TRUMP’S LATEST ATTACK ON ASYLUM PROMISES MORE “MALICIOUS INCOMPETENCE” — Doubles Down On “Proven Failures” As New Poll Shows Americans Reject Harsher Approach To Asylum Law By 2-1 Margin!

https://www.huffpost.com/entry/trump-asylum-memo_n_5cc7c8f5e4b07c9a4ce82527

Dominique Mosbergen reports for HuffPost:

Declaring the U.S. asylum system to be “in crisis,” President Donald Trump directed immigration officials on Monday night to introduce a slew of tough new rules for migrants seeking humanitarian protection in the United States.

The measures, outlined in a presidential memorandum, include the introduction of a fee for asylum applications and banning asylum seekers who’ve entered the U.S. illegally from receiving work permits. The memo also calls for the adjudication of asylum applications within 180 days.

The new rules, Trump said, are aimed at safeguarding “our system against rampant abuse of our asylum process.”

. . . .

It currently costs nothing for someone to file for asylum in the United States and immigration experts have warned that even a small fee could prove to be an impossible burden for some migrants seeking refuge. As The Washington Post noted, a vast majority of countries do not impose a fee on asylum claims.

“The majority of people coming to the United States seeking asylum are coming with little more than the shirts on their back,” Victoria Neilson, a former official at U.S. Citizenship and Immigration Services, told Reuters.

Trump, who’s repeatedly lambasted migrants for exploiting what he says are legal loopholes in the asylum system, also ordered asylum seekers who’ve entered the country illegally to be banned from obtaining work authorization “before any applicable application for relief or protection from removal has been granted.” Currently, asylum seekers who’ve entered the U.S. both legally and illegally are allowed to work while their claims are pending.

“There’s a reason that we give people work permits while they are waiting for asylum, so that they can support themselves and don’t have to be depending on government assistance during that time,” Michelle Brané of the Women’s Refugee Commission told The New York Times.

. . . .

The memo also demands that all asylum applications, save for those involving “exceptional circumstances,” are adjudicated in immigration court within 180 days of filing.

As the Post noted, U.S. law already dictates that asylum cases are adjudicated within that time ― but due to an overwhelming number of cases and inadequate resources, asylum seekers can often wait years before their claims are processed.

“The provision to process cases in 180 days has been on the books for over two decades,” Ashley Tabaddor, president of the immigration judges’ union, told the paper. “The problem is that we have never been given adequate resources to adjudicate those claims in a timely fashion.”

Trump has directed Attorney General William Barr and Acting Homeland Security Secretary Kevin McAleenan to introduce the new asylum regulations within 90 days. Immigration advocates, however, are expected to challenge the measures in court.

The administration is already involved in several court battles over earlier changes to U.S. asylum rules, including the so-called “remain in Mexico” policy requiring some asylum seekers to return to Mexico to await court hearings.

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QUICK TAKES:

  • Regulatory Incompetence.  Changing legal regulations requires 1) notice and an opportunity for public comment; and 2) a rational legal explanation for the proposed changes. So far, the Trump Administration has shown little ability for either. Indeed both their “preferred method” of policy change by “Executive Action” (e.g., DACA) and past attempts to change regulations (e.g., barring asylum for illegal entrants) have often ended up blocked or modified by the courts.
  • Time Limits Don’t Work. The current law, INA s. 208(d)(5)(A)(iii), already provides a statutory 180 day limit for asylum adjudications. But it has never been achievable in practice for various reasons including due process, chronic understaffing of Immigration Courts, and unavailability of private counsel. It might be possible to develop a system that could fairly process the vast majority of asylum claims through the Immigration Judge level within 180 days. But, that would require three things that an Administration committed to “malicious incompetence” has rejected: 1) clearing most of the 1.3 million backlogged cases off Immigration Court dockets through aggressive use of “prosecutorial discretion” (“PD”) as a first step toward a much-needed legalization program; 2) working cooperatively with NGOs, states, and municipalities to provide universal representation of asylum seekers; and 3) granting many more asylum cases at the Asylum Office and Immigration Court level.
  • The Administration Doesn’t Control Article III Courts (Yet). As the Immigration Courts and the BIA become more biased against asylum seekers, more individuals will seek review by the Article III Courts. The number of cases in the Article IIIs, who operate largely beyond the Administration’s control, is likely to grow exponentially. “Fake timetables” (on top of the mindless “deportation quotas” already in effect for Immigration “Judges”) result in “haste makes waste” poor quality at EOIR that, in turn, leads to lots of remands from the Article IIIs, thereby further clogging the Administrative system.
  • “Asylum Only” Hearings Aren’t Substantively Different From “Full” Removal Hearings. Trump reportedly would like to limit asylum seekers to “Asylum Only” hearings where asylum, withholding of removal, and relief under the Convention Against Torture are the only forms of relief available. But, few recently arrived asylum seekers apply for other forms of relief “right off the bat.” The major difference is often eligibility for bond in a “full removal hearing.” But, AG Barr has already acted to make most who pass “credible fear” ineligible for bond in his recent precedent Matter of M-S-, overruling 15 years of contrary BIA law originating in the Bush II Administration. The due process limitations on indefinite detention of asylum seekers will be fought out in the Article IIIs regardless of whether the Administration uses “Asylum Only Proceedings” or “Full Removal Proceedings.” And, so far, the Administration has consistently lost on the Constitutional issue in the lower Federal Courts.
  • Article IIIs Have Already Slammed This Administration’s Prior Attempts To Illegally Misconstrue Asylum Law To Reduce The Number Of Positive “Credible Fear” Determinations. Sessions & Nielsen already unsuccessfully tried to game the credible fear system against legitimate asylum seekers. They were strongly rebuked by U,S. District Judge Emmet Sullivan (DC) in Grace v. Whitaker. Judge Sullivan barred Immigration Judges from using most of Session’s erroneous Matter of A-B- precedent in “credible fear reviews.” He also required USCIS to rewrite its “Credible Fear” instructions to restore the generous intent of the law. It’s likely that what Trump is seeking to do will run afoul of Judge Sullivan’s order. Sullivan isn’t afraid to hold Cabinet officials accountable. So, while Trump himself might be beyond the court’s reach, “Trump‘s Chumps” McAleenan and Barr might want to have their jail bags packed and check their personal liability insurance before accepting Trump’s invitation to violate the law. Also, the Administration’s actual and threatened misuse of “expedited removal” in an attempt to implement a “lawless credible fear” policy has inspired the Ninth Circuit to recognize a right to appeal to the Article IIIs, even in expedited removal. THURAISSIGIAM v. USDHS, https://immigrationcourtside.com/2019/03/07/9th-cir-says-statute-barring-meaningful-judicial-review-of-expedited-removal-process-violates-constitutions-suspension-clause-throws-monkey-wrench-into-administra/ In other words, the field that Trump is mindlessly ordering McAleenan and Barr to plow has already been largely ruled “off limits” by the Article IIIs.
  • While Imposing Fees For Asylum Applications Is Undoubtedly Cruel, Unnecessary, & Unprecedented, It Won’t Be A Long-Term Deterrent. By misusing “metering” to make it difficult or impossible to apply for asylum at legal ports of entry the Administration already has increased smuggling fees, made routes more dangerous for asylum seekers, and predictably increased the number of illegal entries to apply for asylum; but, it hasn’t “deterred” asylum seekers. It just shifted the traffic from legal ports of entry where it could have been more easily controlled to other places on the border, where it’s harder to control. Stupid? Yeah, of course. Basically, the Trump Administration now wants to get in on the financial bonanza it has created for human smugglers by charging its own version of illicit fees. While cruel and punitive, it’s unlikely to have much impact on the flow of refugees.
  • Denial Of Work Authorization Will Create Hardship, Without Deterrence, & Actually Hurt Our Economy. Under current law, asylum seekers can’t get work authorization for at least 180 days. If the Administration really were able to fairly process asylum applications in that period, there actually wouldn’t be much need for work authorization. Also, work authorization doesn’t apply to those detained for asylum hearings and most juveniles. Assuming that legitimate asylum applicants continue to get released and shunted into the backlogged Immigration Court system, denial of work authorization will deprive them of the opportunity to use their (usually ample) skills to be self-supporting and contribute to our economy, regardless of whether they ultimately are granted asylum. Many such folks will now be forced into the “underground economy” where they are more likely to be both underemployed and exploited by unscrupulous employers. Trump is turning a “win-win” into a “lose-lose.” But, it’s unlikely to deter those fleeing for their lives.
  • Eventually, Trump’s “Malicious Incompetence Approach” Might Convince Asylum Seekers That Our Legal System Is A Cruel Farce That Must Be Avoided. Smugglers will simply take refugees into the interior of the U.S. for higher fees. They will stop turning themselves in to use a bogus legal system. Some will die; a few will get caught and removed; but, the chances of entering illegally and losing oneself in the U.S. for as long as one wants are probably much better than the chances of getting legal asylum in Trump’s increasingly bogus, biased, and dishonest system. 
  • Two Things Are For Certain: 1) Desperate People Will Continue To Come No Matter What Trump Does On This End; and 2) Once Trump Destroys The Legal Asylum & Immigration Systems, They Won’t Easily Be Rebuilt. The result will be a permanent “immigration underground/black market.” That’s a “lose-lose” that will be horrible for migrants, but even worse for America’s future.

Coming up:  A New Washington Post/ABC Poll Shows Little Public Support For Trump’s Harsher Asylum Policies.

PWS

04-30-19

READ MY SPEECH TO THE LOUISIANA STATE BAR IMMIGRATION CONFERENCE IN NEW ORLEANS ON APRIL 26, 2019 — “GOOD LITIGATING IN A BAD SYSTEM”

GOOD LITIGATING IN A BAD SYSTEM

BY

PAUL WICKHAM SCHMIDT

UNITED STATES IMMIGRATION JUDGE (RETIRED)

LOUISIANA STATE BAR IMMIGRATON CONFERENCE

NEW ORLEANS, LA

April 26, 2019

I.

Good afternoon. Thanks so much for inviting me and coming out to listen. Most of all, thank you for what you are doing to save our legal system and preserve our democracy.  For, nothing less is at issue here.

Jeremy talked this morning about the supreme satisfaction of seeing smug, uncooperative, unresponsive, scofflaw bureaucrats hauled into court and forced to follow the law. There isn’t much a bureaucrat, particularly one working in this particular Administration, fears more than the law. 

In my life, the comparable feeling of satisfaction was when a Court of Appeals reversed my wrong-headed colleagues at the BIA on the basis of one of my frequent dissents or having a Court of Appeals reverse the BIA for incorrectly reversing my decision as an Immigration Judge granting relief.

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare. 

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mocks competent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting. 

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My good friend and colleague Dr. Triche gave you the “scholarly side” of immigration appeals.  Now, I’m going to take you over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process, fundamental fairness, human decency and particularly asylum seekers, women, and children in  today’s “weaponized”  Immigration Courts.

I’m going to tell you twelve things that you and your colleagues need to do to win the war against the forces of darkness and anti-Constitutional bias who have seized control of our justice system and aim to destroy it.

I, of course, hold harmless Dr. Triche, the Louisiana State Bar, Woody’s law firm, all of you, and anyone else of any importance whatsoever for the views I express this afternoon. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call!

II.

First, get everyone represented. That’s why it’s so important that you are all here today. Next time, I hope this meeting will be in the Mercedes-Benz Superdome! 

Today’s “deportation railroad” operates on the assumption that it will be able to ramp up “numbers,” boost “productivity,” and promote bad law and worst practices by shooting unrepresented individuals “like fish in a barrel.” We know that representation increases success – sometimes by as much as 14 times.

Second, remember that there still are “pockets of due process and fundamental fairness” out there – pockets of resistance, if you will. These are Immigration Judges and sometimes ICE Assistant Chief Counsel who are courageous and honest enough to insist on a properly fair and generous interpretation of asylum law, procedural due process, reasoned decisions, and impartial judging. This is in the overall context of a DOJ that encourages and fosters overt anti-asylum bias, prejudgment, unprofessional treatment of lawyers, bullying of respondents, and predetermined results as part of a concerted effort to both discourage representation and “deter” bona fide asylum seekers from applying.

It’s critically important that you provide these “good guy” judges and counsel with the detailed, plausible, and consistent testimony, strong corroborating records, and cogent legal arguments to allow them to do the right thing while being “covered” in the case of likely attacks by “higher ups” for following the law, treating applicants and their representatives with dignity, and often granting asylum. 

Third, if you are relying on “particular social groups” (“PSGs”) state them clearly on the record at the outset to satisfy BIA requirements. The BIA will not allow you to develop new social groups on appeal — even where they might be obvious from the record below.

Fourth, insure that PSGs meet the BIA’s three criteria: 1) immutable or fundamental to identity; 2) particularized; and 3) socially visible.  Where applicable, don’t shy away from inclusive groups that clearly meet the BIA’s criteria like “women in Guatemala” or “gay men in Honduras.” 

For too long, advocates have been “going along” with a “gradualist approach.” That favored limited, highly particularized, social groups designed to ease and appease the Government’s often bogus “floodgates fears” and thereby to win government cooperation in a gradual, positive, and progressive development of the asylum law consistent with Matter of Acosta, the BIA’s seminal precedent on PSGs. 

Jeff Sessions clearly showed in Matter of A-B- why cooperation with the Government in a “captive” court system, without ingrained values or a strong basis of intellectual honesty, is too risky. It’s time to vindicate the full coverage of gender-based persecution under the refugee definition.

Fifth, argue politics where applicable. The BIA and some appellate courts have willfully misconstrued the reality of conditions in the Northern Triangle. Gangs in the Northern Triangle aren’t a bunch of neighborhood delinquents hanging out on the local street corner pestering kids and stealing lunch pails. No, they are powerful armed forces that have infiltrated and compromised governments, in many areas operating as “de facto governments.” 

For Pete’s sake, in El Salvador gangs are reportedly the  largest single employer. They have actually negotiated now-failed “peace accords” with the government. Of course, in those situations, quite contrary to disingenuous statements in BIA precedents, opposition and resistance to gangs is considered to be a “political act” that will be harshly punished. 

Don’t rely just on mealy-mouthed State Department Country Reports that have been compromised by this Administration’s political agenda.  Attack the reliability of State Department Reports with real experts and more reliable resources. Insist that reality be part of the record of proceedings no matter how much individual Immigration Judges or the BIA might want to ignore it. 

Sixth, document the systematic truncations of due process in Immigration Court.  These days, denial of merits hearings; arbitrary limits on testimony, evidence, and arguments to meet inappropriate production quotas; limitations on client access; capricious denials of continuances; frequent disparate treatment when EOIR and DHS shuffle and reprioritize dockets for no good reason; lack of notice; use of idiotic form decisions and woefully inadequate, analysis-free oral decisions as a substitute for reasoned analysis; and increased use of “summary affirmances” rubber stamping clearly defective Immigration Judge decisions are commonplace. It’s “haste makes waste to the Nth degree” imposed by the DOJ politicos. Expose these travesties and abuses! Make the record for review by “real” Article III Courts.

Seventh, limit to its facts Session’s outrageous attempt to turn back asylum law decades in Matter of A-B-. At the end of 30 pages of disingenuous “babble” and erroneous legal analysis, Sessions actually resolves nothing more than to vacate Matter of A-R-C-G-. It’s almost all dicta; vicious and misogynistic dicta, but dicta nevertheless. 

Read Judge Emmet Sullivan’s outstanding opinion in Grace v. Whitaker cataloguing Sessions’s many errors and misrepresentations. The result in the BIA’s A-R-C-G- was clearly correct on the facts presented – so much so that it was uncontested by either party! Yes, some judges follow the erroneous dictum even deny hearings. Object, make your record, appeal, and hold these wrong-headed “jurists” accountable.

It’s frustrating to have to establish A-R-C-G-‘s correctness again and again for no good reason, but it’s what we have to do. It also won’t hurt to point out to the Article III’s how Sessions’s unjustified and biased actions have actually made the hearing system more unnecessarily complicated and inhibited fair, consistent, and efficient processing of asylum grants. 

