Nolan writes:
. . . .
Sessions is trying to eliminate the need for asylum hearings on applications that are based on improper persecution claims. These meritless cases are contributing to an immigration court backlog crisis. If he is prevented from doing this by issuing precedent decisions to provide guidance on how asylum cases are supposed to be handled, the administration will resort to more extreme measures.
The United States does not have to grant any asylum applications. Asylum is discretionary, and the Supreme Court has held that the president can suspend the entry of aliens into the United States when he finds that their entry “would be detrimental to the interests of the United States.”
The court declined to decide whether “some form of inquiry into the persuasiveness of a president’s finding is appropriate.” It seems unlikely, however, that the court would reject a president’s finding that discretionary asylum grants should be suspended until the immigration court backlog crisis is brought under control because allowing the backlog to continue is detrimental to the interests of the United States.
This would not leave asylum seekers without a way to avoid persecution. Withholding of removal is available too and it is mandatory when eligibility has been established. The main difference in eligibility requirements is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that it is more likely than not that he will be persecuted.
But withholding does not entitle aliens to remain in the United States. It just prevents them from being deported to a country where they will be persecuted
. . . .
**********************************************
Read Nolan’s complete article at the link.
- Unlike Nolan, I believe that the ACLU has properly stated a case for jurisdiction under INA 242(e)(3)(A)(ii). Sessions’s decision in Matter of A-B- has the force and effect of a regulation. Moreover, the DHS implementing instructions give it the status of a “written policy” concerning credible fear and expedited removal. Here’s the complaint in Grace v. Sessions: https://www.aclu.org/legal-document/grace-v-sessions-complaint
- Contrary to what Nolan suggests in his article, a petition for review of A-B- is not an adequate remedy for these plaintiffs. First, Matter of A-B-, to my knowledge, is still on remand to the Immigration Judge. Therefore, there is no “final order” for judicial review purposes.
- Second, Matter of A-B- has never been subject to judicial review in any court. Yet, the plaintiffs in Grace face a likelihood of return to persecution without ever having a chance to challenge A-B- through a petition for review. That’s the result of Sessions’s improperly cutting off access to the Due Process hearing system before an Immigration Judge. If Matter of A-B- is eventually overruled by one or more Courts of Appeals, the respondents will have already been improperly deported to persecution or death.
- Nolan also uses some of the questionable EOIR statistics that I commented on separately in my preceding post: https://wp.me/p8eeJm-2W2
- The idea that Trump could essentially repeal the US asylum system on the basis of bogus national security concerns seems preposterous on its face. Yet, in the perverted “Age of Trump,” and given the Supremes’ majority’s spineless performance in Trump v. Hawaii, I suppose anything is posssible.
PWS
08-16-18
Paul says, “Unlike Nolan, I believe that the ACLU has properly stated a case for jurisdiction under INA 242(e)(3)(A)(ii). Sessions’s decision in Matter of A-B- has the force and effect of a regulation. Moreover, the DHS implementing instructions give it the status of a “written policy” concerning credible fear and expedited removal.”
The standard isn’t whether it has the force and effect of a regulation. The standard is whether it implements the expedited removal proceedings system. It doesn’t. It is an interpretation of asylum law.
Paul says, “Contrary to what Nolan suggests in his article, a petition for review of A-B- is not an adequate remedy for these plaintiffs.”
That’s right. The statutory provisions for expedited removal proceedings state that its removal orders are final without further review. There is no remedy when one is issued. That’s what makes them different from regular removal proceedings.
Paul says, “First, Matter of A-B-, to my knowledge, is still on remand to the Immigration Judge. Therefore, there is no “final order” for judicial review purposes.”
That’s a temporary problem. It will become a final order.
Pauls says, “Second, Matter of A-B- has never been subject to judicial review in any court. Yet, the plaintiffs in Grace face a likelihood of return to persecution without ever having a chance to challenge A-B- through a petition for review. That’s the result of Sessions’s improperly cutting off access to the Due Process hearing system before an Immigration Judge. If Matter of A-B- is eventually overruled by one or more Courts of Appeals, the respondents will have already been improperly deported to persecution or death.”
That’s true in every expedited removal case.
Paul says, “Nolan also uses some of the questionable EOIR statistics that I commented on separately in my preceding post: https://wp.me/p8eeJm-2W2”
I got those statistics from the EOIR website.
Paul says, “The idea that Trump could essentially repeal the US asylum system on the basis of bogus national security concerns seems preposterous on its face.”
I didn’t say anything about repealing the asylum system. I said that Trump has the authority to suspend asylum applications, subject to the necessity of considering withholding and torture convention claims, which are mandatory. And the immigration court backlog crisis is a very real national security concern.
But the main problem with Paul’s response to my article is that he is ignoring my main point, which is that if Sessions is prevented from eliminating the backlog by issuing precedent decisions to provide guidance on which persecution claims are acceptable, the administration is going to find other ways to do it.
Moreover, I have not predicted that the administration will do it by suspending asylum applications. I have just pointed out that such a suspension is one of the possibilities.
