"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Data from the Center for Migration Studies
Shows Sharp Multiyear Decline
in Undocumented Immigration
New York, NY – In a paper released today, the Center for Migration Studies of New York (CMS) reports that the US undocumented population has declined by one million since 2010; illegal entries have plummeted to historic lows; and, in recent years, only one third of newly undocumented residents entered this population by crossing the US-Mexico border. The paper, authored by CMS’s senior visiting fellow Robert Warren, includes four graphs that illustrate major demographic trends in the undocumented population since 2000 and a table that provides detailed information about the size and components of undocumented population change annually since 1990. This paper combines CMS data and Department of Homeland Security (DHS) statistics on apprehensions, adjustment of status, and removals, to illustrate major trends in undocumented immigration to the United States since 1990.
Major findings include:
Undocumented population growth peaked in 2000, then dropped rapidly from 2000 to 2010; the total population has declined by one million since 2010.
The drop in DHS apprehensions at the border mirrored the decline in undocumented population growth, falling from 1.6 million in 2000 to about 300,000 in 2017.
Undocumented population growth stopped because undocumented arrivals fell from 1.4 million in 2000 to about 550,000 in 2007 and have since continued at about that level, while the number leaving the undocumented population increased steadily, from 370,000 in 2000 to 770,000 in 2016.
From 2010 to 2016, about two-thirds of undocumented arrivals overstayed temporary visas; only one-third entered across the US-Mexico border. Overstays exceeded those who entered without inspection (EWIs) after 2008, not because the overall number of overstays increased (these numbers remained stable), but because EWIs continued to decline.
“Multiyear trends show a dramatic decline in both the undocumented population and undocumented migration to the United States. While there is a need to address the conditions driving asylum-seekers and other migrants to our borders and to make US ports-of-entry more secure, our findings show significant progress at the US-Mexico border, not a national emergency,” said Donald Kerwin, CMS’s executive director.
There is no “Southern Border Crisis” going all the way back into the Obama Administration’s unnecessary “panic approach” starting in the Summer of 2014. There is, however, gross maladministration of the asylum system, the process at legal ports of entry, and the U.S. Immigration Courts.
Not only is “Trump’s Wall” a wasteful and unnecessary piece of restrictionist diversion, it actually fails to address the major source of undocumented migration these days — nonimmigrant visa overstays and other issues at legal ports of entry.
Yet, Trump gets way with spreading false narratives and making up fake statistics to advance his factually unsupportable and dishonest “White Nationalist Agenda.” Here’s a link to a Newsweek article on Trump’s latest “litany of lies” about Immigration Court including the “Super Whopper” that “only 3% show up for hearings.” https://apple.news/Ak5yRHdLeSc-Qnq-jDR-
Wow, how does he get away with these total fabrications; the Government’s own statistics actually show that represented asylum applicants show up for hearings at a rate that’s much closer to 100% than 3%! Obviously, the real answer to asylum arrivals at the Southern Border is to get them pro bono lawyers, apply asylum law honestly and without bias, have hearings in a reasonable and timely manner, and let the chips fall where they may.
Most experts believe that under such a system the majority of arrivals from the “Northern Triangle” will qualify for asylum. That’s certainly my experience.
But, since we are not allowing the system work in the fair, impartial, and independent way it was intended, nobody actually knows the answer. Except that we do know that systemic fairness and efficiency could be achieved for less than the billions of dollars that Trump and his supporters are willing to waste on an unnecessary and ineffective “Wall.”
Worse yet, neither GOP legislators nor Trump’s rabid supporters and enablers are willing to “call him out” on his lies. Facts do matter; as long as they are buried beneath Trump’s lies, and as long as a significant portions of the electorate and the legislature remain uninterested in truth and an honest dialogue, we’re going to have difficulty moving forward as a nation.
That’s why we need the energy and dedication of the “New Due Process Army” to keep advancing a vision of a kinder, more decent, more humane, more inclusive America for as long as it takes to realize America’s noble, yet unfulfilled, promise of “liberty and justice for all.”
“Give me your tired, your poor, your huddled masses yearning to breathe free.”
These words from an Emma Lazarus sonnet, engraved on a plaque on the pedestal of the Statue of Liberty, are not policy or law. Yet they embody the ideals and spirit of America, a land of immigrants.
Despite the countless ways that immigrants have advanced our country and have helped to fuel innovation and growth, the United States cannot welcome everyone who yearns to breathe free. Our nation needs to regulate and control immigration, have secure borders and keep people safe. But developing clear, comprehensive, practical and humane immigration law is possible—and long overdue.
Policies that separate children from their parents or deny legitimate asylum-seekers due process violate both our values and established law. The ABA has made this clear in a letter sent to the U.S. Attorney General and Secretary of Homeland Security. The ABA has suggested guidelines and compiled thoughtful and well-researched publications such as the recently updated “Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States.”
While crafting comprehensive immigration law in a divided society can be difficult, it is imperative. One place to start is immigration courts.
An independent judiciary is a hallmark of our democracy. It encompasses the principle that all people are entitled to fair and impartial legal proceedings where important rights are at stake. Immigration courts decide issues that are life-altering.
Immigration courts, however, lack the safeguards that other parts of our justice system have. Structural and procedural issues have resulted in a backlog of more than 800,000 cases even though in recent years Congress has added resources, including a sizable increase in the number of judges and support staff.