Eighth, apply for bond notwithstanding Barr’s unconstitutional attempt in Matter of M-S- to eliminate bond for those who have passed the credible fear process. Take the Fifth Amendment constitutional issue to the U.S. District Courts on habeas every time. Let them see firsthand what passes for “due process” and “justice” in today’s Immigration Courts. 

The Ninth Circuit and several U.S. District Courts have already indicated that Government’s implementation of indefinite detention can’t pass constitutional muster under the Fifth Amendment. Keep the defeats coming for the DOJ and maintain the focus of the Article IIIs on how the DOJ’s arrogant and wasteful maladministration of the U.S. Immigration Courts is screwing up the entire U.S. justice system.

Ninth, if you lose below, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed me as one of its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will. 

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, as we heard earlier, many “real” Federal Judges don’t like immigration cases. “Tough noogies” — that’s their job! 

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law. 

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Tenth, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases. 

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system. 

Their unethical participation should be a basis for invalidating their precedents.  In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Eleventh, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts.  This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission. 

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confronted with their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Twelfth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment. 

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.” 

III.

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart                                                                                                                                                                                                                                                                                                                                                                                                                                                                            it and to restore our precious Constitutional protections we must: 1) get everyone represented; 2) nourish the “pockets of due process;” 3) clearly define social groups; 4) use the BIA’s three-part test for defining PSGs; 5) argue politics;  6) document systematic truncations of due process; 7) limit Matter of A-B-; 8) apply for bonds; 9) take appeals; 10) challenge the  precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process;  11) make the historical record; and 12)  fight “Dred Scottification.”   

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.”

The antidote to “malicious incompetence” is “righteous competence.” Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration will drive the Immigration Courts over the edge.  

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.” 

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests. 

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(04-27-19)

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PWS

04-28-19                                                                                                                                                                      

DHS KAKISTOCRACY RIPS OFF VULNERABLE IMMIGRANTS AND THEIR FAMILIES!

https://www.washingtonpost.com/immigration/ice-is-holding-204-million-in-bond-money-and-some-immigrants-might-never-get-it-back/2019/04/26/dcaa69a0-5709-11e9-9136-f8e636f1f6df_story.html?fbclid=IwAR3vw-xzEXl2SSo2e-F0_kT54OSpZcckjBQz1WK26d2OBnsy0Rv6AADtniw&utm_term=.3a3765b59dfc

Meagan Flynn reports for WashPost:

U.S. Immigration and Customs Enforcement is holding on to more than $200 million in bond money that belongs to immigrants who have been in the agency’s custody, cash that has yet to be returned to thousands of immigrant families or the U.S. citizens who bailed them out, according to data obtained through open records requests.

The unreturned bond money stood at $204 million as of July 31, 2018, according to the data, which immigration law clinics at Stanford University and the University of California at Davis obtained and shared exclusively with The Washington Post. The pot of immigrant bond money grew by $57.3 million between September 2014 and July 2018, the data shows.

More than 18,000 bond payments went unclaimed in that four-year period, according to the data.

Though the trust fund — which the Treasury Department maintains — cannot be used for any other purpose, getting the money back to immigrants and their friends and families has proved a difficult and lengthy process. ICE officials said the agency makes multiple attempts to reach the people who posted the bond, but paperwork and checks mailed to them sometimes are undeliverable or receive no response, and it can be impossible to find the people if they moved out of the country. Those who do submit claims, ICE said, receive their funds within a month.

ICE did not provide data on average wait times to claim the money, and several lawyers and immigrants told The Post they have in some cases waited a year or longer after submitting for reimbursement.

Invisible walls: The lives altered by Trump’s crackdown on immigration

Numerous immigration attorneys said the system for reclaiming the funds is mystifying and nearly impossible to navigate without a lawyer or English-language proficiency, and some who pay the bonds are unlikely to see the money again. As bond amounts remain on the rise, lawyers said thousands of people are putting their life savings in ICE’s hands to secure an immigrant’s temporary freedom without any idea of when or if they’ll see the money again. Many immigrants say it takes far longer than a month to reclaim their funds.

“The toll on a poor family having to pay thousands of dollars in bond can’t be overstated,” said Jayashri Srikantiah, director of Stanford’s Immigrants’ Rights Clinic. “Clearly, something is breaking down when there are hundreds of millions of dollars sitting in an account that belongs to those immigrant families. If nothing else is clear, that is clear.”

Srikantiah and Holly S. Cooper, co-director of UC Davis’s Immigration Law Clinic, said they intend to push for congressional oversight of ICE’s bond system. They said the amassing of bond money indicates a serious problem and could amount to a massive theft from people who can least afford it.

Marco Antonio Torres Rojas, a father of three from Mexico, won his immigration case in August, but it took roughly seven months for ICE to return the $25,000 bond his family and friends paid to gain his release — seven years ago.

When he was detained in 2012 — for overstaying an H-2B work visa — an immigration attorney assured his family that paying the $25,000 bond would be the only way to stave off deportation. But for Rojas, a landscaper and snowplow driver in Minnesota, the sum appeared impossible. He and his wife had just a few thousand dollars in savings.

“We felt a sense of desperation,” Rojas said.


A Guatemalan migrant and his 10-year-old son look at the Miami cityscape outside an immigration courthouse in January. Some immigrants who are required to pay bond have to make difficult decisions about posting the cash payments, knowing they might not see the money back for years. (Brynn Anderson/AP)
Pay legal fees, or bond fees?

While criminal defendants typically can pay a bondsman 10 percent of the set bail amount to gain release, in the immigration system about 90 percent of bonds require cash for the whole amount upfront.

ICE initially sets bonds on a “case-by-case basis,” the agency said, though not everyone is eligible for bond or release.

For those who are eligible, bonds have been steadily rising since the second half of the Obama administration, after an influx of Central American immigrants. The average bond set by a judge was $3,000 to $5,000 for years, but it rose to $8,000 in fiscal year 2016, according to data from the Executive Office of Immigration Review. Bonds have remained at that level or slightly higher into the first months of fiscal year 2019.

“I hear from people who call me asking, ‘Should I use the money to pay legal fees or pay the bond fees?’ ” Cooper said. “ ‘I only have one truck. If I sell it, it’s $5,000.’ ”

Once the money is raised — often from numerous people in each case — only a U.S. citizen or legal permanent resident can post the bond. Because many immigrants don’t have a close relative who fits the definition, they sometimes turn to acquaintances or neighbors, said Michelle N. Mendez, an immigration attorney at the Catholic Legal Immigration Network in Silver Spring, Md. That person, according to ICE policies, is the only one who will ever get a copy of the bond paperwork.

Mendez said many immigrants don’t know that once the bond is posted, only the person who posted the bond can get it back.

The person who posted the bond money might move across the country or even out of the country; they might lose the original paperwork required to reclaim the money back, creating additional hurdles; the obligor might die.

Gloria Contreras Edin, an immigration attorney in Minnesota, said she had one undocumented client whose obligor was on the brink of dying of cancer. Before the man died, her client wheeled him into her office so he could sign over the bond responsibilities to someone else. Her client, Anibal El Verengue, a Guatemalan who lives in Minnesota and was ordered removed in 2015 for entering the country illegally, said he would not have known to do this if he did not have an attorney to advise him.

“One friend who I owe money won’t even speak to me, because he doesn’t trust me anymore,” El Verengue said, whose application for asylum is pending.


María Sosa washes dishes in her apartment in the Panorama City neighborhood of Los Angeles. Her husband won his immigration case in October, and it took five months to get his bond payment back from the federal government. (Ivan Kashinsky for The Washington Post)
Money just sits there

Mendez said she discovered how dire the problem was in 2009, two years after a well-publicized immigration raid at a Baltimore 7-Eleven resulted in numerous deportations. When Mendez checked in on some of the families of the deported men, she discovered they were living in poverty.

“I wanted to make sure that when the breadwinner got deported, the family would have some money,” Mendez said. “Those were the cases where I started to think: How do we get this money back? Nobody really knew . . . At that point, they’re really so far removed from the bond posting — thinking, ‘Oh well. I lost my case. I’m not entitled to anything’ — that they just let it be.”

“ICE does not notify the alien for whom the bond was executed, because its contract is with the obligor,” ICE said in a statement.

ICE makes three attempts to locate the person, but if the person who posted the bond did not file paperwork indicating a change of address, it might not be possible to find them.

And even those who follow the procedures said the process is rife with delays.

María Sosa, a legal permanent resident in California, said her husband won his immigration case in October but that she did not receive a bond cancellation notice from ICE until January. Unable to speak English, she made numerous visits to an ICE office to understand what she needed to do to get her money back; she received it on March 29.

She said she and her husband could not afford to attend his funeral.

“The whole system is created in a way that doesn’t foster the accessibility to those funds,” Contreras Edin said. “And so many times the money is left and just sits there.”

ICE pays interest on bond money while unclaimed, up to one year. After that, the funds are transferred to the Treasury Department. The Treasury Department said it does not know what year the $204 million began accumulating. The U.S. government is not allowed to use the money unless immigrants fail to adhere to bond conditions and forfeit it, otherwise known as a bond breach.

Bonds can be breached for reasons such as failure to show up in court or failure to turn the immigrant over to authorities if ICE asks the obligor to do so. But there can also be mistakes. Mendez recalled a case in which ICE breached her client’s bond for failure to show up to be deported — but her client was still appealing the removal order, and ICE had apparently missed that information, according to 2015 correspondence with ICE she provided to The Post.

About $34.5 million in bonds are forfeited each year, money that ICE uses to defray detention and apprehension costs.

Advocates at Stanford and UC Davis argue that the arrangement creates a conflict of interest.

“They obviously have incentive to not exercise discretion favorably and to breach more bonds,” said Emily Child, who worked on the Stanford and UC Davis research with Cooper. “That money goes right back into their pockets.”

ICE said that all breach decisions can be appealed to the U.S. Citizenship and Immigration Service. When breaching bonds, agents consider whether the violation was an accident or intentional and whether the obligor or immigrant was acting in good faith, ICE said in a statement.

‘An incredible amount’

Rojas was getting nervous. It was March, and he had been waiting seven months for a check that would be addressed to his brother’s wife, the U.S. citizen who posted his bond.

He called his attorney, Contreras Edin, expressing his fear that something had fallen through the cracks. The lawyer’s office contacted ICE bond specialists. A few weeks later, the check arrived.

Cooper and Srikantiah said they believe that working with an attorney is crucial to recovering the bond money, and many immigrants and those who post the bonds don’t have lawyers or can’t afford one.

They argue that ICE’s systems are outdated and cumbersome, and they believe immigrants should receive copies of their bond paperwork in a language they can understand, something that could mitigate the possibility of fraud and ensure that those who pay bonds receive the money back when they are entitled to it.

“While something like $5,000 or $10,000 might not be a lot of money to the federal government, to an individual family that has pulled all of their money together in order to get a loved one out of detention, it’s an incredible amount,” Srikantiah said. “With detention growing at the rate it is, we think this is a really good time for Congress to provide some oversight and actually investigate why this is happening.”

***************************************

My favorite comment:

“So, we steal their children and their money.  How contemptible.”
Says it all!
PWS
04-28-19

“DUH” OF THE DAY: Barr Is A Trump Flunky — Leah Litman Reports @ Slate

https://slate.com/news-and-politics/2019/04/obstruction-case-william-barr-doj-donald-trump.html

Photo By: Kimberly April Photography www.kimberlyapril.com

Litman writes:

It took Attorney General William Barr only one week from the release of the Mueller report to bring obstruction of justice charges against two governmental officials for interfering in a federal investigation. But the charges have nothing to do with the special counsel’s investigation into Russian interference in the election or the possible obstruction of that investigation.

Although the obstruction charges DOJ filed are not related to the Mueller report, they underscore just how far the attorney general bent over backward to spin the report in the president’s favor and how partisan the Department of Justice has become. The disparities between the two cases highlight how the Department of Justice, under Barr’s leadership, has become nothing more than a political arm of the Trump administration, particularly in its handling of possible obstruction charges stemming from the Mueller report.

The indictment against Judge Shelley Richmond Joseph, a Massachusetts district court judge, and Officer Wesley MacGregor, a Massachusetts trial court officer, alleges that the officers interfered with an Immigration and Customs Enforcement proceeding by preventing ICE from arresting an individual who was arrested on state charges and attended an arraignment hearing in state court. During the state court proceeding, Joseph asked an ICE officer to wait outside the courtroom while the court conducted the arraignment hearing. Earlier in the day, the judge had requested more information about one of the state charges in the case (a fugitive charge) after the prosecutor said the state would not seek to detain the defendant on the other charge (a drug charge).

After recalling the case, the judge observed that ICE was in the courthouse. The prosecutor then informed the court that the state did not believe the defendant was the fugitive from Pennsylvania for whom there was an arrest warrant and therefore believed that the fugitive charge was an error, which would mean that the defendant would be free to leave. The defense attorney, however, noted that ICE was convinced otherwise and suggested they would likely take the client into custody. The defense attorney then suggested that “the best thing for us to do is to … release him … and hope that he can avoid ICE.”

At that point, the judge noted the other alternative was to recall the proceedings again the next day and asked “ICE is gonna get him?” before directing the clerk to go off the record. The recording was turned off for 52 seconds, and when it resumed, the prosecutor renewed the claim that the defendant was not the person with a Pennsylvania warrant out for his arrest and moved to dismiss the fugitive charge against him. Because the state had already stated it would not seek to detain the defendant on the drug charges, the defendant was released, and the trial court officer escorted him through the back door.

This evidence provided the basis for Barr’s Department of Justice to indict the state judge and state officer for obstruction of justice and conspiracy to obstruct justice. Yet all of the reasons Barr has previously cited for opposing an obstruction investigation against the president suggest the Department of Justice should not have brought obstruction charges against Joseph and MacGregor either.

For example, in June, Barr wrote a memo as a private citizen arguing that obstruction laws should not “reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution.” Yet that is exactly what the obstruction-of-justice charges against Joseph and MacGregor cover. State judges do not persist with criminal charges that the district attorney has dropped, and state law does not require judges to detain individuals on the drug charges that remained. It was therefore “facially legitimate” and within the “discretion” of the judge not to detain the individual based on the drug charge. The judge also has total control of her courtroom and can decide through which doors to instruct people to come and go. And the state judge’s motive shouldn’t matter to the analysis because under Barr’s theory of obstruction, government officials can’t be charged with obstruction “based solely on his subjective state of mind” for “simply exercising his discretion in a facially lawful way.”

Ultimately, the Justice Department’s indictment of Joseph and MacGregor is a reminder about how aggressively the federal government often reads the federal obstruction statute. For example, the indictment confirms that obstruction does not have to be particularly sophisticated or successful in order to constitute a crime—the trial court officer merely let the defendant out the back door, and the defendant was subsequently apprehended and now faces deportation.

It also demonstrates a contrast in the kind of evidence that often suffices to establish an obstruction-of-justice charge. In the case of Joseph and MacGregor, DOJ has some snippets of a courtroom conversation that indicated the judge wanted to do something she did not want publicly recorded and less than a minute without a recording. In the case of President Donald Trump and his associates, special counsel Robert Mueller compiled dozens of witnesses, contemporaneous notes, 10 separate incidents, 182 pages of a report, multiple instances of officials lying to investigators or not being forthcoming with them, and several damning instances of the president lying in an apparent effort to cover his tracks. All of this led Barr to his four-page summary conclusion that Trump had not committed a crime—a conclusion that flew in the face of Mueller’s findings.

The stark difference between the attorney general’s treatment of the obstruction case against Joseph and MacGregor and the obstruction cases at the heart of the Mueller report serves as a pointed reminder that Barr’s response to the obstruction issues raised by the Mueller report was partisan and unprincipled.

*****************************************

Golly gee, who woulda thought that a guy who “auditioned” for his job by promising to turn the DOJ into “Trump’s personal law firm” to be used against the United States of America and its people while being paid by same USA would turn out to be exactly the type of unethical hack that he promised to be? I mean we expect Trump sycophants to lie about everything. But, Barr only lies about the law when it suits Trump’s purposes — he’s made good on his promise to help Trump degrade and destroy American democracy.