If Paul wants to protect asylum applications, he should be proposing better ways to quickly eliminate the backlog, not just criticizing Sessions or the examples I give of harsh alternatives that are available to the administration.
I’ve proposed all sorts of better ways of reducing the backlog. It took years to build and won’t be eliminated overnight. My “Eyore post” cited previously contains of blueprint of how an Administration interested in improving asylum and the Immigration Courts could go about it in a rational way, consistent with the Convention and Due Process.
Obviously, some keys are getting everyone access to lawyers, having a robust refugee processing system in the Northern Triangle, and having an independent Immigration Court. Eliminating the politization of asylum law and the constant interference by DOJ politicos, across a number of Administrations, and giving docket control to independent judges would be a great start. Another key is the rational use of the court system by DHS to work within the courts’ inherent capacity limits by using prosecutorial discretion as every other functioning system in America does.
Of course, nothing will eliminate a backlog overnight. But, these changes would certainly do more toward backlog elimination than Sessions’s train-wreck. Once the system is functioning better, additional ways of addressing the backlog, likely from the judges and their staff, should become apparent. The ideas of private counsel and DHS also should be considered, but are not determinative. Sessions, on the other hand, has excluded the views of almost everybody with any real knowledge or expertise in the court system from his decision-making.
At the end of the day, backlog elimination is related to Due Process, but not the “be all and end all” of Due Process. The primary Due Process problem with the backlog is the unfairness to litigants and their lawyers.
I’ll guarantee you that the current backlog issues won’t be solved by Sessions, Trump, & co. If anything, their current actions are more likely to lead to a complete collapse of the system where almost nobody gets removed.
PWS
08-16-18
Paul hasn’t responded to any of the things I said in my previous comment, but he has suggested a way to deal with the immigration court backlog crisis.
Unfortunately, his suggestion is typical of the way Democrats approach immigration issues. They announce solutions in op-eds, legislation, and so on, and then, when the Republicans reject or ignore their solutions, they say, “See, the Republicans are still refusing to cooperate.”
Democracies don’t work that way. Solutions have to be acceptable to both parties….unless one of the parties has absolute control. And maybe not even then. The Democrats did have absolute control during the first two years of Obama’s presidency and they didn’t pass any immigration reform legislation.
Paul says, “I’ve proposed all sorts of better ways of reducing the backlog. It took years to build and won’t be eliminated overnight. My “Eyore post” cited previously contains of blueprint of how an Administration interested in improving asylum and the Immigration Courts could go about it in a rational way, consistent with the Convention and Due Process.”
Is there a single immigrationcourtside.com reader who thinks the Republicans will respond favorably to that approach?
It did take years to create the current backlog, but it has reached a crisis level. The Trump administration is going to do what it thinks it has to do to eliminate it right away. Certainly, Trump isn’t going to put a plan in motion expecting future presidents to implement it.
Paul says, “Obviously, some keys are getting everyone access to lawyers, having a robust refugee processing system in the Northern Triangle, and having an independent Immigration Court. Eliminating the politization of asylum law and the constant interference by DOJ politicos, across a number of Administrations, and giving docket control to independent judges would be a great start. Another key is the rational use of the court system by DHS to work within the courts’ inherent capacity limits by using prosecutorial discretion as every other functioning system in America does.”
I agree about refugee processing in the Northern Triangle. I have suggested that a number of times. But Paul probably is just thinking of making it available to refugee/asylum seekers who have not made the journey to the US yet. That won’t reduce the backlog.
To reduce the backlog, the administration would have to remove asylum seekers from the immigration court docket and send them to the Northern Triangle refuge processing center instead of hearing their asylum claims in the US.
I don’t think any of the other suggestions would make a substantial reduction in the backlog.
Paul says, “At the end of the day, backlog elimination is related to Due Process, but not the “be all and end all” of Due Process. The primary Due Process problem with the backlog is the unfairness to litigants and their lawyers.”
I can’t think of a factor that would have less meaning to the Republicans than “unfairness to litigants and their lawyers.”
Paul says, “I’ll guarantee you that the current backlog issues won’t be solved by Sessions, Trump, & co. If anything, their current actions are more likely to lead to a complete collapse of the system where almost nobody gets removed.”
The system has collapsed already. Even with no new cases, it would take the immigration court four years to eliminate the backlog. The average wait for a hearing is two years. That means that deportable aliens who are already in the US can’t be deported unless you move other deportable aliens out of line to make room for them.
I do agree that the administration’s current actions are not going to solve the problem, but it is a serious mistake to assume that they will just give up when they realize that their methods aren’t going to work. They are going to resort to extreme measures!
If you don’t want that to happen, you need to find ways to eliminate the backlog quickly that would be acceptable to the Trump administration. Fortunately for you, you won’t suffer the consequences if you continue to complain and make unrealistic proposals. The undocumented aliens are the ones who are going to be hurt, not you.