Immigration courts currently exist within the Justice Department. Their personnel and operations are subject to direct control of the attorney general. Immigration judges can be removed without cause and can be at the mercy of whatever policy the attorney general wants followed. It can change from administration to administration. This structure creates a fatal flaw to an independent, impartial judiciary.
Restructuring the immigration adjudication system into an Article I court is the best solution to promote independence, impartiality, efficiency and accountability. Article I legislative courts are established by Congress, and judges would only be subject to removal for cause and not without judicial review. The U.S. Tax Court—where judges are nominated by the president, confirmed by the Senate and serve terms of 15 years—could act as a model. The idea has been endorsed by the National Association of Immigration Judges for more than two decades. The ABA adopted policy in 2010 calling for the creation of Article I immigration courts.
Another problem is representation. Access to counsel and legal information are critical in ensuring fairness and efficiency in the immigration system, yet only 37 percent of people in removal proceedings and just 14 percent of those detained are represented by counsel. The odds of winning an asylum case without legal representation are one in 10 while those with a lawyer win nearly 50 percent of their cases.
The ABA supports the right to appointed counsel for vulnerable populations in immigration proceedings, such as unaccompanied children, and mentally ill and indigent immigrants. Budgetary challenges make this unlikely to happen soon, so access to as much information about the process is critical.
The ABA, supported by its Commission on Immigration, will continue to advocate for fairness and full due process for immigrants and asylum-seekers in the United States and ensure an equitable, effective process for adjudicating immigration cases. This serves the interest of both the government and individuals within the system.
Our efforts to solve the problems must not undermine the fundamental principles that exemplify America and our justice system. Welcoming immigrants has been a strength of America since its founding.
As President George Washington said: “The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”
***************************************
I testified before the ABA Commission on Immigration about the “Due Process Crisis in Immigration Court,” the need for an Article I Court, the requirement for more lawyers, and the absolute Due Process disaster engendered by the intentionally misguided policies of the Trump Administration as they related to the abusive, counterproductive, and disingenuous use of the Immigration Courts as a branch of DHS Enforcement. The massive failure of Due Process in the U.S. Immigration Courts, the “retail level” of our justice system, threatens the individuals rights of all of us!
ABA Hispanic Commission CLE: Future Legal Issues Facing the Hispanic Community
American Bar Association, 1 PM EST
4-Part Seminar – Future Legal Issues Facing the Hispanic Community
An in-depth look at the future of Hispanic rights, Immigration, Healthcare, and Children’s Rights; advice regarding career strategies and navigating the workplace.
Here are the links to the agenda and registration information:
GW Law Professor and Clinic Director Alberto Benitez will be on the program and says:
“I’ll be on a ABA panel Friday, March 8. You are invited. The entire program is free for law students.”
*******************************************
IN NY CITY:
Description
The 2019 New York Asylum & Immigration Law Conference will take place on Friday, March 8th, 2019, at New York Law School. Designed to engage new attorneys as well as more experienced lawyers, academics, and students, the conference features panels ranging from introductory presentations on asylum law to more specialized and advanced sessions. Three tracks allow participants to engage in diverse topics including constructing narrative, detention, discussion of mandatory bars to asylum, and advanced issues such as new developments in particular social group formation. Earn up to 7.5 CLE credits, including Ethics as well as Diversity, Inclusion & Elimination of Bias credits.
This year, our conference is on International Women’s Day. Our plenary session and other events will commemorate and celebrate acts of courage and determination by women who have played extraordinary roles – as artists, as activists, and as advocates.
This conference is organized by the Federal Bar Association Immigration Law Section and New York Law School’s Asylum Clinic.
Registration closes on Wednesday, March 6th. No walk-in registrations, please.
NEW VIRGINIA LAWS HELP IMMIGRANT CHILDREN SEEK PROTECTION FROM ABUSE, NEGLECT, AND ABANDONMENT
RICHMOND: On Friday, February 22, the Virginia General Assembly passed SB 1758 and HB 2679, identical bills that will aid immigrant children fleeing abuse, neglect, and abandonment in their home countries in seeking protection from deportation in Virginia.
Across the country, many immigrant children and DREAMers facing deportation proceedings seek a form of immigration relief called “Special Immigrant Juvenile Status” (SIJS). SIJS is unique in that it requires a state court to issue a certain type of order before the child may even attempt to seek SIJS relief from the federal government. In a 2017 case called Canales v. Torres-Orellana, brought by the Legal Aid Justice Center, the Virginia Court of Appeals sharply restricted state judges’ ability to issue these orders, leaving hundreds of Virginia immigrant children without protection. Virginia became one of the most difficult states in the nation to obtain SIJS.
During this year’s General Assembly session, Legal Aid Justice Center worked closely with legislators and the Governor’s office to pass these bills, which would overturn the Canales case and restore Virginia immigrant children’s ability to apply for SIJS. The bills also address the needs of other children before the juvenile courts, easing the way for any Virginia child to seek a state court’s assistance in proving eligibility for other benefits such as adoption assistance, TANF assistance, and timely public school enrollment.
