HON. JEFFREY S. CHASE:  The Message From Barr’s Improper Intervention in Matter of R-A-F-: Forget The Law, You Are My Stooges! — Only An Independent Article I Immigration Court Will End This Mockery of Due Process & Fundamental Fairness!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://www.jeffreyschase.com/blog/2020/3/1/the-real-message-of-matter-of-r-a-f-

The Real Message of Matter of R-A-F-

On February 26, the Attorney General (or more likely, someone authorized to speak on his behalf) issued a precedent decision in Matter of R-A-F-.  My take on the import of this decision seems to be different than most.  Let me first provide some background.

Most people seeking asylum in this country also apply for a lesser form of protection called withholding of removal under Article III of the U.N. Convention Against Torture (“CAT” for short).  Whereas asylum provides a path to U.S. permanent residence, CAT only prevents someone with a deportation order from being sent to a country in which they are likely to suffer torture.  CAT generally only comes into play where the applicant isn’t found eligible for asylum, something which is happening more frequently as the present administration churns out new bars and obstacles to eligibility.

To provide an example, someone who establishes they will likely be murdered or raped if returned to their country may be barred from even applying for asylum if they didn’t file their application within one year of their arrival in this country, or if they did not apply for asylum in a third country they passed through en route to the southern border.  Even if allowed to apply, they may still be denied asylum if the immigration judge does not determine that their persecution would be for the proper motive.  But while our asylum laws as written allow some leeway as to whom the government will afford permanent status in the U.S., the same government is bound by international treaty not to send an individual to a place where they would suffer persecution.  It is often CAT that fills the gap between those who are not permitted to remain permanently but should nevertheless not be repatriated.

The U.S. was one of 154 countries to sign the U.N. Convention Against Torture.  However, it was the only country to add a “specific intent” requirement to its internal regulations implementing the convention, requiring a finding that the torture “be specifically intended to inflict severe…pain and suffering,” and specifically excluding acts that result “in unanticipated or unintended severity of pain or suffering.”1  The specific intent requirement seriously undermines the purpose of the law, as many are forced to rely on CAT specifically because they couldn’t prove the proper intent of their persecutor that is required for asylum.  It is thus necessary for the specific intent provision to be interpreted in the least restrictive manner for CAT to function in its intended way.

In 2002, the BIA had its first chance to interpret how the specific intent requirement should be applied in a case called Matter of J-E-.  At the time, the BIA was comprised of judges holding diverse views of the law.  As a result, the Board was sharply split on the issue.  The more restrictive reading won out, but 6 judges dissented.2  Five of them were no longer on the BIA a year later following then Attorney General John Ashcroft’s infamous purge of Board judges whom he viewed as too liberal.

An important point that was glossed over in the majority opinion in Matter of J-E- and its progeny is that where governments do intentionally maintain horrific conditions in its prisons or mental institutions that are intended to punish those institution’s populations, they tend to be smart enough not to admit to it.  To illustrate this point, I refer to a November 12, 2019 report of the Washington Post finding that although the Trump Administration characterized its outrageous treatment of unaccompanied immigrant children as an unintended consequence of the volume of immigrants seeking asylum at the border, such outcome “also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions.”

Cognisant of this fact, in his dissenting opinion in Matter of J-E-, Hon. Paul W. Schmidt found the specific intent requirement to be satisfied by a “clearly documented acceptance of extreme mistreatment amounting to torture as a routine aspect of detention in Haiti.”  Concluding that the Haitian government “cannot claim it does not know what happens to detainees in its prisons,” Judge Schmidt found the specific intent requirement to have been met.  Hon. Lory D. Rosenberg began her companion dissenting opinion in the case by quoting from the Second Circuit that “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture.”3

In late 2018, the BIA again rejected such arguments and reiterated the majority view of J-E- in another precedent decision, Matter of J-G-R-P-.  This time, the BIA did so in a three-judge panel decision in which there were no dissents.  As this decision was published less than 16 months prior to the A.G.’s decision in R-A-F-, there was really no need at the time the A.G. issued R-A-F- for another decision on the topic.