Gee, Nolan, I put forth lots of reasonable points for immigration and Immigration Court reform. That they might not fit the GOP’s increasingly restrictionist, anti-immigrant, and racially charged immigration agenda might reflect on the likelihood of adoption at present, but has little or nothing to do with their merit. I watched the GOP move further and further to the right on immigration over the past 40 years. That’s the primary reason why we don’t have immigration reform, although we both agree that the Obama Administration also must shoulder major blame. I doubt that the immigration loggerhead can be broken without “regime change” on a number of fronts. That undoubtedly is a long term plan; but, if the GOP restrictionists have their way we won’t have a country. I’m hardly responsible for the extreme positions taken by Trump and company and for the GOPs moral and practical failings on immigration.
PWS
08-16-18
Nolan’s contentions rely on the specter of a “backlog” that requires cutting off due process to save the system. That’s like amputating the limbs to save the patient! Scapegoating asylum seekers because of an improperly managed backlog is just another tactic that white nationalists and racists like Sessions and Miller, and apparently, Nolan, too, turn to rather than examine the real causes of the backlog problem. Their time would be better spent anticipating the number of remanded cases that will further clog the system should Sessions be allowed to insist that the Immigration Judges and the BIA categorically deny asylum claims without engaging in the case by case adjudications required by the Supreme Court and decades of asylum jurisprudence.
Lory, what’s wrong with you? Do you think you can call me a racist white nationalist with impunity?
That’s libel. And Paul is responsible too for posting your comment.
Nolan: Truth is always a good defense against the charge of libel. And you do work for neo-Nazis and Whhite Supremacists now, as well as the Russians trying to dismantle American Democracy.
That’s total BS Nolan!
You’ve put yourself out there as a public author. Criticism is fair game whether you like it or not!
There is unquestionably a racial, White Nationalist aspect to the Trump Sessions Miller immigration program. Dozens and dozens of commentators have pointed that out. You can’t publicly associate yourself with Trump’s immigration package without opening yourself up to its obvious baggage of racial overtones! You can’t ignore the Trump Sessions Miller Bannon focus on race and spreading lies and dehumanizing images of migrants.
PWS
08-16-18
I don’t object to criticism, but defamatory statements about the kind of person I am is not criticism. It’s an ad hominem attack on my character.
I am not a racist or a white supremacist, and the fact that I write op-eds for The Hill does not give you or Lory the right to say that I am.
But obviously I am not going to sue you or Lory. I will just have nothing further to do with either of you.
As you wish, Nolan.
PWS
08-16-18
The fact that Jeff Sessions, who doesn’t know a thing about asylum law, and who is clearly pursuing a racist, anti-immigrant agenda, issued a decision which included dicta stating (wrongly) that most domestic violence and gang violence based asylum claims won’t meet the legal standard for asylum, doesn’t make such claims “meritless” as Rappaport claims. Sessions decided to issue a precedent decision. A precedent decision is subject to legal interpretation. To simply conclude that Sessions doesn’t want these cases granted, so why bother going through the analysis is completely improper, which is the point of the ACLU and CGRS lawsuit. If Rappaport wants to claim “meritless in the eyes of Sessions,” that would seem more accurate, as minds much more brilliant than the AG’s have repeatedly explained how such claims meet all of the criteria of A-B- and therefore merit a grant of asylum.
Also, in tossing around terms such as “meritless” and “improper persecution claims,” let’s remember Rappaport is referring to people WHO WILL BE KILLED IF RETURNED TO THEIR COUNTRIES. Before our government sends people to their death simply to pursue a political agenda, let’s let the courts review the propriety of the policies issued in response to A-B, as the ACLU and CGRS are trying to get them to do.
Nolan, giving you the benefit of the doubt, I really think you could have worded your arguments more neutrally. If you are going to run counter to every leading asylum scholar and attorney (and DHS, which stipulated to the grant in A-R-C-G-, and defended such decision in its brief to Sessions in A-B-) and adopt Sessions’ lone stance that such cases are meritless, you are inviting criticism.
Jeff, I disagree.
Sessions just restored Board precedent on domestic violence by reversing a 2014 board precedent that was improperly decided. He did not establish any new law.
I wrote an article explaining this in greater detail.
Moreover, no Attorney General writes immigration decisions himself. They are written by the Office of Legal Counsel, which when I was at the Board, had very capable attorneys. The one who wrote immigration decisions had a PhD in philosophy and an Ivy League law degree.
Incidentally, the AG can certify review of any Board decision, and although it happens infrequently, sessions is by no means the first to do it.
I wasn’t planning to respond to any more comments on Paul’s blog, but I was surprised and pleased to see that you made an objective, persuasive albeit incorrect response to my article and you did it without calling me any derisive names or insulting me in any other way.