SB 1758 was introduced by Sen. Scott Surovell (D-Mount Vernon). HB 2679 was introduced by Del. Marcus Simon (D-Falls Church). The bills initially took different approaches to fixing this issue, and each passed their respective chambers with an overwhelming bipartisan majority of votes. The bills were then placed into committees of conference in an attempt to gain consensus, and identical bills emerged that combined the approach of both; they garnered unanimous support in the House, and only two dissenting votes in the Senate. The bills now go to Governor Northam’s desk for his signature; once signed, they will take effect on July 1 of this year. The conference report with bill text is available at: http://leg1.state.va.us/cgi-bin/legp504.exe?191+ful+SB1758S1+pdf
“Immigrant children in Virginia can breathe a little more easily now,” said Simon Sandoval-Moshenberg, Legal Director of Legal Aid Justice Center’s Immigrant Advocacy Program. “Our agency has represented over 150 children fleeing truly horrific situations of abuse or neglect in their home countries. Fairness dictates that they be afforded the same rights as immigrant children in any other state. Now these new DREAMers will be able to seek protection and apply to remain in the United States with green cards.”
“This excellent result could not have come about without the leadership and hard work of Senator Surovell and Delegate Simon, and the support of Governor Northam’s administration,” said Amy Woolard, Legal Aid Justice Center Attorney and Policy Coordinator. “Virginia’s Juvenile and Domestic Relations courts should exist to protect the best interests of all children in the Commonwealth, and these bills will now make clear that is true for immigrant children seeking safety through SIJS, as well.”
“The United States has a long history of protecting abused, neglected, and abandoned children, and the Commonwealth will continue to play its part,” said Sen. Surovell. “These bills will clarify and restore Virginia courts’ authority to make factual findings necessary to protect children fleeing abuse, neglect, and abandonment from abroad, and I appreciate the broad bipartisan support of legislators who saw this as consistent with Virginia’s longstanding values.”
“I’m so pleased we were able to pass this important legislation to give our courts the authority they need to be able help some of the most vulnerable and powerless people in our Commonwealth,” said Del. Simon. “It is so important that we not let victims of abuse, neglect, and often abandonment fall through the cracks because of a technical deficiency in our code. Those are the common sense problems we are elected to come down here and fix.”
Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/.
*************************************************
And, here’s the latest from the fabulous Dan Kowalski, “Chief Immigration Guru” at LexisNexis Immigration Community:
Thanks to the efforts of the Rocky Mountain Immigrant Advocacy Network (“RMIAN”).
Passage of HB19-1042: Extension of State Court Jurisdiction for Vulnerable Youth
RMIAN is thrilled to announce the passage of House Bill 19-1042 through the Colorado House and Senate. The bill was sponsored by Representative Serena Gonzales Gutierrez and Senator Julie Gonzales and is now awaiting signature by Governor Polis. This bill will allow immigrant youth who have been abused, neglected, and abandoned to gain access to Colorado State courts for necessary protection and care, and to establish their eligibility for federal immigration relief. Ashley Harrington with RMIAN Children’s Program helped to craft this important legislation with Representative Gonzales Gutierrez, Senator Gonzales, Denise Maes with the ACLU of Colorado, Kacie Mulhern with the Children’s Law Center, Ashley Chase from the Office of the Child’s Representative, Katie Glynn with Grob & Eirich, and Bridget McCann, a RMIAN pro bono family law attorney. Celebrating the law’s passage today Ashley Harrington says, “I am so proud and honored to have been a part of making this law a reality that will impact the lives of many vulnerable immigrant children and ensure that they can find safety and stability in Colorado.”
Denise Maes, Ashley Harrington, Senator Gonzales, Representative Gonzales Gutierrez, Katie Glynn and Kacie Mulhern at the Capitol 3/1/19.
***********************************************
Compare this with the Trump Administration’s cruel and shortsighted efforts to mindlessly restrict the scope of these important SIJ protections for some of our most vulnerable youth. Here’s my recent blog featuring WNYC’s Beth Fertig reporting on the Federal Judge’s adverse reaction to the DOJ’s disingenuous arguments “in defense of the indefensible” in his court. Talk about abuse of our court system by our Government! https://immigrationcourtside.com/2019/02/27/beth-fertig-wnyc-federal-judge-tires-of-administrations-absurdist-legal-positions-in-court/
SIJ cases also have the huge benefit of being processed outside the clogged U.S. Immigration Court asylum system, thus keeping many cases out of the largely artificially created “backlog” that is handicapping Due Process in Immigration Court.
There are many ways of using and building on current laws to make the immigration and justice systems work better. It’s a national disgrace that the Trump Administration isn’t interested in Due Process, fairness, or making our immigration system function in a more rational manner.
The good news: Eventually, the small minds, incompetence, and “radical White Nationalism” of this Administration and its enablers will be replaced by smarter, wiser, more capable folks like those in the LAJC, the RMIAN, and other members of the New Due Process Army. These are the folks who someday will lead us out of today’s darkness into a brighter and more enlightened future for all Americans!
WASHINGTON — Undocumented immigrants are increasingly choosing to cross the U.S. border illegally rather than waiting in line to claim asylum at legal ports of entry, according to U.S. Customs and Border Protection data obtained by NBC News.
Immigration lawyers and rights advocates say asylum seekers are opting for illegal crossing because they are growing frustrated with waiting lines caused by Trump administration policies. Advocates say immigrants who might otherwise have presented themselves at legal ports are now going between entry points where, if caught, they can remain in the country while awaiting an asylum hearing.
In recent months, CBP has restricted the number of immigrants who can be processed for asylum at ports of entry and has begun turning back asylum seekers, who must now wait in Mexico while their cases are decided.
CBP data shows that at the same time, the proportion of immigrants caught crossing illegally rather than through legal ports of entry has been rising.