PWS0

04-27-19

COLLISION COURSE: 3rd Cir. Case Shows How Article III Courts’ Demand For Cogent, Detailed Analysis From Immigration Judges Will Collide Head On With Barr’s Plans To Further “Dumb Down” The Immigration Court System! — Result Could Flood Article IIIs With More “Idiot Orders!” — Liem v. Attorney General

181955p

Liem v. Attorney General, 3d Cir., 04-19-19, published

PANEL: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges

OPINION BY:  Judge Rendell

KEY QUOTE:

Because the BIA did not explain its conclusion and did not meaningfully consider much of the evidence presented by Liem, we will grant his petition for review, vacate the denial of his second motion to reopen, and remand to the BIA for further proceedings consistent with this opinion. In doing so, we do not decide whether Liem has shown materially changed conditions in Indonesia warranting reopening of his removal proceedings. Rather, we conclude that the abovementioned evidence contradicting the BIA’s determination is strong enough to require the BIA to afford it more thorough consideration. We remand for the BIA to meet its heightened duty and meaningfully consider all of the evidence, which may or may not yield a different result.

**************************************

Welcome tho the world of today’s BIA, where it’s all about numbers — who cares about analysis.

And, Barr fully and contemptuously intends to make it even worse — stuff it down the throats of the Article IIIs — by encouraging more use of non-analytical “summary affirmances” at the same time that Immigration Judges are being pushed to enter more “idiot orders” denying relief without any real reasoning. Then, he’s going to count on “Trump’s Chumps” among the Article IIIs to “Chevron” and “Brand X” themselves right out of existence.

So, we’re about to find out how much integrity the Article IIIs really have. Will they resist and appropriately “stuff” Barr’s blatant, unethical attempt to shift the “backlog” to them by “just saying no” and returning these cases en masse? Will they finally step up to the plate and rule this entire Immigration “Court” farce unconstitutional, halting most removals until Congress establishes a Due Process compliant independent system?

Or, as Trump, Sessions, and now Barr count on, will they function as “Trump’s Chumps,” mere “stationmasters on the deportation railroad” whose job it is to count the cattle cars of humans heading south? Folks in robes willing to “go along to get along” with the “new Jim Crows” by tanking their responsibility to enforce the Constitution for migrants. Just “defer” to non-existent analysis and parodies of court proceedings because we’re dealing with the vulnerable who can’t fight  back.

History will be watching how they perform. So far, Trump & Co. haven’t been completely right, particularly about the lower Federal Court judiciary. They have encountered quite a few judges appointed by both parties ready and willing to stop the Administration’s all out assault on the rule of law and our Constitution.

But, the Trumpsters  haven’t been completely wrong about the higher Federal Courts either. The totally disingenuous performance of the “Trump Chump Five” during oral argument this past week at the Supremes on the “Census Case” — a “no brainer” teed up by the lower courts that an impartial and functional Court would have used to deliver a resounding 9-0 rebuke of Trump’s “DOJ Legal Sycophant Ethics-Free Team” — could have been scripted by Stephen Miller with a little help from Steve Bannon.

The big problem here is that folks in the “ivory tower” of the U.S. Circuit Courts and the Supremes operate outside the real world. They don’t seem to be able to picture themselves or their families or loved ones in the cattle cars heading south on the railroad. Indeed, unlike trial judges, they  don’t even have to face the folks they are disenfranchising, dehumanizing, and whose legal rights they are trashing.

Their failure to connect the law with humanity, human rights, moral values, and simple fundamental fairness may well be the downfall for all of us. At some point, they might find that the “Liar-in-Chief” and his toadies no longer need their stationmasters — that complicit judges have become as dispensable as the humans whose lives and rights they have failed to protect.

PWS

04-27-19

 

 

STANDING TALL: 2d Cir. Says “No” To Trump Kakistocracy’s Misuse Of Deportation To Violate First Amendment — Ragbir v. Homan

Press Release: Federal Appeals Court Holds that The First Amendment Protects Immigrant Rights Activists from ICE Retaliation

New York, NY —  A federal appeals court has ruled in favor of immigrant-rights activist Ravi Ragbir, concluding that the First Amendment prohibits the government from targeting immigration activists for deportation based on their political speech. “To allow this retaliatory conduct to proceed would broadly chill protected speech, among not only activists subject to final orders of deportation but also those citizens and other residents who would fear retaliation against others,” the decisionstates. It goes on to explain:

Ragbir’s speech implicates the apex of protection under the First Amendment. His advocacy for reform of immigration policies and practices is at the heart of current political debate among American citizens and other residents. Thus, Ragbir’s speech on a matter of “public concern” is at “the heart of . . . First Amendment[] protection,” and “occupies the highest rung of the hierarchy of First Amendment values.’”  Because Ragbir’s speech concerns “political change,” it is also “core political speech” and thus “trenches upon an area in which the importance of First Amendment protections is at its zenith.” Indeed, his “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.”  (citations omitted).

The court of appeals concluded: “Ragbir’s speech implicates the highest protection of the First Amendment,” and “he has adduced plausible — indeed, strong — evidence that officials responsible for the decision to deport him did so based on their disfavor of Ragbir’s speech (and its prominence).”  

The decision further held that a federal statute stripping courts of their power to hear these First Amendment claims is itself unconstitutional. The court of appeals sent the case back to the district court to consider the case in light of its conclusions, directing the district court to stay Mr. Ragbir’s deportation as it considers the next steps in the case.

Mr. Ragbir, Executive Director of the New Sanctuary Coalition, was abruptly detained by Immigration and Customs Enforcement (“ICE”) on January 11, 2018 after years of routine check-ins. ICE’s action came at the heels of its similarly abrupt arrest and detention of Jean Montrevil, a co-founder of New Sanctuary Coalition, that same month. ICE deported Mr. Montrevil and attempted to do the same to Mr. Ragbir before a federal court ordered his release. ICE officials made clear that they resented Mr. Ragbir’s and Mr. Montrevil’s outspoken activism and criticism of U.S. immigration policies.

Even after Mr. Ragbir’s release from detention in January 2018, ICE continued to pursue Mr. Ragbir’s deportation, prompting the New Sanctuary Coalition of New York City, CASA, Detention Watch Network, the National Immigration Project of the National Lawyers Guild, and the New York Immigration Coalition to join Mr. Ragbir in filing suit (Ragbir v. Homan) to challenge the targeting of immigrant rights activists by federal immigration officials. The suit alleged that the specific actions against Mr. Ragbir, along with similar retaliatory actions against activists across the country, were part of a pattern and practice of unlawful targeting in violation of the First Amendment.

The district court denied Mr. Ragbir’s motion for a preliminary injunction and dismissed the claims challenging his deportation under the First Amendment. On appeal, the Second Circuit vacated that decision, concluding that the alleged retaliatory deportation by ICE was sufficiently “outrageous” to violate the First Amendment, and that the Constitution requires judicial review of these claims. The opinion was written by Judge Droney and joined by Judge Leval. A dissent was filed by Judge Walker, who stated that he agreed with much of the majority’s reasoning, but believed ICE’s retaliation against Mr. Ragbir ended with his release from immigration detention.  

“I cannot begin to express my gratitude to all those who have stood with us in this struggle. It humbles me to know that not only will my voice be protected, but that together we can protect the voices of so many people who are living in this country under the threat of deportation,” said Mr. Ragbir. “It was all of our voices together that made this decision possible and we have to continue to speak out against the travesty of our deportation system.”

“Today’s decision stands as a warning to this administration to end its pattern of retaliating against immigrant-rights activists across the country,” said R. Stanton Jones of Arnold & Porter, who argued the case at the Second Circuit. “Mr. Ragbir’s activism, his advocacy, and his protest for immigrant rights stand in America’s greatest civic traditions.  With today’s decision, Mr. Ragbir may continue his important work free from fear of forceful government retaliation.”

“This decision affirms a constitutional principle of critical importance — the First Amendment prohibits our government from silencing its political opponents by deporting them,” said William Perdue of Arnold & Porter. “Immigration officials are not above the Constitution.”

The lawsuit was supported by numerous faith leaders, immigrant rights organizations, elected officials, activists, and others who spoke out on behalf of protecting immigrants’ First Amendment rights (including but not limited to the New York State Council of Churches, Make the Road New York, the Center for Popular Democracy and the Center for Popular Democracy Action, the Institute for Constitutional Advocacy and Protection, and the Knight First Amendment Institute). “Protecting activist voices is about protecting the movement,” said Jessica Rofé of the NYU Immigrant Rights Clinic. “So many have stood up for Ravi because they know what is at stake.”

“Ravi’s crucial advocacy drives to the heart of our nation’s moral imperative to remember that immigrants are humans who deserve to be followed, listened to and protected,” said Pastor Kaji Dousa, co-chair of New Sanctuary Coalition. “For asserting that immigrants have rights and are not disposable, ICE sought to silence Ravi and deport him. We are grateful that the Second Circuit had the wisdom to rule on the side of liberty and to uphold the notion that even Congress can’t take away immigrants’ Constitutional rights. Now Ravi can continue with the very work this country so deeply needs.”

“CASA applauds the Second Circuit’s decision allowing Ravi to move forward with his case.  It is an important vindication of the First Amendment right of all members of our society to make their voices heard, free from fear of retaliation.  Our leaders will not be silenced, as we continue to fight back against the abuses of the current administration’s inhumane immigration policies, and call on Congress to finally reform our broken immigration system so that families can remain together,” said George Escobar, CASA Chief of Programs and Services.

“Today’s ruling by the Second Circuit is a victory for the First Amendment and for all immigration activists around the state. The Court’s finding affirms what we always knew — Immigration and Customs Enforcement (ICE) unlawfully targeted New Sanctuary Coalition’s Ravi Ragbir for deportation as a result of his immigration rights activism,” said Betsy Plum, VP of Policy, New York Immigration Coalition.

“We know that the struggle is not over,” said Alina Das of the NYU Immigrant Rights Clinic. “But we are on our way. We are so deeply grateful for this decision because it will allow us to continue our fight for justice for Ravi and for all those who have been targeted and taken from our community for speaking out.”

In Solidarity and gratitude,

New Sanctuary Coalition

*********************************

Well, as we’ve seen in today’s posts, some judges stand tall, others are small.

PWS

04-25-19

THE GIBSON REPORT 04-22-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

 

THE GIBSON REPORT — 04-22-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

 

AG Barr Orders Immigration Judges To Stop Releasing Asylum-Seekers On Bail

NPR: In a written decision that overturns a 2005 policy, Barr directed immigration judges not to release migrants on bail once their cases have been approved for expedited removal proceedings — a status granted only after an applicant successfully establishes “a credible fear of persecution or torture” in the home country. See also Border Patrol Holds Hundreds of Migrants in Growing Tent City Away From Prying Eyes.

 

Rule Keeping Asylum Seekers in Mexico Can Temporarily Proceed, Court Says

NYT: A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United  States to wait in Mexico while their cases are decided.

 

How Trump’s Attorneys General are transforming U.S. immigration law

Reuters: Former Attorney General Jeff Sessions and his successors have been unusually active in this practice compared to their predecessors, a Reuters analysis of Justice Department data shows. The data describe an unprecedented effort by the Justice Department to quietly advance policy goals and transform immigration law from the top down.

 

White House weighs travel restrictions for countries with frequent visa overstays

Politico: Some of the countries with the highest rates of overstaying temporary visas are in Africa. Chad, Burkina Faso, Djibouti, Eritrea, Liberia, Somalia, and South Sudan have among the highest overstay rates for short-term tourist and business visas, although they send relatively small numbers of travelers to the U.S. each year.

 

Homeland Security Lawyers In Manhattan Are Increasingly Using Video To ‘Appear’ In Immigration Court 20 Blocks Away

Gothamist: On Wednesday, a new judge, Monte Horton, was presiding over one new courtroom at Varick Street for quick procedural hearings known as a master calendar session. At the empty table where a DHS lawyer normally sits, to question each immigrant, there was just a big, white cardboard box for immigration lawyers to submit copies of documents filed with the court. But the video feed to Federal Plaza was broken. (Equipment failures have been a problem in court hearings by video.) After a delay, the DHS attorney appeared by telephone.

 

No ICE Arrests In Courthouses Without Judicial Warrants, N.Y. Court Directive Says

NPR: The New York State Office of Court Administration issued new rules Wednesday curtailing the ability of federal immigration officials to arrest immigrants in state courthouses without warrants.

 

Immigrants are being denied US citizenship for smoking legal pot

QZ: US Citizenship and Immigration Services (USCIS), the federal agency in charge of processing visa and citizenship applications, has been rejecting immigrants who work for the marijuana industry or have admitted to using the drug in states where it’s legal, immigration lawyers and advocates say.

 

Why HUD Wants to Restrict Assistance for Immigrants

CityLab: On Wednesday, the U.S. Department of Housing and Urban Development (HUD) proposed a new rule that seeks to vet all members of families applying for subsidized or public housing, even those who have declared themselves ineligible in the application.

 

Ten-Fold Difference in Odds of ICE Enforcement Depending Upon Where You Live

TRAC: A person’s odds of being arrested and deported vary greatly depending upon where he or she lives. The odds of SC deportations and ICE community arrests showed up to a ten-fold difference among the states. Living in a sanctuary jurisdiction often reduced these odds.

 

Hundreds of Africans tried to reach the United States. Now they’re stuck in Mexico.

WaPo: After several weeks of waiting for the transit permits, Africans launched a protest outside the immigration office, yelling that Mexican officials were racist. Mexican television broadcast images of the migrants apparently scuffling with security guards in front of the building.

 

A member of an armed group detaining migrants at the border has been arrested by the FBI

CNN: Earlier this week, videos posted online purported to show migrants being held by a militia known as the United Constitutional Patriots before being turned over to US Border Patrol.

 

Closing USCIS International Offices Will Leave US Citizens, Military Members, and Refugees Abroad Without Help

AIC: U.S. Citizenship and Immigration Services’ international field offices provide critical services to Americans living abroad, as well as refugees and other immigrants. But in a supposed effort to cut costs, the Trump administration plans to close all 23 offices that span 21 countries by the end of 2019.

 

Honduran transgender woman freed after a year in US detention

Guardian: Nicole García Aguilar was freed from the Cibola County detention facility in New Mexico on Wednesday night, a week after lawyers filed a habeas corpus writ challenging her unjustified and prolonged detention by Immigration and Customs Enforcement (Ice).

 

‘When Deported, You Become Nothing’

Politico: Last year, we spent 10 days traversing thousands of miles across the state of Puebla, Mexico, and in later months across New York’s five boroughs in a door-to-door search for stories like Jorge’s. We wanted to put names and faces to the story of deportation—a story that is so often told only through statistics.

 

LITIGATION/CASELAW/RULES/MEMOS

 

AG Finds Individual Who Is Transferred from Expedited Removal to Full Removal Is Ineligible for Release on Bond

The Attorney General found that if an individual is transferred from expedited removal to full removal proceedings after establishing credible fear, he is ineligible for bond and must be detained, unless he is granted parole. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) AILA Doc. No. 19041699

 

Deal Reached In Suit Over Atty Access In Immigration Court

Law360: A legal services nonprofit has agreed to pause a lawsuit challenging a government rule that punishes attorneys who offer limited representation to foreign citizens without formally appearing before the immigration court while the U.S. Department of Justice revises its regulation on attorney representation.

 

Department of Consumer and Worker Protection Files Second Lawsuit Against Business That Continues to Prey on Immigrant New Yorkers

NY DCWP: DCWP has filed a lawsuit in New York County Supreme Court against Angel G. Buitron, Buitron Offices & Associates, Susana T. Abarca, and the Law Office of Susana Abarca, PLLC for allegedly using a multi-part scheme to deceive immigrant consumers. DCWP is seeking a court order to permanently stop the illegal business practices and to prevent Buitron from acting as an immigration assistance service provider. DCWP is also seeking that they return money to consumers, create a consumer restitution fund for other victims, surrender any profits, and pay civil penalties for violations of the City’s Consumer Protection Law.