I thus believe the real motive behind issuing the decision was not to give guidance, but rather to serve warning.  While published precedential decisions have always received broad attention, individual BIA appellate judges have felt safe affording relief in sympathetic cases  in unpublished decisions where the outcome is generally known only to the parties involved.

A colleague recently made me aware of a job posting within EOIR for an attorney to work not for the Immigration Courts or the BIA, but rather within the office of EOIR’s director, James McHenry, who has imposed the administration’s political will on the agency’s judges with a heavy hand.  The job description included “review(ing) court cases including appeals cases for adherence to procedural requirements, proper interpretation and application of statutes, regulations and precedents,” and “recommend(ing) action on precedent-setting issues to senior officials.”  In other words, McHenry was looking to hire what is commonly referred to as a “snitch” to sort through decisions that might not pass muster with the likes of Stephen Miller, and flag them for corrective action.  One such shameless staffer apparently flagged R-A-F- in this manner, and through the resulting A.G. certification, the case will serve as a cautionary tale for a group of BIA judges that certainly hasn’t forgotten the fate of the Matter of J-E- dissenters.

The decision in question was issued in September by Appellate Immigration Judge Linda Wendtland, whose retirement party was held this past week.  Judge Wendtland is by no means a liberal, and worked the majority of her career for the Department of Justice; prior to her appointment to the BIA, she had been an assistant director with the DOJ’s Office of Immigration Litigation.  But Judge Wendtland is highly knowledgeable of the law, and is reasonable and fair (all endangered qualities on the present BIA).

Looking to Judge Wendtland’s decision below, it would be difficult to find a more sympathetic applicant than R-A-F-.  The respondent seeking CAT protection is in his 70s, and suffers from Parkinson’s disease, dementia, Major Depressive Disorder, traumatic brain injury, PTSD, and chronic kidney disease.  The evidence of record established that if returned to his native Mexico, R-A-F- faced a significant risk of being institutionalized in a facility in which he could be subject to physical and sexual abuse, physical and chemical restraints, and containment in cages and isolation rooms, all without access to justice.  Judge Wendtland agreed with the Immigration Judge that such treatment rose to the definition of torture.

Based on her reputation and body of work, Judge Wendtland is undoubtedly someone who had earned the right to have her decision in R-A-F- accorded deference.  However, these are different times.  And instead of deference, the A.G. (who, of course, knows next to nothing about immigration law or the specific matter in question) chose to unceremoniously refer to himself and then slam the BIA’s decision.  The legacy of such action will be fully felt the next time a single judge at the BIA has the opportunity to affirm a similarly sympathetic grant of relief, but will instead choose not to do so out of fear and self-preservation.  This is not how justice should be afforded to our country’s most vulnerable population.

Notes:

  1. 8 C.F.R. § 1208.18(a)(5).
  2. I am proud to note that the authors of the two dissenting opinions, Paul W. Schmidt and Lory D. Rosenberg, and former BIA judge Cecelia Espenoza, who joined in both dissents, are presently members of the Round Table of Former Immigration Judges.
  3. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

Copyright 2020 Jeffrey S. Chase.  All rights reserved.

Reprinted with permission.

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

Thanks, Jeffrey my friend,  for the “shout out” for the dissents of Lory, Cecelia, and me in Matter of J-E-!

I recently reached the same conclusion as Jeffrey about R-A-F-although in less scholarly, measured, and elegant terms: https://immigrationcourtside.com/2020/02/28/barr-to-his-wholly-owned-immigration-judges-just-deny-cat-protection-any-ol-ground-will-do-matter-of-r-a-f-27-in-dec-778-a-g-2020/.

I have said before that I always respected Judge Wendtland. She was a scholarly, industrious, fair-minded, “center right” jurist. While I had been exiled from the BIA before she was appointed, she seemed like a judge with whom I would have enjoyed having a continuing dialogue, much like my more conservative, yet thoughtful and scholarly, friend the late Judge Lauri Steven Filppu. And, we probably would have ended up on the same side of a number of issues coming before the BIA. 