It climbed from 73 percent of border crossings between October 2017 and January to 2018 to 83 percent for the same period ending this January 31. The percentage reporting to legal ports of entry, meanwhile, dropped from 27 percent to 17 percent, even as the overall number of border crossings rose sharply, according to the data.
An official from the Department of Homeland Security, of which CBP is a part, said those abandoning legal entry points may not have legitimate asylum claims.
“The fact that illegitimate asylum seekers may be abandoning efforts at our [ports of entry] means that legitimate asylum seekers at the [ports of entry] can receive protections far more quickly — which has been our goal from the start,” said the DHS official. The department declined to comment on the record.
WAITING IN TIJUANA
In January, U.S. officials finalized a deal with Mexico that forces asylum seekers who present themselves at the legal port of entry in San Diego back across the border to Tijuana. There they must wait months or years, often in unsafe and unsanitary conditions, while an American immigration judge determines whether asylum can be granted. The policy, known as Remain in Mexico, may soon spread to other ports of entry if Mexico agrees to shelter the immigrants at other locations.
Illegal crossers, meanwhile, do not have to wait in Mexico, even if they are caught. Two DHS officials told NBC News that there are no plans to send asylum seekers back across the border if they are caught crossing illegally, primarily because the Mexican government lacks the infrastructure to shelter them at what are often remote points.
If they are caught and do not claim asylum or pass the initial asylum screening, procedure requires that they are flown back to their home countries. Most current border crossers are not from Mexico but from Honduras, Guatemala and El Salvador.
Immigration advocates and lawyers say immigrants are being warned about the conditions in cities like Tijuana and are increasingly choosing to risk apprehension by the Border Patrol while crossing into the U.S. illegally instead of waiting in Mexico.
Michelle Brané, director of the Women’s Refugee Commission, said 9 out of 10 immigrants she spoke to in CBP custody would tell her and her staff they made the choice to cross illegally after other migrants told them the line to enter legally would mean a long wait in a dangerous place.
“They would say, ‘There was a line and they told me I would get turned away,’ or, ‘People told me it’s too dangerous and you can’t get in that way,'” Brané said.
The most notorious line is in Tijuana, where thousands of immigrants have waited in shelters and tent camps since last fall, hoping to claim asylum to enter San Diego.
The government of Mexico closed a large migrant shelter there in December due to unsanitary conditions and another was shut down last month, forcing families to disperse and often to live on the streets. Also in December, two migrant boys were lured out of their shelter and murdered.
Immigrants in Tijuana keep what is known as “la lista,” or the list, to decide who can approach the U.S. border each day to claim asylum, according to affidavits by immigration lawyers. Due to a U.S. policy known as metering, only about 40 to 100 immigrants per day are permitted to enter. CBP is only permitting a maximum of 20 migrants per day to cross into Eagle Pass, Texas, where another group of about 1,800 immigrants has recently arrived.
DHS says metering is a result of only being able to process so many asylum seekers per day, due to limited resources. However, the Trump administration has not increased its manpower for processing asylum claims at the border, though it has increased border enforcement officers and numbers of military troops.
A CALCULATED RISK
The number of undocumented immigrants attempting to enter the U.S. from Mexico is not near levels seen in the early 2000s. But the overall number of undocumented immigrants crossing the southern border has risen since a year ago. From October 2017 to January 2018, according to CBP figures, 150,346 crossed the border, a number that surged to 242,667 in the same four-month period ending in January 2019.
The biggest surge has come in the numbers who are crossing illegally. CBP apprehended more than 200,000 crossing illegally between October 2018 and this January, compared to 109,543 a year earlier — nearly doubling the total of illegal crossings.
Working with asylum seekers in Tijuana in December, Kennji Kizuka, senior researcher and policy analyst at Human Rights First, said he saw some immigrants grow frustrated with the wait and try their luck at crossing illegally.
“People were leaving and saying they were about to cross. They had just given up on waiting their turn to get on the list after finding out how long it was and how many months they would be there and how horrible the conditions were,” Kizuka said.
But crossing between legal ports of entry also comes with dangers.
Late last year, two children who crossed with their parents died in CBP custody after being picked up in remote areas after making long journeys, where access to water and other basic needs are severely limited.
Border Patrol Chief Carla Provost told Congress on Tuesday that for the first time in U.S. history, families and unaccompanied children make up 60 percent of those arrested between ports of entry. Also, Provost said border patrol is noticing that families and unaccompanied children are traveling in larger numbers: Nearly 68 groups ranging from 100-350 so far in 2019, compared to 13 last year and two the year prior.
Immigration advocates say the large groups are due in part to a “safety in numbers” strategy as families and children are being warned about the dangers not only on the journey but as they await entry to the U.S. in northern Mexico.
Julia Ainsley
Julia Ainsley is a national security reporter for NBC News.
***********************************************
They AREN’T “illegitimate” asylum seekers! They are individuals seeking to exercise their legal rights under U.S. and international law to be granted protection as refugees. They are entitled to fair and humane treatment.
What IS “ILLEGITIMATE” is the scofflaw Trump Administration’s failure to recognize these legal rights and their intentional mistreatment of those seeking asylum. What is also “illegitimate” is having Government employees lie about asylum seekers. The folks putting out these bogus and pejorative statements about asylum seekers should be fired!
In enacting the Refugee Act of 1980, Congress recognized, as had the international community in the Refugee Convention, that manner of entry into a signatory country has little if anything do with whether or not one qualifies under the “refugee.” Desperate people do desperate things. And refugees are the very definition of “desperate people.”