 

Argument preview: Must an unauthorized immigrant in possession of a firearm know he is in the country illegally?

SCOTUSblog: The U.S. Supreme Court will puzzle over this classic, yet novel, statutory question of “mens rea,” or criminal intent, when it hears argument on April 23 in Rehaif v. United States.

 

District Court Judge Issues Preliminary Injunction Blocking Termination of TPS for Haiti

A district court judge issued a preliminary injunction finding that the plaintiffs are likely to succeed on the merits of their APA claims and equal protection claim and enjoining the Trump administration from terminating TPS for Haiti, effective immediately. (Saget v. Trump, 4/11/19) AILA Doc. No. 19041530

 

District Court Judge Issues Order Requiring USCIS to Adjudicate Certain SIJ Petitions

A federal district court judge issued an order requiring USCIS to adjudicate Special Immigrant Juvenile petitions for people between the ages of 18 and 21 issued special findings orders by the New York Family Court. (R.F.M. v. Nielsen, 4/8/19) AILA Doc. No. 19041635

 

Settlement Reached to Reunite Central American Children with Parents in the United States

A settlement was reached in S.A. v. Trump, the lawsuit challenging the Trump administration’s termination of the Central American Minors (CAM) Parole program, that may allow approximately 2,700 children living in Central America to safely reunite with their parents in the U.S. AILA Doc. No. 18121937

 

BIA Terminates Proceedings After Finding Kidnapping Is Not a Removable Offense

The BIA terminated proceedings and dismissed the government’s appeal after finding that under the plain language of INA §101(a)(43)(H), kidnapping in violation of 18 U.S.C. § 1201(a) (2012) is not an aggravated felony. Matter of A. Vasquez, 27 I&N Dec. 503 (BIA 2019) AILA Doc. No. 19041535

 

CA4 Finds There Is No Right to “Family Unity” Limiting ICE Detainee Transfers

The court affirmed the district court’s dismissal of a lawsuit challenging the constitutionality of ICE’s detainee transfer practices, finding that there is no substantive due process right to family unity in the context of immigration detention pending removal. (Reyna v. Hott, 4/16/19) AILA Doc. No. 19041802

 

CA7 Says BIA Erred in Finding Petitioner’s New Jersey Conviction for Assault with a Deadly Weapon Was a CIMT

The court granted the petition for review and remanded, finding that the BIA committed several legal errors when it concluded that the petitioner’s conviction for assault with a deadly weapon in New Jersey was a crime involving moral turpitude (CIMT). (Garcia-Martinez v. Barr, 4/16/19) AILA Doc. No. 19041934

 

Lawsuit Challenging the Trump Administration’s Remain in Mexico Policy

The Ninth Circuit issued an order temporarily staying the district court’s preliminary injunction order pending resolution of the emergency stay motion, which allowed the Remain in Mexico policy to continue. (Innovation Law Lab v. Nielsen, 4/12/19) AILA Doc. No. 19021561

 

EOIR Releases Updated Uniform Docketing System Manual

EOIR issued an updated Uniform Docketing System Manual covering the case processing system that governs the management of all cases in the immigration court. Operational procedures are amended or created through OPPM issued by the Chief Immigration Judge. AILA Doc. No. 19041570

 

DOS Designates Islamic Revolutionary Guard Corps as a Foreign Terrorist Organization

DOS notice of the designation of the Islamic Revolutionary Guard Corps (and all aliases) as a foreign terrorist organization pursuant to Section 219 of the Immigration and Nationality Act. (84 FR 15278, 4/15/19) AILA Doc. No. 19041571

 

USCIS Announces the Issuance of a Policy Alert on Interview Guidelines for Marriage Involving Minor(s)

USCIS announced the issuance of additional guidance regarding the adjudication of spousal petitions involving minors, following up on guidance issued in February 2019, including instructions to officers to conduct an additional interview for certain I-30 spousal petitions involving a minor. AILA Doc. No. 19041533

 

Homeland Security Advisory Council’s CBP Families and Children Custody Panel Issues Report on Individuals in CBP Custody

The Homeland Security Advisory Council’s CBP Families and Children Custody Panel released a report that provides findings and recommendations on the best practices from federal, state, and local organizations regarding care for families and children in CBP custody. AILA Doc. No. 19041730

 

CBP Announces I-94 Numbers Will Become Alphanumeric

CBP announced that beginning in May 2019, I-94 numbers will be alphanumeric. Prior to May 2019, I-94 numbers were 11 digits long and only contained numbers. This change is due to the depletion of numeric-only I-94 numbers and to create a long-term solution for the creation of new numbers. AILA Doc. No. 19041531

 

USCIS Issues Policy Alert on Controlled Substance-Related Activity and Good Moral Character Determinations

USCIS issued policy guidance in the USCIS Policy Manual to clarify that violation of federal controlled substance law, including for marijuana, remains a conditional bar to establishing good moral character for naturalization even where that conduct would not be an offense under state law. AILA Doc. No. 19041930

 

System Error at the VSC Affecting Approval Notices

AILA received reports from members of multiple-beneficiary petitions approved by the Vermont Service Center (VSC) that are missing the name of the first beneficiary (alphabetically, by surname) from the I-797B approval notice. AILA reached out to the VSC Premium Processing Unit. AILA Doc. No. 19041799

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Sunday, April 21, 2019

·         Utah Amends Misdemeanor Sentencing to Help Immigrants

·         Immigrants’ Taxes Help Save the Social Security System

·         FBI Arrests Member of Militia Group Detaining Migrants

·         Happy Easter

Saturday, April 20, 2019

·         Music Break: Grupo Fantasma Takes On the Wall

·         How Trump’s Attorneys General are transforming U.S. immigration law

Friday, April 19, 2019

·         NYC Mexican Restaurateurs Take the Lead on Immigration Activism

·         The Real Illegal Immigration “Crisis” Isn’t on the Southern Border: It is Visa Overstays

·         Ninth Circuit Rejects Bulk of Trump Administration’s Challenge to California “Sanctuary” Laws

·         Immigration Article of the Day: Irregular Migration and International Economic Asymmetry by Chantal Thomas

Thursday, April 18, 2019

·         Taxes & Expatriation Have Never Been So Sexy

·         Colbert Unloads on Trump’s Immigration ‘Monster’ Stephen Miller

·         Immigration Article of the Day: It’s Just Like Prison: Is a Civil (Nonpunitive) System of Immigration Detention Theoretically Possible? by René Marin and Danielle C. Jefferis

Wednesday, April 17, 2019

·         Hunger Strikers Released from El Paso Detention Facility

·         Argument preview: Must an unauthorized immigrant in possession of a firearm know he is in the country illegally?

·         Trump and Cher in war of words over immigration on Twitter

·         Attorney General Overrules BIA Precedent, Expands Mandatory Detention of Asylum Seekers

Tuesday, April 16, 2019

·         Drowning or Diaspora: Where do we go from here?

·         Korean Immigrants in the United States

·         How Hispanics really feel about Trump

·         What the Trump administration must do to get a grip on the border crisis

·         Father & Son Separated at Border, Reunited Nearly 11 Months Later

Monday, April 15, 2019

·         Call for Papers–AALS 2020, Immigration Control and Environmental Regulation: Toward Justice?

·         At the Movies: Marcos Doesn’t Live Here Anymore

·         Denials of U.S. immigrant visas skyrocket after public charge rule change

·         Ninth Circuit Stays Injunction of Trump “Return to Mexico” Policy

·         Cellist Yo-Yo Ma Plays Bach In Shadow Of Laredo Border Crossing

·         Immigration Article of the Day: Citizenship Gaps by D. Carolina Núñez

 

****************************************

Thanks, Elizabeth, for being an inspiration and an amazing resource for the NDPA!

PWS

04-25-19

VAL BAUMAN @ DAILY MAIL: Stripped Of Its Toxic Rhetoric, Trump’s Plan To Send Asylum Applicants To Cities Where They Would Be Welcomed & Have Access To Opportunities Actually Seems Pretty Rational — That’s Why It’s Unlikely To Happen!

https://www.dailymail.co.uk/news/article-6955263/Trumps-bus-immigrants-sanctuary-cities-actually-HELP-migrants.html

Val writes:

EXCLUSIVE: Trump’s move to bus immigrants to sanctuary cities could actually HELP migrants by putting them in courts where judges are more likely to grant them asylum, experts reveal

  • Sanctuary cities, counties and states are regions where officials have passed laws to protect immigrants who are in the country illegally – for example by limiting cooperation between ICE and local law enforcement 
  • Trump’s proposal to bus immigrants to sanctuaries could have an unintended effect by relocating migrants to immigration court districts where judges are statistically more likely to grant asylum, experts say
  • Trump’s idea could backfire because the likelihood of whether an immigrant’s asylum application will be successful varies dramatically depending on the state in which their case is heard, federal data shows
  • Many sanctuary cities are home to court districts that are statistically more likely to approve asylum claims 
  • For example, New York – a sanctuary city – was the most likely to welcome asylum seekers, with only 34% denied in 2018, while immigration judges in North Carolina and Georgia had a 96% denial rate

Donald Trump‘s proposal to bus immigrants to sanctuaries could have an unintended effect by relocating migrants to immigration court districts where judges are statistically more likely to grant asylum, according to multiple immigration experts and attorneys.

One major reason Trump’s idea could backfire is that the likelihood of whether an immigrant’s asylum application will be successful varies dramatically depending on the state in which their case is heard – and many of the courts that tend to favor granting asylum are located in sanctuary cities, said former immigration Judge Jeffrey S. Chase.

For example, New York – a sanctuary city – was the most likely to welcome asylum seekers, with only 34 percent denied in 2018, while immigration judges in North Carolina and Georgia had a 96 percent denial rate.

‘It not only gets them to the districts that have better courts and judges, but it gets them to where the pro bono lawyers and (immigration assistance) clinics are,’ Chase told DailyMail.com.

This map, created by the Center for Immigration Studies using ICE data, highlights the locations of sanctuary cities, counties and states around the United States. Yellow markers represent sanctuary counties, while red ones represent cities and green represent states

‘A lot of times when people do bond out they head straight to New York and San Francisco anyway, so they’re saving them the bus ticket,’ he added.

A Department of Homeland Security official declined to comment to DailyMail.com.

Sanctuary cities, counties and states are regions where officials have decided to pass laws that tend to protect immigrants who are in the country illegally.

For example, some sanctuary cities refuse to allow local law enforcement to hand people over to ICE after the immigrants were arrested on minor violations.

They were largely established and gained traction under the Obama administration as local officials sought to assert their own authority on immigration issues.

Trump has proposed busing immigrants to sanctuary cities because he says the mostly Democratic safe havens for migrants should be ‘very happy’ to take in people who have entered the country illegally.

It remains unclear if the White House will go through with the proposal, which the president said the administration was still strongly considering in a series of tweets on April 12.

. . . .

*************************************

Thanks, Val, for your thoughtful analysis. Go on over to the Daily Mail at the link to  read Val’s complete article.

One thing the Trumpsters never want to be caught doing is something reasonable that will help the immigration system work the way it is supposed to. That’s why facilitating the assistance asylum seekers need to get fair and timely hearings before fair and impartial U.S. Immigration Judges under a correct interpretation of U.S. asylum law has never been part of this Administration’s equation.

Too bad it isn’t. While perhaps not what “the base” had in mind, a program of working with localities and NGOs to get asylum applicants represented and before fair and impartial Immigration Judges on a timely cycle would certainly be much cheaper and easier to administer than mass detention, wall building, child separation, “Return to Mexico,” and endless crippling backlogs in the Immigration Courts.

Undoubtedly, it would result in more asylum grants. It also would require a much more robust, sensible, and realistic use of prosecutorial discretion (“PD”) by the DHS to  “free up” earlier time slots on the Immigration Court dockets without touching off yet another mindless round of “Aimless Docket Reshuffling.”

But, it also should result in fairer, more timely, more humane removals of those who do not qualify for asylum or other protection under our laws as properly interpreted and fairly administered.

To the extent that such removals serve as a “deterrent” to future unqualified arrivals (something I doubt based on the evidence to date, but am willing to see what happens), the Administration would also have empirical evidence supporting at least part of its theory of “control through deterrence.”

A program such as I’ve outlined also could receive bipartisan support from Congress.

Won’t happen, at least under Trump.  But, that doesn’t mean that it shouldn’t.

PWS

04-25-19

LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!

https://www.jeffreyschase.com/blog/2019/4/21/a-better-approach-to-unable-or-unwilling-analysis

 

A Better Approach to “Unable or Unwilling” Analysis?

“K.H., a Guatemalan native and citizen, was kidnapped, beaten, and raped in Guatemala when she was seven years old.”  That horrifying sentence begins a recent decision of the U.S. Court of Appeals for the Sixth Circuit denying asylum to that very same youth.

In that case, DHS actually stipulated that the applicant was persecuted on account of a statutorily protected ground.  But the insurmountable hurdle for K.H. was her need to establish that the government of Guatemala was unable or unwilling to control the gang members who had persecuted her.

Asylum is supposed to afford protection to those who are fleeing something horrible in their native country.  Somehow, our government has turned the process into an increasingly complex series of hoops for the victim to jump through in order to merit relief.  Not long after Congress enacted legislation in 2005 making it more difficult for asylum seekers to be found believable, the Seventh Circuit Court of Appeals acknowledged that “asylum hearings are human events, and individuals make mistakes about immaterial points…Basing an adverse credibility finding on these kinds of mistakes appears to be more of a game of ‘gotcha’ than an effort to critically evaluate the applicant’s claims.”  Sankoh v. Mukasey, 539 F.3d 456, 470 (7th Cir. 2008).  More recent developments have extended the game of “gotcha” beyond credibility determinations and into substantive questions of law.

It is recognized that one can qualify for asylum where the persecutors are not part of the government, provided that the government is either unable or unwilling to control them.  In a recent amicus brief, the Office of the United Nations High Commissioner for Refugees (UNHCR) correctly stated what seems obvious: that “the hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors.”  As the whole point of asylum is to provide humanitarian protection to victims of persecution, of course the test must be the effectiveness of the protection.  UNHCR continued that the fact that a government has enacted laws affording protection is not enough, as “even though a particular State may have prohibited a persecutory practice…the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively.”

When I was an immigration judge, I heard testimony from country experts that governments were often inclined to pass laws or even create government agencies dedicated to the protection of, e.g. religious minorities solely for cosmetic reasons, to give the appearance to the international community that it was complying with international human rights obligations, when in reality, such laws and offices provided no real protection.  But UNHCR recognizes that even where there is good intent, “there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities.”

Yet U.S. law has somehow recently veered off course.  In unpublished decisions, the BIA began applying what seems like a “good faith effort” test, concluding that the asylum applicants had not met their burden of establishing that the government was “unable or unwilling to protect” if there was evidence that the government showed some interest in the issue and took some action (whether entirely effective or not) to provide protection.  Such approach wrongly ignored whether the government’s efforts actually resulted in protecting the asylum seeker. Next, former Attorney General Jeff Sessions weighed in on the topic in his decision in Matter of A-B-, in which he equated a government’s unwillingness to control the persecutors (which could potentially be due to a variety of factors, including fear, corruption, or cost) with the much narrower requirement that it “condone” the group’s actions.  He further opined that an inability to control requires a showing of “complete helplessness” on the part of the government in question to provide protection. These changes have resulted in the denial of asylum to individuals who remain at risk of persecution in their country of origin.

In K.H., it should be noted that the evidence that convinced the BIA of the Guatemalan government’s ability to afford protection included a criminal court judge’s order that the victim be moved to another city, be scheduled for regular government check-ins as to her continued safety there (which the record failed to show actually occurred), and the judge’s further recommendation that the victim seek a visa to join her family in the U.S.  A criminal court judge’s directive to move to another city and then leave for a safer country hardly seems like evidence of the Guatamalan government’s ability or willingness to provide adequate protection; quite the opposite. But that is how the BIA chose to interpret it, and somehow, the circuit court found reason to let it stand under its limited substantial evidence standard for review.