You may disagree, but you have countered none of Jeff’s well-taken points. Moreover, a person’s Ivy League pedigree has little to do with their expertise or understanding of domestic or international asylum and refugee law. The notion of using A-B- as a vehicle to force categorical *denials* of asylum applications from Central American (and other) asylum seekers, whose claims are intended to be given case by case consideration on the rationale that there is a backlog, is unjustifiable and inhumane. This country, under Trump and his cohort, is systematically reducing its already minimal share of global refugee protection responsibilities and should be doing more, not less, in that regard. If any categorical assumptions are warranted that would serve to lighten the burden of individual adjudications in the Immigration Courts, the facts cut the other way. The reality is that it would make more sense to recognize what experts and scholars unanimously report – that the rampant violence and gang influence coupled with police and government complicity and corruption in Honduras, El Salvador and Guatemala, uniformly expose unprotected family members, dominated women, and other targeted members of particularly identifiable groups, to a credible, well-founded fear of persecution and trigger the need for surrogate protection in the U.S., just as contemplated in the Refugee Convention and Protocol documents forming the basis for our domestic statutory asylum and withholding scheme. If we are going to indulge in making generalizations about the merits of asylum claims to reduce caseloads, that would be a more defensible and humanitarian way to go.
As for my earlier comments, Nolan, it is as Paul said. Read the punctuation more carefully, as I did not call you racist or nationalist.
I’ve pointed out a number of times before that prior to Sessions & Co., “Matter of A-R-C-G- cases” were actually easy grants in the Arlington Immigration Court. Most had or could get good lawyers. The attorneys heavily documented the cases and worked with the Arlington Assistant Chief Counsel, who consistently applied the “Martin brief” to agree to or not oppose protection for DV victims long before A-R-C-G-. Informal requests by the ACC for additional evidence or for testimony on particular points were honored by respondents’ counsel. The parties jointly asked that the cases be moved up to my “short docket,” and I both encouraged those requests and honored them. As a result, most of these cases could be resolved to the satisfaction of both parties in one hour or less — final orders, no appeals. Good lawyering, good docket management, great results. No need for interference from the DOJ. The system actually worked as it should! The cases that couldn’t be resolved in this manner stayed on my “full hearing” docket where both sides had a chance to fully develop the record and present the evidence, and I could make an informed decision. But, they had to wait their turn.
An honest Administration would have used this as a model to both expand A-R-C-G- type protection to all “gender based” claims and to resolve such cases quickly and efficiently, preferably at the Asylum Office but otherwise on the Immigration Courts’ “short docket.” In addition to conserving time on both the trial and appellate court dockets and making better use of the Asylum Offices, such a process would have eliminated the need for highly emotional, often re-traumatizing, testimony in many cases. It would also have put the U.S. in our proper leadership position in implementing the intent of the Convention and the Refugee Act while advancing justice and human rights for vulnerable women. Really, a win, win, win!
For four decades, I have observed and sometimes participated in the righteous struggle by women and the LGBTGQ community for recognition of their dignity, humanity, human rights, and rights to protection on a par with that granted to men and other persecuted groups. Progress has been painfully and unnecessarily slow. It’s worth pointing out that A-R-C-G- was a precedent many years in development that all parties, including the DHS, agreed upon. In other words, that most elusive of all legal achievements — a consensus! Sessions’s unprovoked, legally incorrect, and factually wrong attack on this most vulnerable group and their human rights is contemptible. I will continue to speak out in favor of human rights for the oppressed and against those who support Sessions and his anti-asylum, anti-migrant, anti-Latino views and restrictionist agenda.
PWS
08-17-18
Lory explained this morning that she did not call me a white nationalist or racist. She said, “As for my earlier comments, Nolan, it is as Paul said. Read the punctuation more carefully, as I did not call you racist or nationalist.”
I don’t see her comment that way.
This is what she said about being a white nationalist and racist:
“Scapegoating asylum seekers because of an improperly managed backlog is just another tactic that white nationalists and racists like Sessions and Miller, and apparently, Nolan, too, turn to rather than examine the real causes of the backlog problem. ”
And this is what Paul said when I complained about being called such derisive things:
“You can’t publicly associate yourself with Trump’s immigration package without opening yourself up to its obvious baggage of racial overtones!”
Presumably he mentioned grammar in a subsequent comment that I haven’t read.
In any case, if either of them had responded last night that I was mistaken about being called a white nationalist and racist, I would have retracted my complaint about Lory then, which I am doing now. It was surprising that Lory would say that about me knowing that I was an immigration counsel for Congresswoman Jackson Lee and Congressmen John Conyers for seven years on the House Judiciary Committee.
But it seems to me that Paul’s reaction was that I should accept the fact that I will be considered a white nationalist and racist because I support Trump and Sessions. In fact, my article wasn’t intended to support either of them. My point, as I have said repeatedly already, was to warn the people who are trying to stop Sessions’ attempts to reduce the backlog that if they succeed, the administration will resort to extreme measures.
I haven’t gotten a response to that point.
I responded to Jeff’s comment late last night at a time when I wasn’t in the mood for prolonged debate on Paul’s blog. My main reason for responding to it was that I was pleased to see a criticism of my article that wasn’t an ad hominem attack on the kind of person I am. I will give a more complete response now.
Jeff says, “The fact that Jeff Sessions, who doesn’t know a thing about asylum law, and who is clearly pursuing a racist, anti-immigrant agenda, issued a decision which included dicta stating (wrongly) that most domestic violence and gang violence based asylum claims won’t meet the legal standard for asylum, doesn’t make such claims “meritless” as Rappaport claims.”