The claim that this Administration is fairly processing asylum seekers is absurd. As this article points out: 1) conditions in Mexico are known to be dangerous for asylum seekers; and 2) although willing to spend money on bogus “stunts” like “the Wall,” unnecessary troops, and cruel and mindless detention, this Administration has totally failed to do the obvious things to facilitate asylum processing: work with the private bar and NGOs to get lawyers involved for the applicants; increase the numbers of Asylum Officers, Immigration Judges, Port of Entry Inspectors; use sensible “prosecutorial discretion” to clear the hundreds of thousands of “low priority cases” that should be administratively closed off the Immigration Court docket so that judges can deal fairly and efficiently with newly arrived asylum seekers in accordance with the constitutional requirement of Due Process; and perhaps most important, revoke incorrect and misguided precedents so that asylum law can be applied and interpreted in the generous manner originally intended by the Refugee Act and reinforced by the Supreme Court in Cardoza-Fonseca.
If that were done, many of these individuals could be granted asylum, receive legal status, and commence working, paying taxes, and contributing the full measure of their skills to the common good of our country. We’d actually be generating revenue rather than wasting it on misplaced and dishonest “enforcement initiatives” aimed at individuals who mean us no harm and could do us much good if we would let them.
Actually, this Administration’s toxic border policy operates much like Sessions’s program to destroy the U.S. Immigration Courts to promote extreme nativist “solutions.” Rather than working diligently to process asylum seekers fairly under the law, the Administration chooses to “break” the system and then declare a bogus “emergency” that supposedly justifies draconian (yet actually unnecessary and counterproductive) enforcement actions.
I predict that the Administration’s lawless and mindless approach to border enforcement and asylum adjudication will eventually convince asylum applicants (and the professional smugglers that the Trump Administration promotes, enriches, and enables) to simply avoid the border all together. There are lots of ways of getting folks into the interior without having them turn themselves in at ports of entry or to the nearest Border Patrol Agents, particularly when legitimate law enforcement has been diverted by Trump to concentrating (and promoting with false narratives and scenarios) on a “crisis that isn’t.”
Trump’s diversion of resources and attention should also be a boon for realcriminal activity crossing the border. In other words, the Trump Administration has been great for the business of cartels, druggies, human trafffickers, and other “bad guys” taking advantage of incompetent leadership and lack of concern for protecting America from real crime.
Sure it will cost more, probably kill some more asylum applicants, and make enforcement and administration of our immigration laws more difficult and less effective. But, that’s pretty much what Trump’s “dumb” White Nationalist agenda is about anyway. Doubling down on failed policies to stoke racism, hate, and “fake” rule of law arguments for the benefit of those either too biased or ill-informed to grasp the realities of human migration and basic human rights.
Back to Julia’s article, I’ve always enjoyed her timely and very clear reporting. It’s also great to see her on NBC TV more these days. Her previous stint on the “immigration beat” at Reuters its a perfect “tie-in” to her current national security beat.
The panel granted in part a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Cameroon, and remanded.
The panel rejected petitioner’s contention that she was deprived of her due process right to a full and fair hearing based on the denial of her right to retained counsel and an unbiased fact finder. The panel held that the IJ in this case provided petitioner reasonable time to locate an attorney, where the IJ provided several continuances so she could do so, warned her repeatedly that he would not grant further continuances, and attempted to call her attorney when he failed to appear on the day of her merits hearing. The panel also held that although the IJ was rude and harsh with petitioner, petitioner failed to establish that the IJ’s conduct prejudiced her, where the IJ held a complete hearing and made a thorough decision that fully examined the underlying factual matters, and any potential prejudice caused by the IJ’s questionable adverse credibility determination was cured by the Board’s subsequent decision assuming the credibility of petitioner’s testimony in full.
The panel held that the Board committed three legal errors in its application of the firm resettlement bar, which precludes asylum relief if an applicant was firmly resettled in another country prior to arriving in the United States. First, the panel held that the Board erred by failing to consider whether the conditions of petitioner’s offer of resettlement in South Africa were too restricted for her to be firmly resettled. Second, the panel held that the Board erred by applying the firm resettlement rule not as a mandatory bar to petitioner’s asylum claim, but instead as a limitation on the evidence the Board considered in support of her claim for relief from removal to Cameroon, thus causing the Board to improperly ignore evidence of the abuse petitioner suffered in Cameroon before fleeing to South Africa, as well as evidence of the nature of her relationship with her abuser. Third, the panel held that the Board erred by applying the firm resettlement bar to petitioner’s withholding of removal claim, which is not subject to the firm resettlement bar.
Turning to petitioner’s CAT claim, the panel held that substantial evidence did not support the Board’s determination that petitioner could avoid future harm through internal relocation in Cameroon.
The panel remanded petitioner’s asylum, withholding, and CAT claims for further proceedings consistent with its opinion.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PANEL: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,* District Judge.
* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation.
OPINION BY: Judge Gould
KEY QUOTE:
Petitioner Delphine Arrey petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision dismissing her appeal of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We conclude that the IJ did not deny Arrey her due process rights to counsel and an unbiased factfinder. As to Arrey’s asylum and withholding of removal claims, we conclude that the Board erred as a matter of law in its analysis and application of the “firm resettlement” rule. As to Arrey’s claim for relief under CAT, we conclude that substantial evidence does not support the Board’s determination that Arrey could safely relocate in another area of Cameroon. We grant the petition in part and remand for reconsideration of Arrey’s claims consistent with our opinion.