Challenges to these new interpretations are reaching the circuit courts.  Addressing the issue for the first time, the Sixth Circuit in K.H. created a rather involved test.  The court first set out two broad categories, consisting of (1) evidence of the government’s response to the asylum seeker’s persecution, and (2) general evidence of country conditions.  WIthin broad category (1), the court created three subcategories for inquiry, namely: (1) whether the police investigated, prosecuted, and punished the persecutors after the fact; (2) the degree of protection offered to the asylum seeker, again after the fact of their being persecuted, and (3) any concession on the part of the government, citing a Third Circuit decision finding a government’s relocation of a victim to Mexico as an admission by that government of its own inability to provide adequate protection.  (Somehow, the criminal judge’s order to relocate K.H. to another city and then seek a visa to the U.S. was not viewed as a similar concession by the BIA.)

Under broad category (2) (i.e. country conditions), the court established two subcategories for inquiry, consisting of (1) how certain crimes are prosecuted and punished, and (2) the efficacy of the government’s efforts.

Some shortcomings of this approach jump out.  First, many asylum applicants have not suffered past persecution; their claims are based on a future fear of harm.  As the Sixth Circuit approach is based entirely on how the government in question responded to past persecution, how would it apply to cases involving only a fear of future persecution?

Secondly, and more significantly, the Sixth Circuit’s entire approach is to measure how well a government acted to close a barn door after the horse had already escaped.  The test is the equivalent of measuring the owner of a china shop’s ability to protect its wares from breakage by studying how quickly and efficiently it cleaned up the broken shards and restocked the shelves after the fact.

I would like to propose a much simpler, clearer test that would establish with 100 percent accuracy a government’s inability or unwillingness to provide effective protection from a non-state persecutor.  The standard is: when a seven year old girl is kidnapped, raped, and beaten, the government was presumably unable to provide the necessary effective protection.

If this seems overly simplistic, I point to a doctrine commonly employed in tort law, known as res ipsa loquitur, which translates from the Latin as “the thing speaks for itself.”  It is something all lawyers learn in their first year of law school. I will use the definition of the concept as found on the Cornell Law School website (which is nice, as I recently spoke there), which reads:

In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence.  The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

The principle has been applied by courts since the 1860s.

So where the government has stipulated that the respondent suffered persecution on account of a protected ground, should we really then be placing the additional burden on the victim of having to satisfy the “unable or unwilling” test through the above line of inquiry set out by the Sixth Circuit?  Or would it be more efficient, more, humane, and likely to reach a more accurate result that conforms to the international law standards explained by UNHCR, to create a rebuttable presumption of asylum eligibility by allowing the asylum applicant to establish that the persecution would not ordinarily have occurred if the government had been able and willing to provide the protection necessary to have prevented it from happening?  The bar would be rather low, as seven year olds should not be kidnapped, raped, and beaten if the police whose duty it was to protect the victim were both able and willing to control the gang members who carried out the heinous acts. The standard would also require a showing that such harm occurred in territory under the government’s jurisdiction (as opposed to territory in which, for example, an armed group constituted a de facto government).

Upon such showing, the burden would shift to DHS to prove that the government had the effective ability and will to prevent the persecution from happening in the first place (as opposed to prosecuting those responsible afterwards) by satisfying whatever complex, multi-level inquiry the courts want to lay out for them.  However, DHS would not meet its burden through showing evidence of the government’s response after the fact. Rather, it would be required to establish that the Guatemalan government provides sufficient protection to its citizens to prevent such harm from occurring in the first instance, and that what happened to the asylum applicant was a true aberration.

Shifting the burden to DHS would make sense.  It is often expensive to procure a respected country expert to testify at a removal proceeding.  As more asylum applicants are being detained in remote facilities with limited access to counsel, it may be beyond their means to retain such experts themselves.  The UNHCR Handbook at para. 196 recognizes the problems asylum seekers often have in documenting their claims.  It thus concludes that “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.”

  Furthermore, ICE attorneys who should welcome the role of such experts in creating a better record and increasing the likelihood of a just result  have taken to disparaging even highly respected country experts, sometimes subjecting them to rather hostile questioning that slows down proceedings and might discourage the participation of such experts in future proceedings.  Therefore, letting ICE present its own experts might prove much more efficient for all.

Incidentally, UNHCR Guidelines published last year state that while the Guatemalan government has made efforts to combat gang violence and has demonstrated some success, “in certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection…”  The report continued that some temporary police operations have simply caused the gangs to move their operations to nearby areas. The report further cited the problem of impunity for violence against women and girls, as well as other groups, including “human rights defenders, legal and judicial professionals, indigenous populations, children and adolescents, individuals of diverse sexual orientations and/or gender identities, journalists and other media workers.”    The same report at pp. 35-36 also references corruption within the Guatemalan government (including its police force) as a “widespread and structural problem.”  DHS would have to present evidence sufficient to overcome such information in order to rebut the presumption triggered by the fact of the persecution itself.

Another  benefit of the proposed approach would be its impact on a victim’s eligibility for a grant of humanitarian asylum, which may be granted based on the severity of the past persecution suffered even where no fear of future persecution remains.  A child who was kidnapped, raped, and beaten by gang members at the age of seven, and who will certainly suffer psychological harm for the rest of her life as a result, should clearly not be returned against her will to the country in which she suffered such horrific persecution.  Yet the Sixth Circuit upheld the BIA’s denial of such humanitarian protection, because in affirming the Board’s conclusion that K.H. had not met her burden of showing the Guatemalan government was unable and unwilling to protect her (based solely on its after-the-fact response), it also upheld the BIA’s finding that K.H. did not meet all of the requirements necessary for her to have established that she suffered past persecution.  This in spite of the fact that DHS stipulated that she did suffer past persecution on account of a statutorily protected ground. As only an applicant who established past persecution is eligible for humanitarian asylum, this very convoluted approach successfully blocked such remedy.

However, if the standard were to assume that the harm suffered by the asylum applicant triggers the presumption that the Guatemalan government was unable or unwilling to prevent it, the evidence that government’s subsequent efforts to prosecute those responsible and protect the victim would not serve to rebut the presumption.  Rather, it would be considered as possible evidence of changed conditions in the country of origin sufficient to show that after suffering past persecution, the asylum applicant would now have no further fear of returning there. This critical distinction would then allow K.H. to be granted humanitarian asylum even if the government prevailed in its arguments, as opposed to facing deportation that would return her to the scene of such extreme persecution.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

 

The Immigration Court: Issues and Solutions

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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But, here’s the deal, complicit and complacent judges! We’re now governed by folks who have no respect for judges, the Constitution, the law, and no use for judges unless they are doing  the bidding of the “Great Leader” and his flunkies. So, maybe your time will come too, when your rights or your family’s rights become dispensable to the powers that be.
But, there won’t be any Due Process or legal system left to protect you. And, whose going to stand up for your rights as they are trashed and trampled when you lacked the courage, scholarship, and integrity to stand up for the rights of others, particularly the most vulnerable among us?
More bad news for you irresponsible “judicial dudes.”  “No reasonable adjudicator” could have reached the conclusion you did in this case!
Like Judge Chase, I’ve done enough of these cases, at both the trial and appellate level, to know a clear grant when I see one. Indeed, on this record, the idea that the Guatemalan government is willing or able to protect this young lady is preposterous.  It doesn’t even pass the “straight face” test. So much for hiding behind your “standards of review” fiction.  Think of K.H. as your daughter or granddaughter rather than
“a mere stranger” and then see how your “head in the sand” legal analysis works out.
The questionable conduct of the judges at all three levels in this case shows why our current Immigration Court system is so screwed up. Individuals who could efficiently be granted protection at the lowest levels in an honest, well-functioning, and professional system are instead made to ”run the judicial gauntlet” while various “black robes” work hard and occupy time looking for reasons to “stiff” their valid claims for protection. Indeed, in a well-functioning system, cases like this would be granted at the Asylum Office level and wouldn’t clog the courts in the first place.
An independent judiciary with courage and integrity is essential to the survival of our democracy. Sadly, this case is a prime example of a system in failure — at all levels.
PWS
04-25-19

INSIDE TRUMP’S IMMIGRATION KAKISTOCRACY WITH TRAC: “Malicious Incompetence” Reigns As DHS & EOIR “Fly Blind” On Asylum System & Are Now Hiding Data From Public To Cover Up Own Malfeasance!

https://urldefense.proofpoint.com/v2/url?u=https-3A__trac.syr.edu_immigration_reports_556_&d=DwMFAg&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=5P7-gWBTtD9g2EDR8U0pyQ5iVCpXWh5b63SXxj7pZPM&m=7PPq-dt8e4s-LLVyEA4t_Pm56qGq-luz6SZ4sXKnbvY&s=04Kf565VLlHoKvcIpERtb5vE2fKENyBuhZ-26wZhkmA&e=

Data Lacking on Why Immigration Courts Not Overwhelmed with Family Cases

Given reports on the number of families arrested at the border, why aren’t there more of these cases before the Immigration Courts? No one seems to know precisely what happens to each family after members are arrested by the Border Patrol and at ports of entry. In general, DHS itself is responsible for providing “notices to appear” to those arrested, and DHS agencies are also responsible for filing copies of these NTAs, where appropriate, with the Immigration Courts. This is supposed to occur whether or not families remain detained.

NTAs are the “notices to appear” that are given individuals providing official notification that the government is seeking to deport them. DHS agencies – including Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and Citizenship and Immigration Services (USCIS) – have the authority to issue NTAs, and to file them as needed with the Immigration Courts. Although CBP initially arrests these families at the border and at ports of entry, ICE becomes involved if longer periods of detention are needed. Asylum officers at USCIS also enter the picture as they are responsible for conducting “credible fear” and “reasonable fear” reviews for those seeking asylum.

It appears that the government itself does not actually know what happens to those it arrests at the border. It admits it lacks the ability to reliably follow cases when they pass from one agency of DHS to another – such as CBP to ICE and to USCIS – or to connect those cases when jurisdiction has been passed to the Department of Justice (DOJ) where the Immigration Courts are located. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

In many respects it appears that the Administration continues to be flying blind. Clearly, if agency officials don’t have the data they need, they will be unable to effectively manage the situation, or even to accurately identify what additional personnel and other resources are most urgently needed. They also will be unable to effectively assess the impact of alternative policy choices that may be proposed.

In addition, the public is not being providing sufficient access to the data that is being recorded. A new barrier to public access arose just this month when the Department of Justice decided to review what information was released under the Freedom of Information Act. It stopped providing TRAC with particular case-by-case Immigration Court records tracking the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review. Other vital data TRAC had been routinely receiving and making publicly available on its website are also now being withheld.

As a direct result, TRAC is currently unable to update either its asylum web query tool, or its access tool on representation in Immigration Court by state and county. In addition, several of the fields in its tool that allows the public to drill into details on deportation proceedings, are no longer available.

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Attacks on Due Process fueled by “malicious incompetence” are the real “immigration emergency.”  And, unlike the “fake asylum/border crisis” staged by the Kakistocracy, this one is a threat to our national security. Why isn’t anyone being held accountable here?

PWS

04-25-19

NAIJ PRESIDENT HON. A. ASHLEY TABADDOR BLASTS BARR’S INTERFERENCE IN THE BOND SYSTEM FOR ASYLUM APPLICANTS!

https://apple.news/ABEcuPRD5QP20VeTp4Xv5jA

Tess Bonn @ The Hill

Hon. A. Ashley Tabaddor, President, National Association of Immigration Judges (“NAIJ”)

Tess writes:

Immigration judge calls Barr’s move to deny asylum-seekers bond hearings ‘highly problematic’

Immigration Judge Ashley Tabaddor called the Justice Department’s latest move to deny asylum-seekers bond hearings “highly problematic,” saying courts should not be used as a political tool by law enforcement.

“This in terms of the procedure that has been used is highly problematic,” Tabaddor, who is the president of the National Association of Immigration Judges, told Hill.TV’s Buck Sexton and Krystal Ball in an appearance on “Rising.”

“It is allowing the chief prosecutor of the United States to step in, in the middle of judicial proceedings and rewrite the law,” she continued.

Tabaddor added that Barr’s move is another example of why the immigrant court system should function independently of the Justice Department.

“It yet highlights again why immigration court proceedings should really be removed from the Justice Department and be outside of the purview of the political usage of the court as an extension of law enforcement,” she told Hill.TV.

Attorney General William Barr last week issued a new order directing immigration judges not to release asylum-seekers and detain them indefinitely while they await their court hearings.

Barr’s decision reverses a 2005 order, which said certain migrants who passed a “credible fear” interview could stay in the U.S. and seek release on bond until their case is heard in court. But Barr wrote that only the Department of Homeland Security has the authority to release asylum seekers.

The change comes amid an ongoing legal battle over the Trump administration’s policy that requires asylum-seekers to wait in Mexico while their claims make their way through the immigration court system.

Earlier this month, a federal judge issued a preliminary injunction against the policy, saying it failed to protect migrants from danger. Days later, the 9th Circuit Court of Appeals took action allowing the Trump administration to temporarily resume returning asylum-seekers to Mexico as it considers the administration’s appeal to the injunction.

Trump’s program of returning migrants to Mexico was initially launched in January, and the program is part of the administration’s crackdown on the recent influx of migrants at the southern border.

During a recent visit to the border, Trump said the U.S. is being overwhelmed by Central American migrants seeking asylum.

“We can’t take you anymore. I’m sorry. Can’t happen, so turn around,” Trump said, referring to the migrants.

—Tess Bonn

*************************************

Undoubtedly, the participation of Chief Trump Cheerleader and immigration enforcement advocate Bill Barr creates an “appearance of bias.” Indeed, it’s more than an “appearance;” it’s actual bias. So, his interference in the quasi-judicial process is unethical.

The only real question is why Barr, like his predecessor Sessions and their predecessors, is allowed to get away with violating clear standards of ethical conduct. Why don’t “real” Article III Courts fulfill their constitutional role by vacating both the decisions and any case in which an Immigration Judge relies on these invalid attempts to influence and control the quasi-judicial decision-making process for the benefit of a party — the DHS?

PWS

04-24-19

MARTY ROSENBLUTH, ESQUIRE: AMERICAN HERO — In An Era Where Courage, Integrity, & Dedication To The Rule of Law Are Scorned By Political Leaders & Even Ignored By Some Federal Judges, Rosenbluth Stands Tall With Those Whose Legal Rights & Very Humanity Are Being Attacked Daily By A System Gone Badly Awry — Profile By Simon Montlake of The Monitor

https://apple.news/Amlo-pXUXQOijDJIp8pqX7w

 

Simon Montlake of The Monitor (L) & Marty Rosenbluth, Esquire (R)

Simon  writes:

Long shot lawyer: Defending migrants in US’s toughest immigration court

Lumpkin, Ga.

A hazy sun rises over pine-covered hills as Marty Rosenbluth pulls out of his driveway and hangs a left on Main Street. Outside town the two-lane road dips, then climbs before Mr. Rosenbluth slows to take the right-hand turnoff to Stewart Detention Center, a privately run prison for men who face deportation from the United States.

This is where Mr. Rosenbluth, a lawyer, can be found most days, either visiting clients inside the country’s largest immigration detention center or representing them before a judge in an adjacent courtroom. It’s a mile outside Lumpkin, a forlorn county seat that most days has fewer inhabitants than the prison, which has 2,000 beds.

Mr. Rosenbluth parks his red Toyota Prius in the lot and walks to the entrance. He waits at the first of two sliding doors set in 12-foot-high fences topped with coils of razor wire. The first time he came, the grind and clang of the metal doors unnerved him. Now he doesn’t notice, like the office worker who tunes out the elevator’s ping.

Passing the gates, Mr. Rosenbluth enters the court annex and stoops to remove his black shoes for the metal detector. He shows Alondra Torres, his young Puerto Rican assistant who’s on her first day of work, where to sign in and introduces her to the uniformed security guard standing by the detector.

Mr. Rosenbluth, who has a shaved head, black-framed glasses, and a two-inch gray goatee, smiles and spreads his hands. “I’ve never had a paralegal before,” he proudly tells the guard.