As I said last night, the Attorney General doesn’t write immigration decisions, his staff does; and he has a highly capable group of lawyers in the Office of Legal Counsel that assume that responsibility. However, I shouldn’t have supported this by giving the educational background of the lawyer in that office that I knew. He was a brilliant lawyer, but I can’t substantiate my opinion in this exchange on Paul’s blog.
I am puzzled by Jeff’s characterization of Session’s decision. Sessions’ discussion of domestic violence persecution claims was not dicta. It was the subject he was writing the precedent about, and his main criticism of the domestic violence precedent he was overruling was that it relied on stipulations from the government attorney instead of doing a rigorous analysis of the issue in the light of Board precedent.
I explain in greater detail in my article, “Domestic abuse decision doesn’t change asylum law, just applies it correctly”
http://thehill.com/opinion/immigration/392409-sessions-domestic-abuse-decision-didnt-change-asylum-law-just-applied-it
His remarks about gang violence claims were dicta, but they nevertheless were correct. It is difficult to establish a persecution claim based on gang violence if Board precedent on that subject is applied. This is explained in the CRS memorandum, “Asylum and Gang Violence: Legal Overview.”
https://fas.org/sgp/crs/homesec/R43716.pdf
Jeff says, “A precedent decision is subject to legal interpretation. To simply conclude that Sessions doesn’t want these cases granted, so why bother going through the analysis is completely improper, which is the point of the ACLU and CGRS lawsuit. If Rappaport wants to claim “meritless in the eyes of Sessions,” that would seem more accurate, as minds much more brilliant than the AG’s have repeatedly explained how such claims meet all of the criteria of A-B- and therefore merit a grant of asylum.”
Sessions did evaluate Board precedent in his decision. And my final criticism of ACLU for challenging the precedent in an expedited proceedings case was that the challenge should have been made in regular removal proceedings, which is a forum in which it could be fully evaluated in the manner required by the statutory provisions on reviewing removal orders.
Jeff says, “Also, in tossing around terms such as “meritless” and “improper persecution claims,” let’s remember Rappaport is referring to people WHO WILL BE KILLED IF RETURNED TO THEIR COUNTRIES. Before our government sends people to their death simply to pursue a political agenda, let’s let the courts review the propriety of the policies issued in response to A-B, as the ACLU and CGRS are trying to get them to do.”
I don’t know where this certainty about their fate comes from. The aliens who are the subject of my article failed to establish even a significant change of prevailing with their asylum claims. And the standard for asylum is “well founded,” which is far from a certainty. If they can establish that persecution is more likely than not, i.e., better than a fifty fifty chance, they should be eligible for withholding, which is mandatory relief.
Finally Jeff says, “Nolan, giving you the benefit of the doubt, I really think you could have worded your arguments more neutrally. If you are going to run counter to every leading asylum scholar and attorney (and DHS, which stipulated to the grant in A-R-C-G-, and defended such decision in its brief to Sessions in A-B-) and adopt Sessions’ lone stance that such cases are meritless, you are inviting criticism.”
I try to express myself as neutrally as possible.
Nolan is more concerned with himself than the facts or principals of law at stake, and failed to mention that the bulk of my comment addressed what he, Nolan, failed to acknowledge or discuss.
I stated that, “You may disagree, but you have countered none of Jeff’s well-taken points. . . .The notion of using A-B- as a vehicle to force categorical *denials* of asylum applications from Central American (and other) asylum seekers . . . is unjustifiable and inhumane.” Most importantly, I posited that, “If any categorical assumptions are warranted . . . to lighten the burden of individual adjudications in the Immigration Courts, the facts cut the other way. The reality is that it would make more sense to recognize what experts and scholars unanimously report – that the rampant violence and gang influence coupled with police and government complicity and corruption in Honduras, El Salvador and Guatemala, uniformly expose unprotected family members, dominated women, and other targeted members of particularly identifiable groups, to a credible, well-founded fear of persecution and trigger the need for surrogate protection in the U.S.” I proposed that, “If we are going to indulge in making generalizations about the merits of asylum claims to reduce caseloads, that would be a more defensible and humanitarian way to [grant them].” What about that, Nolan?
Lory says, ”Nolan is more concerned with himself than the facts or principals of law at stake, and failed to mention that the bulk of my comment addressed what he, Nolan, failed to acknowledge or discuss.”
This sounds like an insult too, but I will let it go.
Lory says, “I stated that, “You may disagree, but you have countered none of Jeff’s well-taken points. . . .The notion of using A-B- as a vehicle to force categorical *denials* of asylum applications from Central American (and other) asylum seekers . . . is unjustifiable and inhumane.”
I deliberately ignored that argument. I don’t think anyone who has read Sessions’ decision would think that is what he held. If the directive to implement the decision does that, Jeff should say so and explain how it does that.