Even the 9th Circuit “blew” the fundamental issue here: No matter how annoying the respondent’s conduct might have been, there was no way to conduct a fair hearing in a case of this complexity without counsel present.
From this recitation of facts, it’s pretty obvious that the respondent had no idea what “firm resettlement” was or how the process for proving or disproving it worked. Going ahead with the hearing created a miscarriage of justice that simply wasted time by going all the way the 9th Circuit and then being returned for competent judicial adjudication applying the correct standards. Haste makes waste.
And the overwhelming backlog that obviously was on the judge’s mind here was not created by this respondent and her attorney; no, it primarily results from “aimless docket reshuffling,” poor administration, Congressional neglect, and “designed to fail policies” by politicos in the DOJ (under the improper and unethical political influence of the DHS) which went into “overdrive” under Sessions.
Getting to the merits, beyond apparently correctly setting forth the respondent’s name and “A number,” the Immigration Judge and the BIA got largely everything else in this case wrong! The basic errors range from a “clearly erroneous” adverse credibility ruling, to a legally incorrect standard for “firm resettlement,” to an idiotically nonsensical ruling that “threats and one attempted assault of rape” did not “rise to the level of persecution” (cases involving these facts were routinely granted by the BIA during my tenure and, to my knowledge, were uniformly granted by IJs in Arlington; indeed, I can’t even imagine an ICE Assistant Chief Counsel during my tenure in Arlington arguing the contrary), to wrong evidentiary determinations, to another completely nonsensical finding on internal relocation.
In other words, this was a “rubber stamp” by BIA “judges” of a staff attorney’s writeup with canned “any reason to deny” language. It was not a fair and impartial adjudication by an “expert” group of appellate judges.
Far from it. If a student had turned this in as an exam answer to a hypothetical case on my Georgetown Law final exam, it would have received “zero credit.” So, how is it “OK” to have a system where individuals in what are supposed to be senior judicial positions, requiring great expertise in immigration, asylum, and human rights law, perform in a manner that would have been deemed unacceptable for L2s and L3s?
It isn’t; and it’s up to the Article III Courts and Congress to get some backbone and some integrity and put an end to this travesty. Yeah, this is “only one case.” But, it involves a human life. Cameroon is a horrible country; credible Cameroonian asylum cases were routinely granted in the Arlington Immigration Court, normally without appeal by ICE.
And for every case where a respondent is lucky enough to get a “Court of Appeals intervention,” dozens of individuals, many without lawyers or the faintest knowledge of what’s happening, are “railroaded” through this fundamentally unfair and constitutionally defective system. This, rather than the bogus wall, or an influx of desperate refugee families seeking asylum, is our true “national emergency” involving immigration: The disdain by our current Administration for the rule of law, human rights, judicial quality, simple human decency, and Due Process of Law under our Constitution!
Congrats to Attorney Ron Richey, an “Arlington Immigration Court regular,” who appeared before me many times, for fighting for due process and justice in another jurisdiction. You are an inspiration to all of us in the “New Due Process Army!”
Kate Morrissey writes in the San Diego Union-Tribune:
Constantin Bakala and his family have survived kidnapping, torture, rape, poison and a shipwreck.
Now, faced with the complexities of the U.S. immigration system, they may be on the verge of defeat.
Bakala, 48, and his family fled their home in the Democratic Republic of Congo in late 2016 after they were targeted for Bakala’s participation in an opposition party that promoted democracy in the country, according to his wife.
After traveling through more than 10 countries, the family arrived at the San Ysidro Port of Entry in November 2017. Bakala was separated from his wife and seven children and sent to an immigration detention center in Georgia while they were released to live in the San Diego area, a common practice at the time. He hasn’t seen them since.
Because they were separated physically, their cases were also handled separately in immigration court. Since the federal government prioritizes detained cases, Bakala’s finished before the family’s even began, according to their attorney.
Unable to find an attorney to represent him at the detention center in rural Georgia and with little money to even pay for phone calls to the outside world to try to get help, Bakala faced by himself an immigration court known for being tough on asylum seekers. Judge Michael Baird, who heard his case, granted 11 of the 152 asylum cases that he decided between fiscal 2013 and 2018, records show.
Bakala lost.
He tried to appeal the case by himself and was denied that as well, according to court records. Now the family, with the help of a San Diego church, has found an attorney to help him, but it may be too late.
He is convinced that if he returns to the Democratic Republic of Congo, he will be murdered by his own government.
Bakala’s party membership card shows he was part of the Rassemblement des Congolais Démocrates et Nationalistes, or RCDN, which opposed former president Joseph Kabila’s maneuvers to stay in power past his term limit. When Bakala wasn’t at his job at the Ministry of Health, he worked with the party’s youth and advised them on how to demonstrate peacefully against the ruling party, his wife Annie Bwetu Kapongo said.
Bwetu Kapongo tells their story slowly, haltingly, sometimes with painful detail and sometimes in circles, a symptom of the trauma she carries from what happened.
She remembers when her husband first told her about getting threatened, and she remembers the day he went missing in 2016.
When she went to the police to ask for help finding him, she was locked in a room that reeked of urine. Later, three policemen came in, beat her and raped her. She tried to stop them and pointed out that she was pregnant.