Lawyers are in short supply on the ground at Stewart Immigration Court, one of 64 federal courts tasked with deciding the fate of migrants who the U.S. government seeks to send home. The prison is more than two hours from Atlanta, and lawyers often wait hours to see clients and are allowed to bring only notebooks and pens into visitation rooms.

Lawyers who work with these handicaps face longer odds. On average, detained migrants are far less likely to win asylum than those on the outside, in part because it’s much harder to prepare and fight a case from behind bars. Still, of all immigration courts, this may be the toughest of all. “The reputation of Stewart among attorneys is that you will lose,” says Mr. Rosenbluth.

That deters many from taking cases here. But not Mr. Rosenbluth. He moved to Lumpkin two years ago in order to defend people who may have a legal right to stay in the U.S. His clients include recent migrants from the U.S.-Mexico border, whose continued arrival has become a lightning rod for critics of U.S. asylum law and border security. But the majority of his cases involve men who have lived in the country for years or decades, fathering children and putting down roots.

For detainees, having an attorney in immigration court makes a big difference. A 2015 study found that detained immigrants who had legal counsel prevailed in 21% of cases. For those who represented themselves, the success rate was just 2%. Unlike criminal defendants, immigrants have no right to a public defender.

Mr. Rosenbluth, who works for a law firm in Durham, North Carolina, is the only private attorney in Lumpkin. He’s never advertised his services, but word gets around; detainees will pass him notes during prison meetings. Then he consults with his boss on whether to pursue a case.

“If a case has no chance of winning, we just don’t take it,” he says.

But it’s not just about the strength of an individual’s asylum case or bond request. It’s also about who will hear it: Will it be a judge who has denied scores of other similar motions? Or will it be a judge who might, just might, set a bond that a family can afford so their father or son can go home?

“Your judge is your destiny,” says Monica Whatley, a lawyer with the Southern Poverty Law Center.

Even when Mr. Rosenbluth thinks he has a strong case and the right judge, he knows that his client is more likely than not to be deported – and that an immigration judge in New York or Los Angeles may well have ruled in his favor. It’s usually then that he circles back to a nagging moral question: Is he stopping systemic injustices or just greasing the wheels of the deportation industry?

Human rights crusader 

Mr. Rosenbluth’s route to becoming a champion of immigrants’ rights was circuitous. In 1979 he dropped out of college to become a union organizer. A few years later, in 1985, he moved to the West Bank to work with Palestinian trade unions on conditions in Israel. His original plan was to stay three months, then go back to the United Auto Workers. He ended up staying seven years.

Back in the U.S., he worked for Amnesty International on Israeli and Palestinian issues as a researcher and spokesman. The job required Mr. Rosenbluth, who is soft spoken and a natural introvert, to speak publicly about one of the world’s most exhaustively debated conflicts. But he learned how to talk to a crowd and to prepare for tough questions.

Having worked for decades on labor issues and international human rights, law school seemed a good fit. By then Mr. Rosenbluth was in his late 40s. He had moved to North Carolina, which was emerging as a testing ground for stricter enforcement of immigration law and deportation procedures.

“I’m still working on human rights, just from a different angle,” he says. “And these are human rights violations that my government is committing right here at home.”

Counties in North Carolina were early adopters of an Immigration and Customs Enforcement (ICE) program that trained local law enforcement officers to locate and turn over unauthorized immigrants. The program predated President Barack Obama, but his administration supported its expansion as a way to target criminals for deportation.

After graduation, Mr. Rosenbluth found work as an immigration lawyer for nonprofits in North Carolina that were inundated with calls from families seeking the release of detained members. Most had no convictions for felonies or violent crimes. Still, the Obama administration insisted that it was deporting criminals and ensuring public safety.

It was maddening, but it could also be useful: Lawyers would challenge deportations in court as contrary to the administration’s policy of going after only serious criminals. “We could use their own propaganda against them to try to get our clients released,” says Mr. Rosenbluth.

He started hearing about Stewart, a remote facility in Georgia that was housing detainees from across the region. Built as a private prison but never used, it reopened in 2006 as a detention center contracted to ICE. Judges in Atlanta ruled on deportations via video link before the Department of Justice opened a court inside the prison complex in 2010.

That same year Mr. Rosenbluth made his first trip to Stewart. “I was scared witless because it’s so intimidating,” he says. It wasn’t just the metal gates, prison garb, and taciturn guards. He couldn’t confer with his client before the hearing; even a handshake wasn’t allowed.

Mr. Rosenbluth lost his first case. He would lose virtually all his cases at Stewart the next six years while traveling back and forth from North Carolina and staying in the nearest hotel, 36 miles away. He hit on the idea of opening a nonprofit law firm in Lumpkin to provide free counsel to as many detainees as possible. He even had an acronym: GUTS, for gum up the system.

When he pitched the idea to national liberal donors, they blanched. It wasn’t the right time to gum up the system, he was told. Mr. Obama was working on comprehensive immigration reform. The president needed to hang tough on removals of unauthorized immigrants. There were “Dreamers” to protect.

Yeah, thought Mr. Rosenbluth. And their parents are being locked up and deported every day.

Courtroom coups

It’s 8 in the morning when the court rises for Judge Randall Duncan. As he settles into his black wingback chair, three rows of Latino men in prison jumpsuits stare back from wooden benches. One of them is Hugo Gordillo Mendez, a Mexican living in Goldsboro, North Carolina, who was detained in January after neighbors called the police to report an incident at his house. His wife, Diana Gordillo, a U.S. citizen, sits next to Mr. Rosenbluth. The previous day she drove nine hours to attend today’s bail hearing, and she’s hoping Mr. Rosenbluth can persuade the judge to release Mr. Gordillo on a bond.

Ms. Gordillo locks eyes for a minute with her husband. He stares at his feet.

Getting out on bail or a bond is a big deal. Lawyers advise clients to do everything possible to secure their release, preferably with a U.S. citizen and family member as sponsor, so they can go back to their community and fight their deportation there instead of at Stewart. “When people get out of Stewart, they get as far away from there as they can,” says Sarah Owings, an immigration lawyer in Atlanta.

Moving to another jurisdiction is no guarantee of success, of course. But the chances improve significantly. Between 2013 and 2018, some 58% of asylum claims in U.S. immigration courts were denied, according to Syracuse University’s Transactional Records Access Clearinghouse. Over the same period, the denial rate at Lumpkin was 94%. Take Judge Duncan: Of 207 asylum cases that he heard in those five years, only 12 were granted. (Others may have won on appeal.) Denials of bond requests are high at Lumpkin too.

Mr. Gordillo’s case begins with an ICE lawyer citing the immigrant’s status and his arrest for assault as reasons not to release him. “The respondent has not shown that he’s not a danger,” he says.

Mr. Rosenbluth points out that the assault charge was dismissed and that Mr. Gordillo supports his wife and two U.S.-born children, one of whom has a severe medical condition. “His wife, Diana, is in court today,” he says, gesturing at her. She suffers anxiety and has bipolar disorder, he adds. And she will be filing a petition for Mr. Gordillo to become a legal U.S. resident.

“I think that we have a very strong, very viable” case against deportation, he says. “We ask that a reasonable bond be set.”

Judge Duncan takes a few minutes to decide, but as he sums up the family’s medical hardship, he’s already scribbling on a document. “Bond is set at $5,000,” he says.

Mr. Rosenbluth ushers Ms. Gordillo out of the courtroom and explains how she can pay the bond; she has already raised $4,300, and her father will loan her the rest. “He’ll be out today,” Mr. Rosenbluth says, his lawyerly demeanor giving way to giddiness.

Had he lost, Mr. Gordillo could have appealed the ruling and contested his removal to Mexico. But that might take months, and the longer his clients are locked up, the more likely they are to accept deportation as a way out.

“There’s no question that ICE uses incarceration as a litigation strategy. They know people will give up,” he says.

 Judges under pressure

While immigration judges are civil servants who are supposed to apply federal law, studies have found wide variations among judges and between courts in how they handle cases. Being assigned to a judge in Lumpkin or Los Angeles is a distinction with a difference – and for defendants who fear persecution in their home country, it’s a distinction with life-threatening consequences.

Some experts blame the Department of Justice for failing to adequately train and equip judges to handle complex immigration cases. “I think it’s a question of resources,” says Jaya Ramji-Nogales, an assistant professor of law at Temple University and co-author of a study of asylum adjudication called “Refugee Roulette.” “The political will is about building border walls.”

As the backlog of immigration cases has grown, so has pressure on judges to speed through dockets. Former Attorney General Jeff Sessions drew criticism last year for faulting judges who failed to clear 700 cases in a year. Judge Dana Leigh Marks, president emeritus of the National Association of Immigration Judges (NAIJ), has called the push to have understaffed courts investigate complex claims the equivalent of “doing death penalty cases in a traffic court setting.”

Ms. Ramji-Nogales found wide variations in asylum claim rulings filed in different courts. Women judges were on average more likely than men to grant asylum, and judges who joined the bench after careers as federal immigration prosecutors were more likely to deny claims.

Judges who see only detainees in their courtrooms develop a thick skin, says Paul Schmidt, a retired judge. “If all you’re doing is detained [cases], you get the preconception that all these cases are losers,” he says. “If you get in a denial mode, it gets harder for judges to see the other side.”

Mr. Schmidt, a former chairman of the Board of Immigration Appeals, spent 13 years as an immigration judge in Arlington, Virginia. He says the judges who go to work in these courts “probably assume that it’ll be mostly denials, and that’s fine with them.” This also serves the political agenda in Washington, says Mr. Schmidt. “People who are known for moving lots of cases for final removal are classified as productive. And there’s a lot of pressure for moving cases.”

Ashley Tabaddor, an immigration judge in Los Angeles and current president of NAIJ, agrees that courts need more resources. But she pushes back against comparisons of harsh versus lenient judges and says there is no “right number” of denials. “Each case is decided on its merits,” she says.

For most of the men in Judge Duncan’s court this morning, this is their first appearance. After he hears another bond motion – “denied” – he asks the 13 remaining detainees to rise and raise their right hands to affirm they understand their legal status. “Sí,” the men mutter. Speaking via a Spanish interpreter, Judge Duncan explains that they have the right to contest their deportation and to appeal any rulings.

Respondents also have the right to hire an attorney, Judge Duncan says. “How many of you have an attorney?” he asks. Two men raise their hands and are given more time to prepare. The others are called up to the bench. The judge rules all will be deported.

Lumpkin’s lone lawyer

After Mr. Rosenbluth took the job here, he bought a house in town for $20,000. He invites visiting lawyers to rent out his second bedroom and share his home office so they can represent clients at Stewart. But a trickle of defenders has not become a flood. Some days Mr. Rosenbluth is the only lawyer in court.

Attorneys who travel to Stewart grow weary of prison lockdowns, talking to clients through plexiglass windows, and dealing with pettifogging guards. “It’s meant to grind you down,” says Ms. Owings, who has defended several detainees at Stewart.

To save time, most lawyers skip client visits and phone into court hearings in Lumpkin. Mr. Rosenbluth never does this. “I consider it to be borderline malpractice,” he says.

At first guards in Lumpkin would stop Mr. Rosenbluth from shaking his clients’ hands or patting their shoulders. Not in here, they’d scold him; it’s not allowed. Mr. Rosenbluth, who is Jewish, persisted, politely, in a way that was more rabbinical than righteous. Eventually he wore down the guards one by one, and now he embraces his clients, a human touch denied in prison.

When he loses his cases, as he often does, Mr. Rosenbluth comforts the detainee, walks out of the prison, and drives his Prius the mile back home. “Then I’ll scream at the walls,” he says.

As a one-man act, Mr. Rosenbluth can juggle only a dozen or so individual cases at Stewart at a time, knowing that most will end in deportation. Far from gumming up the system, he admits he may be just helping put a veneer of due process on mass expulsions.

Still, he takes solace in making a difference where he can. “You bang your head against a wall” trying to stop Israel from torturing Palestinian suspects, and nothing changes, he says. “Here I make a difference on a daily basis, and I can see it.”

That difference could be amplified as his firm, Polanco Law, is looking to add two more lawyers in Lumpkin this year. Mr. Rosenbluth has begun scoping out empty storefronts for an office. A nearby house has also opened its doors to provide free accommodations for family members visiting detainees.

Having a shingle in town would expand Mr. Rosenbluth’s practice – and perhaps send a message that detainees have a shot at success.

‘This is the best’ 

Mr. Rosenbluth is making coffee when he gets the call. Abdallh Khadra, a Syrian imam whose political asylum was granted a week ago, is getting out after five months inside. The lawyer jumps in his car and heads to Stewart, a broad smile splitting his beard. He always makes sure to be at the prison gate when his clients are released. “It never gets old,” he says. “This is the best.”

On the drive his phone rings again, and this time it’s Mr. Khadra himself. “We’re coming to get you now,” Mr. Rosenbluth tells him. He’s brought Mr. Khadra’s driver’s license and credit card so that he can drive himself back to Cary, North Carolina.

But the head of Mr. Khadra’s mosque calls Mr. Rosenbluth, insisting that he take a bus to Atlanta so that he can be picked up from there. Mr. Rosenbluth shrugs. “I will do what my client wants,” he says after he hangs up.

Most men discharged from Stewart don’t get choices. Those without family or friends waiting outside are shunted into a white van and dumped at a bus station in Columbus, usually at night after the last bus to Atlanta has already left. Local volunteers provide backpacks and blankets and a bed for the night.

Mr. Khadra is more fortunate: The sun is still high when the prison’s side gates grind open and he walks out wearing a gray tunic and black pants, carrying two plastic bags. Mr. Rosenbluth is waiting by a picnic table.

He strides forward to greet his client. The two men, Muslim and Jew, hug and exchange Arabic greetings. “God is merciful. May God bless you.”

Then Mr. Khadra steps forward and falls to his knees on a concrete utility cover. He drops his head and begins to pray.

As he drives home afterward, Mr. Rosenbluth cues up a song on his iPhone that he plays after every release. It’s “Freedom” by Richie Havens.

A long

Way

From my home, yeah.

From my home, yeah.

Yeah.

Sing.

Fr-e-e-dom.

Fr-e-e-dom. 

**************************************************

Thanks for all you do, Marty! You are indeed an amazing and inspirational role model for a new generation of “New Due Process Warriors.”

They will be out there shortly to help you take the fight against “21st Century Jim Crow” immigration policies to every corner of the country and to every court in America that touches upon the lives and rights of migrants. This is a system that relies on cruelty, coercion, isolation, dehumanization, false narratives, fear, misinformation, denial of representation, fake assembly line justice, “go along to get along judging,” and keeping the true horrors of “The Gulag” and the “Kangaroo Courts” that support and enable it out of the public eye. That’s why I also appreciate Simon’s outstanding work in exposing what’s really happening in “The Gulag” operating in our own country using taxpayer dollars to finance its fundamentally unconstitutional and dehumanizing mission.

I just noted in a recent post the complicity of certain judges of the Eleventh Circuit Court of Appeals who are turning a blind eye and going out of the way to misinterpret the law to allow places like the Atlanta Immigration Court and the Stewart Detention Court to flourish, continue to arrogantly abuse human rights, and mock Due Process, Equal Protection, and fundamental fairness right under their noses. https://wp.me/p8eeJm-4dF Those Article III judges who “look the other way”  are just as culpable as the corrupt politicos who run this dysfunctional parody of justice inflicted on America’s most vulnerable. History will not forget their roles and derelictions of duty.

As I always told myself, Due Process is fundamentally about saving lives — one at a time. At the same time, every life you save “builds America,” one case, one human being, one precious life at a time. Thanks again, Marty and Simon, for all you are doing!

Due Process Forever!

PWS

04-21-19

THE TRUMP ADMINISTRATION LIES, BUT TRAC STATS DON’T: TRAC Exposes Trump’s False Narratives About Families & “Sanctuary Cities” – No Families Are Not “Overwhelming” The System & Most Of Them Already Have Been Absorbed By So-Called “Sanctuary Jurisdictions!”