It’s both disheartening and enraging to see that even “conscientious conservative” jurists like Judge Wendtland get no real respect and deference from the likes of Billy Barr and his toady colleagues. And, the function of having Director McHenry “ride heard” on the BIA is both unethical and stupid, since he is not an Immigraton Judge himself. Indeed, the gross incompetence with which todays’ EOIR is managed suggests that the Director’s sole role should be to attend to the failing administrative and support structure of the Immigration Courts in a nonpartisan, apolitical manner under the direction of, not overseeing, the BIA Chair and the Chief Immigration Judge. 

This system is broken! Every time an Article III Circuit Court signs off on an order of removal resulting from this unconstitutional, unethical, and grossly mismanaged morass, those Article III Judges enable the regime’s continuing fraud, waste, and abuse, and shirk their sworn constitutional duties.

PWS

03-02-20

WHAT DOESN’T HE UNDERSTAND ABOUT “ILLEGAL?” —“Cooch Cooch” Found To Have “Illegally Entered” USCIS Position! — Some Illegal White Nationalist, Anti-Asylum Directives Cancelled!

Judge Randy Moss
Hon. Randy Moss
U.S. District Judge
Washington, DC
Randy Moss
Randy Moss
NFL Hall of Fame Wide Receiver (Todd Buchanan / Pioneer Press)
"Cooch Cooch"
“Cooch Cooch” Rewrites America’s Welcoming Message for White Nationalist Nation

L.L.-M. V. Cuccinelli, D. D.C. (Judge Moss), 03-01-20

U.S. District Judge Randy Moss (not to be confused with the NFL hall of fame receiver, one-time “bad boy,” and now commentator of the same name) ruled that Cooch Cooch was illegally appointed to his position of Acting Director of USCIS, thereby invalidating some of his written anti-asylum directives aimed at denying fair processing during the credible fear process and perhaps killing brown-skinned asylum seekers. 

KEY QUOTE FROM JUDGE MOSS’S OPINION:

The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.

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

Although only tangental to the actual result reached by Judge Moss, his detailed description of how the regime has unconstitutionally and immorally skewed the credible fear process to screw asylum seekers, largely based on their race, as opposed to acting in good faith to insure that needed protection is granted under U.S. law without regard to political pandering or racial bias, should outrage every American. It also points out how, even though this has been going on since June 2019, and thousands of individuals’ lives have been endangered by this illegal and immoral action, Federal Courts are only now beginning to “scratch the surface” of the regime’s invidious assault on asylum seekers from south of our border.

Indeed, in a move likely to warm the hearts (if, in fact, they have such organs) of Trumpist Judges like Gorsuch and Thomas, Judge Moss limited his order to the five individual named plaintiffs rather than entering the highly controversial, yet totally justified in cases like this, “nationwide injunction.” That means that thousands of similarly situated individuals who were screwed by Cooch Cooch’s scofflaw behavior will have to sue individually to get the law properly applied to them. That assumes that they are still alive and able to sue.

While the decision correctly points to numerous serious defects in the regime’s operation of USCIS, the practical effects might remain small. The regime can always seek to have it undone by the D.C. Circuit or the compliant “J.R. Five” on the Supremes. They also should be able to find some Senate-confirmed politico who was on duty on June 1, 2019 and simply have Trump appoint him or her “acting” and order them to re-issue Cooch’s “Miller-approved” White Nationalist directives on pain of dismissal. Surely, there is never a shortage of toadies among Trump’s gang of sycophants.

Clearly, the only real way to save our democracy and save the lives we should be saving is to vote for regime change, at all levels, this November. Otherwise, we might all find ourselves “Cooched” at some point in the future! 

For now, maybe “Cooch Cooch” should be required to join his fellow “illegals” fighting for their existence in squalor and cruel and inhumane conditions under bridges and on street corners on the Mexican side of the border! Or, perhaps he should be “orbited” to Guatemala, El Salvador, or Honduras to pursue his claims from there! One truly scary thing: “Cooch Cooch” was actually once the top “legal” officer of the Commonwealth of Virginia, serving a purely awful term as Attorney General. Thankfully, we Virginia voters had the good sense to send him packing when he ran for Governor!

PWS

03-01-20