Sessions took pains to point out that persecution claims require a rigorous analysis of board precedents. This was his conclusion:
“The Board, immigration judges, and all asylum officers should consider the following points when evaluating an application for asylum. First, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate, on the record and before the immigration judge, the exact delineation of any proposed particular social group. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA 2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). The immigration judge has a responsibility to “ensure that the specific social group being analyzed is included in his or her decision,” as it critical to the Board’s “appellate review that the proposed social group is clear and that the record is fully developed.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. at 191. The Board must also remember that it cannot sustain an asylum applicant’s appeal based on a newly articulated social group not presented before or analyzed by the immigration judge. Id. at 192; see also, e.g., Baltti v. Sessions, 878 F.3d 240, 244–45 (8th Cir. 2017) (finding no jurisdiction to review a newly defined social group because the claim based on “membership in that narrowed social group” had not been raised below); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014) (declining to address a particular social group raised for the first time on appeal).
“Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum. ”
Lory says, “Most importantly, I posited that, “If any categorical assumptions are warranted . . . to lighten the burden of individual adjudications in the Immigration Courts, the facts cut the other way. The reality is that it would make more sense to recognize what experts and scholars unanimously report – that the rampant violence and gang influence coupled with police and government complicity and corruption in Honduras, El Salvador and Guatemala, uniformly expose unprotected family members, dominated women, and other targeted members of particularly identifiable groups, to a credible, well-founded fear of persecution and trigger the need for surrogate protection in the U.S.”
I would expect judges who follow Lory’s advice to face their own removal proceedings, i.e., proceedings to remove them from the immigration court for blatant disregard of Board precedent. The categorical assumption she is recommending would make most of the people in Central America eligible for asylum, but I doubt that Lory would object to that outcome.
The sad thing is that Lory, and Paul, and others will keep pressing for more due process, more liberal asylum grants, and so on instead of facing the reality that the immigration court is collapsing already from having too many asylum cases. But they won’t be hurt in the end when the Trump administration takes extreme measures, such as the one I gave as an example.
It will be the aliens they claim they are trying to help who will be hurt.
I have no interest in continuing this debate.
I am talking policy, as I thought you were, Nolan. Although I advocate for case by case individual asylum decisions, the 700,000 case backlog, certainly was not created by and is not the responsibility of Central American refugees, and the resolution of the backlog requires a policy decision. Nothing in the A-B- decision allows for blanket denials of whole categories of asylum claims and I never would contend that Sessions’s opinion does such a thing. Nevertheless, the implementation of it in the CFI context, now being rightfully challenged by the ACLU, is attempting to use A-B- to cut off access to apply for asylum. That is illegal plain and simple. and that is what my comments address.
Lory says, “I am talking policy, as I thought you were, Nolan. Although I advocate for case by case individual asylum decisions, the 700,000 case backlog, certainly was not created by and is not the responsibility of Central American refugees, and the resolution of the backlog requires a policy decision.”
I am talking policy too. But I try to develop policies that will meet the essential political needs of both parties, and you seem to be advocating policies you think are “right.”
Lory says, “Nothing in the A-B- decision allows for blanket denials of whole categories of asylum claims and I never would contend that Sessions’s opinion does such a thing. Nevertheless, the implementation of it in the CFI context, now being rightfully challenged by the ACLU, is attempting to use A-B- to cut off access to apply for asylum. That is illegal plain and simple. and that is what my comments address.”
When I reviewed the ACLU’s case, I got the impression that they think the A-B- decision is wrong, not just that it is being misused. Regardless, they can’t litigate the way Session’s asylum precedent is being applied in expedited removal proceedings. As I explain in my article, the statutory provisions regarding court review of removal orders explicitly bars court jurisdiction over credible fear determinations.
But that doesn’t mean that such determinations are beyond reach. If that is what is really happening, ACLU should be taking its objections to Congress or to the White House. They can change the way expedited removal proceedings are conducted.
Not possible, you say? Based on seven years of working with the republicans on the immigration subcommittee, I disagree. There are ways to influence what the republicans do, in Congress and in the White House if you go about it intelligently.
But if you continue to make ad hominem character assassinations on Trump, Session, and the republican members who handle immigration issues, there is no reason to try.
You can’t compare Trump to Hitler and expect him to be receptive to your ideas.
I think it would be easier to get Trump’s cooperation than it would be to persuade republican congressmen to help you. As I have said in several of my articles, I believe that he was sincere in wanting to establish a legalization program for 1.8 million DACA participants. He wanted to establish himself as the president who can solve the impossible immigration issues that previous presidents have failed to solve.
You have him where you want him. He is so frustrated now over his inability to get immigration legislation through that he would be very receptive if the Dems stopped the constant Trump character assassinations and approached him with a reasonable plan for legislation that would meet the essential political needs of both parties.
What do you have to lose?
I am referring to immigration advocates, not to Democratic congressmen. The Democratic congressmen need to use immigration as a wedge issue if they expect to gain control of the house. Actually, they kept it as a wedge issue during the first two years of the Obama administration when they had total control and could have passed any immigration legislation they wanted to pass. They chose instead to use their power for issues they really cared about, such as Obamacare.
I agree that A-B- on it’s face claims not to be directing “blanket denials.” But, I actually think that such “blanket denials” were exactly what Sessions had in mind; that certainly seems to be how many Asylum Officers and IJs have interpreted it.