The men didn’t care, she said. She ended up losing the baby.
When she was eventually able to return home, her husband was still missing. The two stores she owned, one that sold fish and one that sold cakes and juice, were broken into and robbed by people looking for her husband, who had by this point escaped where he had been imprisoned and tortured, according to his attorney.
One night, Bwetu Kapongo woke up to the family dog’s aggressive barking before hearing it abruptly stop. They found the dog dead the next day.
Another night, she and the children got sick. Their heads were spinning, and they were vomiting. Eventually, they found a tool someone had used to release poison into the house, she said.
Finally, one night she heard a knock on her window. It was her husband.
Aided by people he’d brought to help the family, they scooped the children out of their beds while they were sleeping and fled in a boat down a river to the Republic of Congo, where the people helping them paid for their hotel, Bwetu Kapongo said.
They waited a couple of months there until they had travel documents to get to Brazil and left in early 2017 to begin a grueling journey to the U.S. border.
“We came because America respects the law, and they know how to protect people,” Bwetu Kapongo said through a translator.
In each of the countries they passed through, officials told them that they could not stay, she added. They were sent from Panama back to Colombia when they tried to get across the border by boat and ended up having to make the grueling 6- to 7-day walk through the jungle to Costa Rica.
In Costa Rica, they found a boat that would take them to Nicaragua.
After they’d been on it for about 45 minutes, Bwetu Kapongo heard shots fired at them. She told her children to lay down. Then, the boat broke, she said, and it began to sink.All of a sudden, her youngest child Joseph, who is now 5, was no longer in her arms.
She started to drown.
“Is this a nightmare? Is this real? Is this happening?” she recalled asking the darkness that surrounded her.
She felt other bodies in the water, hands pushing her head down as they tried desperately to reach the surface. She felt someone clutch her neck. It was David, her 12-year-old son.
When a rescue boat pulled her to safety, she found her 17-year-old daughter Marie Louise. Bwetu Kapongo began to pray, crying out the names of her five other children and asking God to find them. Her husband was soon rescued from the water and prayed with her.
When rescuers noticed bubbles moving in the water, they found Joseph along with 8-year-old Moses and 10-year-old Augustine clinging to a rope and pulled them to safety.
Emmanuel, her 15-year-old son, had been carried further away into the water with 14-year-old Daniel. They found a life preserver that had been thrown into the water and clung to it, bringing with them two girls from another family who were also nearly drowning.
When Emmanuel used the last of his strength to cry out, rescuers found them, Bwetu Kapongo said. Two people who had been on the boat died, one adult and one child.
Though the family survived, all of the documents and photos that could have been used as evidence were lost in the water.
They would have to journey by boat two more times between Costa Rica and Nicaragua before successfully making it the rest of the way up to the U.S. border.
Bwetu Kapongo said she expected to receive “protection and respect” when they arrived. Instead, her husband was quickly taken away.
It is only when she reaches this point in the story that she begins to cry.
She wouldn’t hear from him for about a month. He told her that he didn’t know how to find her, that it took that long for officials to give him information about where she was.
The family’s attorney Julie Hartlé said the family’s story is “horrific but not unusual.” Other attorneys she knows have had similar cases.
“This family meets every criteria. They were persecuted for being democracy activists, kidnapped and tortured by their own government,” Hartlé said. “It meets the exact definition of asylum for political persecution. It should’ve been straightforward. They were able to use the detention system against them.”
Bakala had to fill out his asylum application in English, a language he does not speak well. Though he told the judge verbally about three times he was taken by police, how he was beaten, interrogated and held without food, he only put information about one of the incidents in his application.
“That sounds like a pretty bad event,” the judge said in his ruling of one of the incidents Bakala described. “Unfortunately, it is never mentioned anywhere in the respondent’s application for asylum.”
The evidence that Bakala was able to gather and present — including a notice from his political party about his disappearance, another notice that the ruling party was looking for him, his voter ID card and party membership card — was not translated into English, so the judge said he couldn’t consider it, according to court records. He found Bakala’s story not credible.
The Executive Office for Immigration Review said it does not comment on judges’ decisions.
Neither Immigration and Customs Enforcement nor Customs and Border Protection were able to respond to request for comment in time for publication.
As immigration officials prepared to deport Bakala, attorneys filed emergency motions to temporarily keep him in the U.S. to try to reopen his case with new evidence. Last week, the 11th Circuit granted him a stay until Friday.
In the meantime, members of the church helping the family here in San Diego are planning a protest outside of the federal building at noon on Thursday in support of Bakala.
Bwetu Kapongo said the most important thing for her is protection for her children.
“He sacrificed his life to protect his kids,” she said in French. “If we hadn’t done what we did, they would already be dead.”
Beyond that, she wishes for her husband’s return. She tries to hide her exhaustion and her tears from her children, but she doesn’t think she can raise them alone.
“After the mountain I went through, I’ve got no more strength,” she said.
******************************************
So, how might a real judge, one committed to guaranteeing fundamental fairness, due process, and properly applying the generous dictates of U.S. asylum law have approached this case?
First, Bakala comes from a country, the Democratic Republic of Congo (“DRC”) which is one of the most repressive regimes in the world, where persecution is rampant. For example, the DRC received a score of 17 on a scale of 100 in the latest Freedom House freedom rankings.
Here’s a quote from the most recent U.S. State Department Country Report summarizing the daily horrors of life in the DRC:
The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.
Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.
Therefore, knowing that Bakala comes from a notorious “refugee producing country,” the Immigration Judge should have insisted as a matter of due process and fundamental fairness that the case be continued until the respondent could get the assistance of a competent lawyer to fully and fairly present a case for saving his life.
Asylum law has been made intentionally and unnecessarily complicated by a politicized system run with a strong enforcement bias; statistics, as well as experience, show that unrepresented individuals have virtually no realistic chance of success, particularly in a system run by an Administration clearly prejudiced against them. Human lives become mere “case completions.”
Second, Bakala’s wife also appears to have a strong asylum claim in her own right. If granted, he could also have been protected as a derivative asylee under his wife’s application. Therefore, unless ICE were basically willing to stipulate to an asylum grant, proceeding with the cases separately was presumptively unfair. A judge committed to fairness, would have “pushed” the ICE Counsel on why this family’s cases were not being heard together.
Third, to justify an adverse credibility finding under the statute and BIA precedents, the judge’s ruling must demonstrate significant discrepancies or omissions, provide cogent reasoning, and carefully consider and give reasons for not accepting the respondent’s explanations for any problems. This judge’s ruling appears to have “flunked” all of those tests. The idea that a detained unrepresented individual’s omission of an event from the asylum application is a cogent basis for finding him not credible is facially absurd. That’s particularly true where the respondent is not a native English speaker and is held in detention where his ability to prepare, or, indeed, to even understand what is required for a successful asylum application, is intentionally impaired.
Moreover, a simple reference to the most current State Department Country Report (quoted above) would have shown the judge that the respondent’s testimony was highly plausible in light of known country conditions. Indeed, persecution, torture, and abuse are daily occurrences in the DRC.
Additionally, the judge violated due process by requiring a detained individual to get translations of key corroborating documents. It’s simply not possible in most cases. How is a detained unrepresented individual going to find a qualified foreign language translator in the Stewart prison? A judge doing his job fairly would have asked the respondent to summarize the documents and accepted a “proffer;” or he could have had the documents read into the record by the interpreter.
For the purpose of a detained adjudication, I would have assumed that the documents were what the respondent said they were and acted accordingly. If the DHS wanted to challenge the decision, they could have the documents translated. Just one of many problems in purporting to conduct “due process hearings:” in place where due process often can’t really be achieved.
Then, the “rubber stamp” BIA (a/k/a the “Falls Church Adjudication Center”) also “tanked” by not applying its own precedents which should have resulted in a finding that the Immigration Judge’s specious reasoning was “clearly erroneous.”
I heard a number of asylum cases from the DRC during my time on the bench in Arlington. I doubt that I denied any except for individuals who were aggravated felons, engaged in persecution of others, or had provided material support to a terrorist organization. Even those who failed to establish asylum eligibility often had valid claims for protection under the Convention Against Torture, given the prevalence of government sponsored or endorsed torture in the DRC. Most DRC asylum cases in Arlington were well-represented, well-documented, and either largely unopposed or not appealed by ICE.
Even without a lawyer, it appears that Bakala’s testimony was credible under the circumstances and that he suffered harm that should have warranted a grant of asylum on account of political opinion based on known country conditions. At one time in Arlington, a case like this with representation probably could have been granted largely by stipulation, with brief testimony, on a “short docket.”
That’s how cases can “move” on the Immigration Court’s crowded dockets without compromising due process or fundamental fairness. Instead, this Administration encourages a biased “haste makes waste” approach, issues statements of strong prejudgment against asylum seekers and their attorneys, motivates judges to cut corners, and enables judges to look for “any reason” to deny asylum and crank out final orders of removal. It’s a “cavalcade of worst practices!”
While some judges courageously resist and insist on “doing the right thing,” others choose or feel compelled to “go along to get along” with the Administration’s unethical (and incompetent) administration of these so-called “courts.” Indeed, today’s Immigration Judges are not even properly trained on how to correctly adjudicate and grant asylum under the generous standards mandated by the law, the Supreme Court, and even the BIA’s (seldom followed) precedent supposedly implementing generous standards following the Supreme Court’s admonishment. It’s an exercise in extreme intellectual dishonesty.
Allowing serious, “life or death” cases to be tried in places like Stewart, notorious for being the home of unsympathetic judges and an inherently coercive atmosphere, intentionally located in and out-of-the-way place where it is hard for attorneys to participate, is a stain on America.
The DOJ has abandoned any semblance of running its “wholly owned courts” in a fair and constitutional manner. Congress, ultimately responsible for creating and countenancing this mess, has long abdicated its duty to establish an independent system that complies with Due Process.
Article III Judges also have been largely complicit in allowing this pathetic imitation of a “court” system to continue operating in a fundamentally unfair and unreasonable manner and spewing forth skewed, unjust, often unlawful, and sometimes deadly results. It’s a national disgrace!
Sadly, the individuals being abused by the Immigration Court system are some of the weakest and most vulnerable among us. That’s what allows such systematic injustice to operate “largely below the radar screen.” However, the individuals who are participating in and enabling such outrageous contempt for the rule of law and human dignity, and thereby violating their oaths of Federal office, will not escape the judgment of history.
Fixing this unfair and intentionally broken system is well within our power as a country. It could be done for much less than $5.7 billion. Put an end to the “New American Gulag” and the “theater of the absurd” masquerading as a “court” that operates within its bowels!
IN WASHINGTON D.C. —