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Despite the concern about the number of families arriving at the border seeking asylum, families continue to remain a minor proportion of new cases arriving at the Immigration Courts each month. For example, during March 2019, just 18.7 percent of the new cases that came in involved these families. Despite this, the court’s backlog continues to climb and reached a new historic high of 869,013 cases on its active docket at the end of March.

After being released in border communities, families seldom remain there. Since September 2018, 32 courts in 24 states have received at least 100 new family cases. Over half of these cases are before courts headquartered in sanctuary cities. Among the top ten courts where family cases are located, six are usually classified as sanctuary jurisdictions. These courts include those in New York City, San Francisco, Los Angeles and Chicago.

These results are based upon the latest court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

Full data on what happens to families after they are arrested at the border, however, are not available. The Justice Department has now stopped providing TRAC with information needed to track the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review.

In addition, the government admits it lacks the ability to reliably follow cases when they are transferred from one agency to another. Without this information, agency officials are unable to effectively manage the situation. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

For the full report, go to:

https://trac.syr.edu/immigration/reports/556/

In addition, a number of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through March 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

***************************************

Senator Ron Johnson (R-WI), the DHS “Advisory Committee,” and other Trump Apologists to the contrary, neither arriving families nor the current asylum law are the problems (except that the Administration fails to apply the current asylum law and procedures fairly). No, the problem is the “malicious incompetence” of the Trump kakistocracy in the White House, at DHS, and in the DOJ.

Democrats must take care not to be “stampeded” by Trump’s bogus White Nationalist narrative (even parroted by some members of the “mainstream press”) into changing asylum laws to further screw asylum seekers. Rather they need to stand firm on insisting that the Trump Administration follow existing laws on asylum, protection of unaccompanied minors, and other forms of humanitarian protection.

There isn’t going to be a “grand bargain’ on immigration until the Trump kakistocracy and its enablers are removed from power. And “border security” does not require a reduction or truncation of the rights of migrants and asylum seekers as a “trade-off” for legalization programs.

Actually, clearing intentionally and maliciously overcrowded Immigration Court dockets of cases of individuals whose removal actually hurts the U.S. and figuring out a way of getting more of these folks we need into the legal immigration system right off the bat (instead of forcing them into the “immigration black market”) are essential parts of any border security program.

What real border security does require is a competent focus on making the asylum adjudication system and the Immigration Court system function in accordance with protection laws, Due Process, and fundamental fairness. A fair, timely, and efficient Immigration Court system serves everyone’s needs, including DHS enforcement.

Fair, impartial, and independent judges who are not controlled by politicos with a White Nationalist agenda would be the basic starting point. It also includes a fair application of the law to include gender based persecution and persecution by gangs and other entities exercising quasi-governmental authority in “failed states.” Indeed, if any “clarifications” are made in asylum law it should be to specifically write these interpretations into the refugee definition as was done by a bipartisan group of legislators in the past who were dissatisfied with the administrative failure to include victims of persecution in the form of coercive family planning in the refugee definition.

PWS

04-21-19

11th CIRCUIT JUDGE ADELBERTO JOSE JORDAN “OUTS” THE ATLANTA IMMIGRATION COURT FOR EQUAL PROTECTION CHARADE IN A DISSENTING OPINION! — — “In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. . . . If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.” — Colleagues Tank & Ignore Constitution With Feeble “Head In Sand” Approach

201714847

Diaz-Rivas v. U.S. Att’y Gen., 11th Cir., 04-18-19, unpublished, Jordan, Circuit Judge, concurring and dissenting

Here’s Judge Jordan’s separate concurring and dissenting opinion:

I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
Case: 17-14847 Date Filed: 04/18/2019 Page: 20 of 42
that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
20

Case: 17-14847 Date Filed: 04/18/2019 Page: 21 of 42
‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
21

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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22

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even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
23

I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
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that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
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‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22

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even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
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disappearance to the authorities. These events transpired quickly, as the brother-in- law refused to pay MS-13 sometime in March of 2015, he was “disappeared” around March 16, 2015, and the family reported his disappearance the very next day.
The BIA, in affirming the IJ’s determination that Ms. Diaz-Rivas failed to establish the required nexus between her persecution and family ties, determined that the predominant reason why MS-13 threatened Ms. Diaz-Rivas and her family was because they involved the authorities. But the BIA committed an error of law by failing to conduct a proper mixed-motive analysis. Based on my review of the record, there is no way to accurately determine which reason was more or less MS- 13’s motivation, and the “at least one central reason” standard does not require us— or Ms. Diaz-Rivas—to attempt such a futile endeavor. Again, Ms. Diaz-Rivas did not need to show that her kinship was MS-13’s primary or dominant motivation. See Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41. Because the BIA and IJ misapplied the relevant legal standard, I would reverse and remand for application of the correct standard.
A
Like the IJ and the BIA, the majority concludes that Ms. Diaz-Rivas’ family ties were not “central,” but it articulates a slightly different rationale. The majority rules that “central” means “essential,” and concludes that Ms. Diaz-Rivas’ family
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ties were not essential to her persecution because MS-13 would have persecuted her regardless of her family’s refusal to pay rents due to the fact she reported her brother- in-law’s disappearance to the authorities. See Maj. Op. at 12–13. As I read its opinion, the majority essentially creates a rule that, if an unprotected ground would have been independently sufficient to instigate the applicant’s persecution, then the protected reason claimed by the applicant cannot be “central.” The majority cites no authorities to support such a rule, and the case it does rely on does not even interpret the “at least one central reason” standard. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007).
On its face, the majority’s rule replaces the phrase “at least one central” in the statute with the word “essential.” See Maj. Op. 11. In doing so, the majority relies on the fact that Ms. Diaz-Rivas used the word “essential” in her reply brief. Id. But we are not bound by a party’s concession in our interpretation of a statute. See Massachusetts v. United States, 333 U.S. 611, 624–25 & n.23 (1948). That is because “[w]e do not cede our authority to interpret statutes to the parties or their attorneys.” See Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1255 (11th Cir. 2015) (Ed Carnes, C.J., dissenting). For example, the majority’s interpretation of the “at least one central reason” may not apply to a future litigant who clearly articulates that “essential” is merely a synonym for “central” and not a wholesale replacement for the standard. I agree that synonyms can be helpful in understanding
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the terms in a statute, but if Congress intended for us to consider whether an unprotected reason would have independently caused the applicant’s persecution, it could have (and, I submit, would have) used the term “essential.” It did not. Just as we do not “soften the import of Congress’ chosen words even if we believe the words lead to a harsh outcome,” we should not exchange Congress’ chosen words when the text is actually beneficial to the litigant. See Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004).
Barring an applicant from protection based on the existence of an unprotected ground takes the statute’s “at least one central reason” standard and recasts it into a “the central reason” standard. See Acharya, 761 F.3d at 299. In practice, the majority’s proposal requires the applicant to show that the protected reason is the persecutor’s “primary” or “dominant” reason. Both of these are improper. See id.; Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41.
B
The Fourth Circuit, in multiple cases, has considered whether family ties were “at least one central reason” for MS-13’s decision to persecute an applicant. These cases include Salgado-Sosa v. Sessions, 882 F.3d 451, 457–59 (4th Cir. 2018); Zavaleta-Policiano, 873 F.3d at 247–49; Cordova v. Holder, 759 F.3d 332, 339–40
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(4th Cir. 2014); and Crespin-Valladares v. Holder, 632 F.3d 117, 127–28 (4th Cir. 2011). See also Hernandez-Avalos, 784 F.3d at 949 (concerning the “Mara 18” gang). These decisions run contrary to the majority’s analysis here.
For example, in Salgado-Sosa, 882 F.3d at 457–59, the Fourth Circuit reviewed the BIA’s determination that the applicant’s family ties were not a central reason for his persecution. There, the applicant and his family refused to pay MS- 13’s “war tax,” causing the gang to attack the family. See id. at 454. The applicant and his stepfather reported one attack to the police and later testified against the gang. See id. In retaliation, the gang attacked the applicant’s family home and the family fought back, injuring at least one of the gang members. See id. The IJ concluded, and the BIA affirmed, that the gang was motivated by the applicant refusing to pay the tax and taking action against the gang, as opposed to his family ties. See id. at 455–456. The Fourth Circuit reversed. Although informing the police, testifying, and fighting back against MS-13 were among the motives to persecute the applicant, the Fourth Circuit concluded that “[t]he record compels the conclusion that at least one central reason for [the applicant’s] persecution is membership in his family[.]” Id. at 453, 457–58. In my mind, Salgado-Sosa is virtually indistinguishable from the facts here, and I would follow it. See also Crespin-Valladares, 632 F.3d at 127 (holding that the BIA erred by concluding that
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the applicant’s relation to a witness who testified against MS-13 was not a central reason because the gang was also motivated by the applicant’s own testimony).
In Hernandez-Avalos, 784 F.3d at 947, the applicant applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. The BIA found that her relationship with her son was not a central reason the gang persecuted her, and that she was threatened “because she would not consent to her son engaging in a criminal activity.” Id. at 949. The Fourth Circuit rejected the BIA’s “excessively narrow reading” of the standard and said that it relied on “a meaningless distinction under the facts.” Id. at 949, 950. It then concluded that the applicant satisfied the nexus requirement because her relation to her son was at least one of “multiple central reasons for the threats [she] received.” Id. at 950 (emphasis added). See also Cordova, 759 F.3d at 339–40.
Cases applying the “at least one central reason” standard to other protected grounds similarly contradict the majority’s interpretation. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (sexual orientation); Oliva, 807 F.3d at 58, 60–61 (moral and religious beliefs); Castro v. Holder, 597 F.3d 93, 100–01 (2d Cir. 2010) (political opinion); De Brenner, 388 F.3d at 635–37 (political opinion). In these cases, our sister circuits ruled that the existence of an unprotected ground “would not be conclusive[.]” Castro, 597 F.3d at 103. That is because an
applicant “need only demonstrate that [her protected reason] was ‘at least one central 28

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reason’ for the abuse; [s]he need not show it was the only reason.” Bringas- Rodriguez, 850 F.3d at 1073.
In all of these cases, the IJ and/or BIA pointed to one or more unprotected reasons why the applicant was persecuted, and in all of these cases, our sister circuits concluded that the IJ and/or BIA interpreted the “at least one central reason” standard too narrowly. The same result, I believe, is warranted here. The majority’s view is irreconcilable with the principles that a protected reason can be one of multiple central reasons and that the existence of an unprotected motive does not preclude the applicant from showing that the protected ground was also central. See, e.g., Hernandez-Avalos, 784 F.3d at 950 (citing Cordova, 759 F.3d at 339).
C
The majority, like the IJ and the BIA, goes to great lengths to assert that Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance was the central reason she was persecuted. See Maj. Op. at 12–14. This misses the point. The text of § 1158(b)(1)(B)(i) compels us to recognize that the existence of an unprotected central reason does not defeat her claim because a second central reason may justify asylum. “When an asylum-seeker claims that a persecutor had multiple motivations, only some of which are based on protected grounds, the immigration judge cannot merely attribute the persecution to a non-protected ground.” Gomez-Rivera v.
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Sessions, 897 F.3d 995, 1000 (8th Cir. 2018) (Kelly, J., dissenting) (citing Marroquin-Ochoma, 574 F.3d at 577). “Rather, it remains necessary to carefully examine the record to determine whether the evidence shows that the persecution also occurred on account of a protected ground.” De Brenner, 388 F.3d at 636.
There is some support for considering whether a particular motive was an independently sufficient reason, but only as applied to the protected reason claimed by the applicant—not to the unprotected one. In Parussimova, 555 F.3d at 741, the Ninth Circuit ruled that a reason is central if (a) “the persecutor would not have harmed the applicant if such motive did not exist,” or (b) “that motive, standing alone, would have led the persecutor to harm the applicant.” The majority cites only the initial portion of the Ninth Circuit’s disjunctive standard, reasoning that MS-13 would have still retaliated against Ms. Diaz-Rivas for her reporting her brother-in- law’s disappearance absent her family ties, but it ignores the second. See Maj. Op. at 11. In addition to not being faithful to what Parussimova held, the majority’s approach fails both in practice and in theory.
First, MS-13 would not have targeted Ms. Diaz-Rivas, for either reason, absent her family ties because she would not have reported her brother-in-law missing absent those family ties. Take Temu v. Holder, 740 F.3d 887, 891–92 (4th Cir. 2014), where the BIA had concluded that the applicant was beaten not due to
his mental illness, but as a result of erratic behavior caused by his mental illness. 30

