anger, dislike for her, jealous nature, and infidelity
with other women. Exhibit 2, tab C at 12-13. Based upon the respondent’s testimony, it
appears the threats, assault and rape she suffered at the hands of was intended to
intimidate and threaten her to comply his own selfish and criminal demands for sex.
Thus, the abuse suffered by the respondent appears related to the violent and criminal
tendencies of her abusive former spouse, rather than conclusive evidence she was targeted on
account of her membership in a particular social group. The evidence in this case is more
consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court fmds
that the respondent has not established her former spouse targeted her due to her membership
in a particular social group, which is required to prove the requisite nexus for asylum relief.
INA§ 208(b)( l)(B)(i).
BIA decision:
We additionally conclude that the Immigration Judge’s finding that the respondent was able
to leave her ex-husband is clearly erroneous (l.J. at 10-11).
However, the record reflects that the respondent’s ex-husband continued to threaten and physically abuse the respondent after -their separation,
despite her move to a town over 2 hours away from him, and that he raped her in…2014, after their divorce.
Pages 315-334
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature, often fueled by his use of alcohol and
drugs. Exhibit 2, tab H at 1-2. Mr. ‘ motivation to harm her appears to be based upon his
own criminal tendencies and substance abuse, rather than conclusive evidence he targeted
her on account of her membership in a particular social group.
BIA decision:
We also note that even if the evidence and testimony support a finding that the
respondent’s husband has a “violent and jealous nature” (I.J. at 12), this is not clearly separate
from a motive to persecute his wife based on feelings of domination and control, the hallmarks
of domestic violence.
Pages 373-393
Immigration Judge decision:
The respondent’s evidence reflects that her husband’s physical, verbal, and
psychological abuse of her was related to his violent and jealous nature, at times affected by his
use of alcohol. The respondent testimony suggests her husband’s motivation to harm her was
his dislike for her and suspicion she was being unfaithful to him. His motivation also appears
related to the respondent’s desire to leave him because of his infidelity, and his demands for
custody of their son. Based upon the respondent’s testimony, it appears the threats, assaults
and psychological abuse she suffered at the hands of her husband was intended to intimidate
her to obtain some unclear result.
BIA decision:
We conclude, based on the particular facts presented on this record that the respondent
established that she was a member of the particular social group she articulated. We further
conclude that the Immigration Judge erred in concluding that this case is distinguishable from
Matter of A-R-C-G-, supra, based principally on the fact that the respondent was able to separate
and live apart from her husband after he moved out of their home in 2013 (l.J. at I 0-l l ).
The respondent’s ability to live apart from her husband in Honduras is not a distinguishing factor
from the social group rationale articulated in Matter of A-R-C-G-, supra, where the respondent
credibly testified that her husband refused to consent to a divorce and showed up unannounced
and uninvited at her home on several occasions, once touching her in a sexual manner and telling
her that he has a “right” to her as his wife. Additionally, the respondent testified that she was
unable to leave the relationship in Honduras for numerous cultural reasons, including her fear that
would take their son away from her and her belief that she was unable to obtain a divorce
because of ‘s ties to local government officials (l.J. at 3-4; Tr. at 51, 56, 64-73, 99, 105).
See Matter of A-R-C-G-, supra, at 393 (recognizing that “a married woman’s inability to leave the
relationship may be informed by societal expectations about gender and subordination, as well as
legal constraints regarding divorce and separation.”). Further, that domestic violence is prevalent
in Honduras does not mean that the respondent’s proposed particular social group lacks discrete
boundaries, as the Immigration Judge determined (l.J. at 11).
*************************************
EOIR has been known to pass off this type of judicial misconduct as “normal deviations” in judging. But, there is a difference between honest variances in judicial philosophies and approach, which are present to some extent in all diverse judicial systems and might produce differing results, and clearly biased and unfair judging. Judge Couch’s performance clearly fits within the latter.
To state the obvious:
All of these incidents were “specifically targeted.” Therefore, Judge Couch’s determination that they were part of “generalized violence” is clearly fiction.
Asylum applicants are not required to demonstrate “conclusive evidence” of anything. “Conclusive evidence” is not a legal standard in any part of asylum adjudication.
What should have happened:
Judge Couch should have been removed from each of these cases for bias;
Like U.S. Courts of Appeals, the BIA should have “outed” Judge Couch, by name, in published opinions to give both applicants and the Fourth Circuit Court of Appeals notice of his problematic adjudication of asylum cases.
If Judge Couch continued his biased and unfair judging he should have been 1) ordered by the BIA not to hear any asylum cases involving women from the Northern Triangle, and 2) told that if his performance in asylum cases did not improve, he would be referred to the EOIR disciplinary system for Immigration Judges based on actual bias against asylum applicants.
There is simply no room in a true Due Process system, particularly one where many respondents are unrepresented, for a biased, anti-asylum judge like Judge Couch. Is this “being the world’s best administrative tribunals guaranteeing fairness and Due Process for all?” No Way! Jeff Sessions, who often enunciates biased, anti-asylum positions, is part of the problem, not the solution! Due Process can’t be restored to the U.S. Immigration court system until Jeff Sessions and the USDOJ are removed from the process.
We need an independent judiciary capable of telling judges who perform like Judge Couch to correct their behavior immediately — in other words, “shape up or ship out.”