It’s also carried over to the Immigration Court hearing process where some Immigration Judges reportedly are now summarily denying asylum claims “on the papers” without giving the applicant a chance to testify, if the claim appears to be DV or gang related. Let the BIA and the appellate courts sort it out.
Sessions was just too disingenuous to say what he really meant. Plus, although the law has never been much of an impediment for Sessions and his restrictinist agenda, even he (or more likely his drafters) realized that there was absolutely no legal support for such a position. Therefore, he did the “next best thing” and hoped, as appears to be the case, that the AOs and IJs would “read between the lines” and send everybody home without a meaningful chance to be heard.
PWS
08-17-18
Nolan has no interest in continuing the debate. So what? Maybe Nolan should have considered that his friends are embarrassed that he works for the Russians, the neo-Nazis and White Supremacists.
And then Nolan throws Trumpian threats about IJs facing removal proceedings “for blatant disregard of Board precedent”. That has to be the most blatant showing of Nolan’s autocratic bent ever. Like Trump removing security clearance from the former US intelligence officers pointing out how Trump works for Putin.
Benedict Arnold is considered USA biggest traitor. But all he did was give the British the blueprints for West Point. Nolan and his friends gave the Russians the White House and for the worst of reasons. Money and hatred for the new dark skinned Americans. Shame on him.
I totally agree with Lory that:
“Most importantly, I posited that, “If any categorical assumptions are warranted . . . to lighten the burden of individual adjudications in the Immigration Courts, the facts cut the other way. The reality is that it would make more sense to recognize what experts and scholars unanimously report – that the rampant violence and gang influence coupled with police and government complicity and corruption in Honduras, El Salvador and Guatemala, uniformly expose unprotected family members, dominated women, and other targeted members of particularly identifiable groups, to a credible, well-founded fear of persecution and trigger the need for surrogate protection in the U.S.” I proposed that, “If we are going to indulge in making generalizations about the merits of asylum claims to reduce caseloads, that would be a more defensible and humanitarian way to [grant them].””
I’ve said that a number of times in prior blogs. As I pointed out in my comments yesterday, that was the way we were slowly but steadily moving in Arlington and some of the other Immigration Courts toward the end of the Obama Administration with A-R-C-G- — with the cooperation of both the ICE Chief Counsel’s Officer in Arlington and the private bar. The PD system was also starting to move in the direction of offering “extended protection” to those whose lives were in danger but who might have a hard time meeting the overly legalistic requirements for asylum. Some of these cases perhaps could have been granted; but, they were in the “gray area” where any result I reached would likely have ended up before the appellate authorities. So, it made perfect sense from all standpoints to save lives, save time, and get these cases where removal could be life-threatening off the docket. This is very much in line with the intent of the drafters of the Convention. Additionally, many of the folk in this situation had strong CAT cases. But, given the lack of formal legal status resulting from CAT grants, PD was a good “compromise solution.”
Rather than looking for constructive ways, agreed upon by all parties, and building on past successes, to address the Immigration Court backlog, consistent with Due Process, Sessions attacked the very parts of the system that actually were working and set ofF a frenzy of unnecessary acrimonious litigation that is likely to eventually collapse the entire system.
The answer to the collapse of a part of the justice system intended to guarantee Constitutional Due Process is NOT to attempt to eliminate the system or Due Process! It’s to get rid of the short-sighted individuals like Sessions who seek to “deconstruct” our Government and our entire justice system in the name of a White Nationalist vision not shared by the majority of Americans.
PWS
08-17-18
Let’s suppose Paul is 100 percent correct. It makes no difference at all. None whatsoever. His solution has no appeal to Trump, Sessions, or congressional republicans.
That’s a negotiations lesson I learned from handling negotiations for the democrats for seven years when I was a Judiciary counsel. Find a way to get what you need that meets the other sides needs, or leave the room. Your presence adds nothing to the discussion.
Paul will continue to watch what happens and complain along the way, but that won’t change anything.
As I said in my reply to Lory, it will be the aliens who pay the price when Trump and Sessions realize that they aren’t getting anywhere and resort to extreme tactics.
Nolan: Who do you think you are kidding? Who do you think you work for when you promote Trump and his master Putin’s brazen dismantling of USA Democracy? It is called Kakistocracy, on the way to a police state. Or as you once mused: a country where after the government decides, the people are bound, and the laws are strictly enforced. That’s so wrong.
When you meet your Jewish and Native American ancestors in the afterlife, and they ask why you spent your last years working for White Nationalists and Neo-Nazis, you better have a better answer than you only worked for the Hate Mexicans subdivision. Won’t do!
We fought a nasty World War II against your “blood and soil” immigration philosophy. It was aimed against Jews and other despised minorities, just as the TrumPutins aim against Mexicans. Google it.
And I last saw these dead end TrumPutins in person a year ago in Charlottesville, with their pickup trucks festooned with Confederate flags and pro-Trump bumper stickers on their way out of town after killing one of our citizens. Many were so upset that Trump had let his daughter marry a Jew. And that was what the “Unite the Right” rally was all about.