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The Fourth Circuit reversed, saying that it “struggle[d] to see how a rational factfinder” could reach that conclusion, and that the BIA’s reasoning “demand[ed] logical acrobatics.” Id. at 892. Citing Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance, while discounting the causal relationship between her kinship and that decision, takes an “overly restrictive view of [Ms. Diaz-Rivas’] case.” Oliva, 807 F.3d at 59 (“A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent.”). See also De Brenner, 388 F.3d at 637 (highlighting the BIA’s failure to acknowledge the causal relationship between the protected ground and the unprotected ground); Hernandez-Avalos, 784 F.3d at 950 (same).
Second, the majority fails to consider evidence in the record when it suggests that Ms. Diaz-Rivas never “stat[ed] that her familial connection also mattered to the gang.” See Maj. Op. at 14. During her credible fear interview, Ms. Diaz-Rivas stated that she was being persecuted by MS-13 based on her family ties before she went to the authorities. Specifically, the interviewer asked Ms. Diaz-Rivas whether MS-13 “became upset with your family after you asked for protection from the military.” Ms. Diaz-Rivas responded: “Yes.” The interviewer then clarified by asking: “Was [MS-13] upset with your family once they found out that you had contacted the family [sic] or were they unhappy with you even before that?” Ms. Diaz-Rivas responded: “No, they already were [mad] because they wanted more and
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more rent.” This testimony is supported by the undisputed fact that MS-13 “disappeared” Ms. Diaz-Rivas’ brother-in-law for refusing to pay rents before there was any motive to retaliate against the family for involving the authorities. I note that Ms. Diaz-Rivas also called an expert witness to testify that her family’s refusal to pay rents, apart from going to the authorities, put her at risk of persecution. See W.G.A. v. Sessions, 900 F.3d 957, 966 (7th Cir. 2018) (citing the “timing of the persecution” and expert reports to conclude that the applicant met the nexus requirement). This evidence strongly suggests that “[Ms. Diaz-Rivas’ family ties], standing alone, would have led [MS-13] to harm [her].” Parussimova, 555 F.3d at 741.
Ms. Diaz-Rivas’ statements and expert testimony, to my knowledge, are the only evidence in the record as to whether Ms. Diaz-Rivas would have been persecuted by MS-13 based only on her family ties. But that evidence is not mentioned or discussed, in that context, by the IJ or the BIA. Compare Zavaleta- Policiano, 873 F.3d at 248–49 (concluding that the BIA failed to address the applicant’s statement that MS–13 started threatening her immediately after her father fled to Mexico), with Gomez-Garcia v. Sessions, 861 F.3d 730, 734 (8th Cir. 2017) (affirming the BIA’s conclusion that the applicant’s political affiliation was not central because “[t]here [was] no evidence in the record that MS-13 threatened [the applicants] before they reported [the gang’s] burglary”).
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As the majority points out, we defer to the BIA’s interpretation of the facts, even if our own interpretation would support a different conclusion. We do not, however, defer to the agency’s determination that certain testimony did not warrant consideration. This is especially true if that testimony is the evidence in the record that the applicant’s alleged reason was central to her persecution. See W.G.A., 900 F.3d at 967; Zavaleta-Policiano, 873 F.3d at 248–49. It is our responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).
I also disagree with the majority’s repeated claim that, because MS-13 threatened Ms. Diaz-Rivas after she reported the disappearance, we can necessarily infer that that is the reason that MS-13 persecuted her. See Maj. Op. at 12–13. With our standard of review in mind, the IJ and the BIA did not cite the fact that MS-13 only threatened Ms. Diaz-Rivas after she reported her brother-in-law missing to conclude she did not meet the nexus requirement. Although the IJ and BIA noted the sequence of events leading to Ms. Diaz-Rivas’ claims, the majority now seizes on this undisputed chronological fact to support its new conclusion that Ms. Diaz- Rivas going to the authorities was the only central reason she was persecuted.
Moreover, the short timing between these events makes it impossible to conclude that MS-13 was not also motivated by her family’s refusal to pay rents. In early March of 2015, Ms. Diaz-Rivas’ brother-in-law refused to pay rents, causing
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the gang to quickly threaten and disappear him, and Ms. Diaz-Rivas reported his disappearance the very next day. By comparison, the majority cites Rivera, 487 F.3d at 823, for its timing argument, but in that case the persecution occurred “several years . . . after [the persecutor] would have imputed [the applicant’s] political opinion.” And to the extent that the majority points to Ms. Diaz-Rivas’ “own failure to pay ‘rent’” as another reason why she was persecuted, that argument contradicts the record. See Maj. Op. at 13. The IJ’s order and Ms. Diaz-Rivas’ testimony make clear that Ms. Diaz-Rivas’ brother-in-law, the patriarch of the family, refused to pay rents to MS-13, and Ms. Diaz-Rivas alleges that she was persecuted because of her family’s refusal to pay rents. See A000387, A000391 (“In this case, the respondent was never asked to pay any extortion. The demand was made to Felix, who is respondent’s brother-in-law.”). See also A000089, A000434.
For these reasons, I would hold that the BIA’s determination—that “[t]here is no indication [that MS–13] had an animus against [Ms. Diaz-Rivas] and her family members based on their biological ties, historical status, or other features unique to the family unit”—misapplies the “at least one central reason” standard and is not based on substantial evidence. I would therefore reverse the BIA’s determination that Ms. Diaz-Rivas’ family ties were not at least one central reason for her
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persecution and remand the case for the BIA to determine whether her family unit is a “particular social group” under the statute.1
III
Ms. Diaz-Rivas also contends that the Atlanta immigration court treats asylum claims dissimilarly compared to immigration courts around the country, in violation of her equal protection rights under the Fifth Amendment. Ms. Diaz-Rivas raised the same equal protection claim before the BIA, but the BIA dismissed it, stating that it “lack[ed] the authority to consider [it].” The BIA cited Matter of C-, 20 I. & N. Dec. 529, 532 (1992), where it ruled that an IJ and the BIA “lack jurisdiction to rule upon the constitutionality of the [Immigration and Nationality] Act and the regulations.” See also Johnson v. Robinson, 415 U.S. 361, 368 (1974) (noting “the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies”) (alteration omitted).
1 The majority notes that I do not resolve whether Ms. Diaz-Rivas’ family constitutes a “particular social group.” See Maj. Op. at 10 n.3. It seems to me that this is the correct approach. Like other circuits that have faced this issue, I would remand it to the BIA. See Oliva, 807 F.3d at 62; Flores- Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (collecting cases where the BIA addressed whether family was a particular social group). In any event, “every circuit to have considered the question has held that family ties can provide a basis for asylum.” Crespin–Valladares, 632 F.3d at 125. See also Matter of L-E-A-, 27 I. & N. Dec. 40, 43 (BIA 2017) (citing cases from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits). So, if the majority is looking for legal guidance on this issue, there is plenty of it.
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The prohibition on Article I tribunals adjudicating the constitutionality of a congressional enactment does not bar consideration of Ms. Diaz-Rivas’ equal protection claim. Ms. Diaz-Rivas does not argue that a federal law is unconstitutional, but rather that a particular immigration court is unconstitutionally discriminating against asylum applicants in the way that it applies a federal law. See McGrath v. Weinberger, 541 F.2d 249, 251 (10th Cir. 1976) (“A fundamental distinction must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation . . . . We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation.”) (quoting 3 K. Davis, Administrative Law Treatise § 20.04, at 74 (1958)). See also Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136, 1139 (3d Cir. 1979) (concluding that an Article I review commission had jurisdiction to consider a motion to suppress under the Fourth Amendment “not by reviewing the constitutionality of its statute but by interpreting the statute and by applying constitutional principles to specific facts”).
Based on my understanding of the relevant law, there is no general prohibition on the BIA considering constitutional issues, apart from constitutional challenges to particular statutes which would raise separation of powers concerns. In fact, the BIA has ruled on similar constitutional challenges in the past. See Matter of Awadh, 15
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I. & N. Dec. 775, 777 (BIA 1976) (ruling on the respondent’s claim that an IJ enforced a statute discriminatorily, but stating that it lacked jurisdiction to consider the constitutionality of the same statute). And other BIA opinions suggest that it has jurisdiction to consider some equal protection claims. See In Re Salazar-Regino, 23 I. & N. Dec. 223, 231–32 (BIA 2002); In Re Delia Lazarte-Valverd, 21 I. & N. Dec. 214, 219–21 (BIA 1996) (Schmidt, Chairman, concurring); Matter of Moreira, 17 I. & N. Dec. 370, 373 (BIA 1980); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). See also Matter of Gutierrez, 16 I. & N. Dec. 226, 227 (BIA 1977) (considering a Sixth Amendment claim).
In any event, we have jurisdiction to review constitutional claims raised during immigration proceedings. See 8 U.S.C. § 1252(a)(2)(D) (allowing the appropriate court of appeals to “review [ ] constitutional claims or questions of law raised upon a petition for review”); Moore v. Ashcroft, 251 F.3d 919, 923–24 (11th Cir. 2001) (considering an equal protection claim on appeal from the BIA). On appeal, Ms. Diaz-Rivas requests that we remand her asylum claims to the immigration court in San Francisco, California, where her attorneys are located. Although I do not believe we have ordered or encouraged the BIA to remand a case to another immigration court, at least one court has afforded similar relief. See Floroiu v. Gonzalez, 481 F.3d 970, 976 (7th Cir. 2007) (per curiam) (“strongly encourag[ing] the BIA to assign the [applicants’] case to a different judge on
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remand”); 28 U.S.C. § 2106 (granting appellate courts the power to “require such further proceedings to be had as may be just under the circumstances”).2
The due-process clause of the Fifth Amendment contains an implied equal protection component that prevents federal government officials from acting with discriminatory animus. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). “The constitutional guarantee of equal protection under the law has been held applicable to aliens as well as citizens for over a century.” Yeung v. I.N.S., 76 F.3d 337, 339 (11th Cir. 1995), as modified on reh’g (11th Cir. 1996) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886)). See also Plyler v. Doe, 457 U.S. 202, 210 (1982)
2 Another avenue for relief may be for Ms. Diaz-Rivas to file an action in an appropriate federal district court. For example, 5 U.S.C. § 702—a provision of the Administrative Procedure Act— provides that “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof, and [a]n action in a court of the United States seeking relief other than money damages and stating a claim” is not barred by sovereign immunity. A separate provision of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity[.]” § 706(2)(B). District courts have considered similar constitutional claims as violations of these provisions. See Stevens v. Holder, 950 F. Supp. 2d 1282, 1290–91 (N.D. Ga. 2013) (concluding that the plaintiff stated an equal protection claim based on an immigration judge excluding the plaintiff from certain hearings). See also CASA de Md., Inc. v. Trump, — F. Supp. 3d —, 2018 WL 6192367, at *1 (D. Md. Nov. 28, 2018) (claim that the government discriminatorily altered Temporary Protected Status designations, in violation of equal protection and the APA); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1092 (N.D. Cal. 2018) (same); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414 (D. Mass. 2018) (same). The possible existence of another avenue for relief, however, does not foreclose Ms. Diaz-Rivas’ current equal protection claim. In Babcock & Wilcox Co., 610 F.2d at 1136, for example, a party argued that an Article III court, as opposed to an Article I review commission, could better develop the factual record for a Fourth Amendment challenge to a search warrant. The Third Circuit disagreed, stating that the Article I commission could “consider motions to suppress evidence without acting beyond its jurisdiction.” Id. at 1139.
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(“[W]e have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.”). In this context, the Fifth Amendment protects an asylum applicant from “be[ing] intentionally treated differently from others similarly situated [when] there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
The majority concludes that Ms. Diaz-Rivas’ equal protection claim is foreclosed by binding precedent and that she failed to present evidence of discriminatory intent. I strongly disagree on both grounds: the precedent does not govern, and the evidence is more than sufficient.
First, the majority mistakenly relies on two published cases in which we have denied equal protection claims alleging that the Atlanta immigration court treated asylum applicants dissimilarly compared to other immigration courts. See Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218–19 (11th Cir. 2006); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006). Those cases do not control. In Zafar, 461 F.3d at 1367, we affirmed the dismissal of the petitioner’s claim that the Atlanta immigration court failed to administratively close certain immigration proceedings, when other immigration courts routinely did. We reasoned that the petitioner cited no authority to establish an equal protection violation and that there
was “no support in the record” for his argument. Id. A year later, in Haswannee, 39

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471 F.3d at 1218–19, we rejected an almost identical claim for the same reasons, citing our holding in Zafar.
Unlike the petitioners in Haswanee and Zafar, Ms. Diaz-Rivas has cited authority, outlined the relevant legal framework, and presented evidence to establish her equal protection claim. She alleged that (a) asylum applicants are treated differently at the Atlanta immigration court compared to immigration courts in other cities, and (b) the difference in treatment is for the purpose of discrimination. Ms. Diaz-Rivas then presented statistics showing that, from 2014 through 2016, the Atlanta immigration court only granted 2% of asylum claims while, over the same three-year period, immigration courts around the U.S. collectively granted 46% of asylum claims. These statistics did not exist when we rejected different (and conclusory) claims in Haswannee, 471 F.3d at 1218–19, and Zafar, 461 F.3d at 1367. That, by itself, makes Haswanee and Zafar distinguishable.
Second, Ms. Diaz-Rivas’ statistics constitute probative evidence of disparate treatment and discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 297–98 (1987); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977). “Of course, statistics do not tell the whole story.” United States v. City of Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980). “Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers [may]
afford at best an incomplete picture.” Harris v. Alabama, 513 U.S. 504, 513 (1995). 40

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But “while statistics alone usually cannot establish intentional discrimination, under certain limited circumstances they might.” Spencer v. Zant, 715 F.2d 1562, 1581 (11th Cir. 1983). See also Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982). “Sometimes a clear pattern, unexplainable on grounds other than [discrimination], emerges from the effect of the [government] action even when the governing legislation appears neutral on its face.” Arlington Heights, 429 U.S. at 266. In those cases, statistics showing discriminatory treatment can be “a telltale sign of purposeful discrimination.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977).
In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.
The government may well be able to explain why asylum applicants so rarely succeed in Atlanta, and, because undocumented immigrants are not a suspect class, any disparate treatment “[is] subject to minimal scrutiny under the rational basis standard of review.” Yeung, 76 F.3d at 339. At this stage, however, I am not aware
of a convincing basis to explain the disparity that Ms. Diaz-Rivas presents, and the 41

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government has not offered one. At the very least, these troubling statistics “indicate plainly enough that this Court should not accept,” United States v. Bethlehem Steel Corp., 315 U.S. 289, 333 (1942) (Frankfurter, J., dissenting), the government’s conclusory argument that this disparity merely results from “the inherent human biases of all judges.” Appellee’s Br. at 36. I add that, even if the government’s unsupported suggestion has a hint of truth, the situation remains deeply troubling, as it would appear that the immigration judges in Atlanta are inherently biased (the government’s phrasing) against asylum applicants in the same way.
On remand, I would order the BIA to consider the merits of Ms. Diaz-Rivas’ equal protection claim or further justify its conclusion that it lacks the jurisdiction to do so. To do otherwise is to ignore the very real possibility that “[a]ll is not well” in the Atlanta immigration court. William Shakespeare, Hamlet, Act I, Scene 2, Line 254 (1601).
IV
With respect, I dissent from the majority’s interpretation of the “at least one central reason” standard and its resolution of Ms. Diaz-Rivas’ equal protection claim.

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In truth, this well-documented family-based persecution case should have been granted and probably would have been granted in many Immigration Courts. But, instead of being granted the protection she deserved, this respondent was subjected to the notorious “asylum free zone” created by the judges of the Atlanta Immigration Court, enabled by the BIA, promoted by the DOJ, and encouraged and empowered by some Article III Circuit Judges.

As cogently pointed out by Judge Jordan, his colleagues 1) grossly misconstrued and rewrote the “one central reason” provision of the asylum statute against the respondent, and 2) swept under the carpet the glaring evidence of constitutional violations of equal protection by EOIR, the Atlanta Immigration Court, the BIA, and the DOJ. To make matters worse, instead of taking the bold public action necessary to stop these outrageous legal and constitutional abuses, the majority made this an “unpublished” decision to obscure the unseemly evidence of what they were doing.

Significantly, in his footnote 2, Judge Jordan points out that there could be other means of challenging the Atlanta Immigration Court’s unconstitutional actions: through an APA action in U.S. District Court. Advocates should vigorously pursue all possible avenues to bring an end to this well-documented abuse of authority in Atlanta (and some other Immigration Courts with asylum grant rates so unrealistically low as to show a pattern of anti-asylum bias.)

And what is the purpose of the BIA if it fails to address chronic “refugee roulette” and unconstitutional behavior by Immigration Judges? Not much that I can see!

Might as well save time and money and just send all appeals from Immigration Judges to the U.S. Circuit Courts of Appeal. End the charade that the BIA is some sort of “expert tribunal” whose decisions are entitled to “deference.” Obviously, Judge Jordan understands immigration and constitutional law much better than the BIA (and his colleagues in the majority) and has the courage to speak out against glaring judicial abuses and lack of professionalism among some Immigration Judges that the BIA tolerates and the DOJ actively encourages.

The majority’s clearly flawed decision could be a “death warrant” for an innocent woman entitled to our protection. Worse yet, miscarriages of justice such as this directed against vulnerable asylum seekers go on every day at every level of our justice system. They advance the Administration’s “Big Lie”– that most asylum seekers from the Northern Triangle do not have valid claims for asylum. To the contrary, many of the claims are valid — but, the judicial system for adjudicating them is not valid — it isn’t fair, and it isn’t impartial as this case well illustrates.

Under a fair, impartial, and objective judicial system, many more claims like this from the Northern Triangle  would be granted — perhaps a majority. But we can’t tell because the current system is so unfairly biased against asylum seekers. There is no doubt that there would be more grants than are happening today.

Indeed, many observers are failing to ask the real questionswith conditions for refugees worsening throughout the world, why are U.S. asylum grant rates inexplicably falling?  Why are such a low percentage of individuals determined to have “credible fear” of persecution eventually granted asylum by Immigration Judges?

Rather than the bogus narratives being presented by the Administration and repeated by folks like Senator Ron Johnson (R-WI) that the system is being “gamed” by asylum seekers, there appears to be a much more reasonable explanation — that the EOIR system has been “gamed” by anti-asylum politicos in this and previous Administrations to artificially and illegally suppress asylum grant rates by Immigration Judges particularly for women, children, and other vulnerable individuals from the Northern Triangle.

Cases like Ms. Diaz-Rivas’s are actually fairly common. Granting them in accordance with law would send the proper signals and would actually lead to a fairer and more efficient system where asylum law would be correctly applied and many more cases could be granted by Asylum Officers without ever reaching Immigration Court or granted in short hearings before Immigration Judges actually committed to giving asylum seekers a fair shake.

Beneath all of the intentionally cruel and unnecessary detention, coercion, deprivation of counsel, hate narratives, and failures of due process and professionalism in our treatment of asylum seekers lies an even uglier truth: judges at all levels of our system, often at the urging of political officials, are encouraged and enabled to skew, misinterpret, and misapply the law and often distort facts to deny protection that should be granted in a fair and impartial system. 

It’s important that cases like this one be “brought into the light” and that judicial abdications of duty be documented. The New Due Process Army is making the historical record of how asylum seekers are being mistreated and will keep confronting judges and legislators with the facts, evidence, and the law until the system finally delivers on its unfulfilled promise “of guaranteeing fairness and Due Process for all” — and that means granting legal protection to even the most vulnerable and endangered among us! The only question is how many innocents will die, be raped, beaten, tortured, extorted, exploited, imprisoned, forced to live underground, or otherwise persecuted and abused before our system finally gets it right?

PWS

04-20-19