And why should we look for a solution that appeals “to Trump, Sessions, or congressional republicans.” When we have a law enforcement crisis, do we look for a solution that appeals to the criminals?
The only thing Trump, Sessions and congressional republicans who hate the new Americans deserve is their choice of a last meal before their execution for treason.
When people ask me what I want from Trump, reminds me of that scene in “Goldfinger”, when Goldfinger has James Bond tied up on a slab with a laser ray gun aimed at his genitals. Bond trying to save himself asks Goldfinger: “what do you want from me?” Goldfinger replies: “I want you to die 007, I want you to die.”
But I don’t want just that anymore. We need Trump impeached and removed from office, and then tried for hos high crimes and misdemeanors in a court of law. So no one ever again tries such treason. Then Trump should spend the rest of his life in federal prison being sodomized by other inmates so he learns how it feels like to be on the receiving end of sexual abuse. An old fart like Trump usually has all his teeth knocked out so he won’t bite.
Clearly Nolan would be more comfortable perching on the armchairs of the wizards who blog over at cis.org. They can toast one another with their koolaid over their genius strategies to eliminate all but “the best” immigrants. Like the ones in the White House currently….nothing but the best.
Judge Schmidt, please keep posting and shouting your opinion. We will drown out the Nolans of the USA sooner or later, and just like we often look back on history and scratch our heads, the generations of the future will hopefully be doing the same as they ponder these troubled times we are living in.
Thanks, Rox!
I certainly want the historical record to show that I stood with those opposed to,Trump, Sessions, Miller, and the GOP White Nationalist racists. And, I want my children, grandchildren, and great grandchildren to know it too!
I think that a century from now when America is a strong, diverse, multi racial, successful nation, some Americans are going to be very ashamed at finding out how their ancestors coddled, supported, or enabled Trump and his dishonest, racist, and fundamentally anti-American, pro-Authoritorian agenda.
We’re still coming to grips with the truth about all the false heroes and self-aggrandizing bigwigs who participated in or profited from slavery and Jim Crow! And, how does Hitler appeaser Neville Chamberlain look today? How about former UN Sec Gen Kurt Waldheim who aided the Nazis? The Good Fathers of Georgetown U (where I teach) who separated and sold their slaves “down the river” to finance their school? The morally corrupt and dishonest judges on the state and federal level who enabled and furthered Jim Crow?
There is a right side and a wrong side to history. Those who support Trump, Sessions, and Miller are squarely on the wrong side. And there is plenty of evidence out there to prove it. Sadly, some folks are allergic to facts, as well as common sense and basic morality.
PWS
08-18-18
How does making ad hominem attacks on people you disagree with put you on the right side of history?
History will indeed judge us by our deeds! A lesson too often ignored while “in the moment” but one that will come back to haunt our collective consciousness.
But in the meantime, how about we get you a Twitter account tied to your blog and fight fire with fire 🙂 If the great Pumpkin can do it, I know the great Schmidt can do it better! Let’s talk after you get back to VA – I have an idea……
Nolan, you’ve made your argument, and put your place history. Let yourself rest in the place where you think you belong. And after that, just “be.” History will make it’s judgment; you don’t have to worry about it.
Nolan, you have made your point., and sadly. you will be remembered for your words here. History will remember what you had to say. Your words will be remembered for what they were. The same sad words of the man you call “the president”……
Trump’s many racist, xenophobic, and misogynist statements are a matter of public record, not really open to debate. Trump also is a proven congenital liar. So, I suppose one could take the position that every racist, xenophobic, or misogynist statement Trump ever made is just another lie. But, his policies say otherwise. And, it’s not like we are the first — or last — people to point this out. Guys like Miller, Bannon, and Sessions also have long, very clear, well-developed records of racist statements and actions. Heck, decades ago Sessions’s own party (a decidedly different GOP than we have now) denied him a Federal judgeship based on his racial insensitivity. And, although the record will show that I originally gave him the “benefit of the doubt,” there is nothing that Sessions has done since taking office that would cast doubt on his racist credentials. Sad, but true.
PWS
08-19-18
PWS
08-19-19
Your comment indicates that you did not actually read my article. As I have said repeatedly, despite being ignored every time, my article is just a warning that if Sessions fails to bring the immigration court backlog under control, the administration will resort to extreme measures.
I do agree with Sessions’ analysis of the domestic violence issue though, but I have no interest in discussing it with anyone. As far as I could tell when I reviewed it, he just overruled a very poorly written Board precedent, which reinstated previous, long-standing board precedent on that issue.
Yes, I call Trump “the president.” Like it or not, that’s who he is. But before I retired from government service, I represented the Democrats as an immigration counsel for seven years on the House Judiciary Committee, which included negotiating in their behalf with the Republicans on bills and at Conferences.
But it was a different party then. When I wrote speeches and prepared talking points for bills on the floor and at markups, I stated objective reasons for disagreeing with Republican positions.
I don’t know when ad hominem name calling took the place of responding to the merits of Republican positions, but it has made me ashamed that I ever considered myself a Democrat.