Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowakski reports from LexisNexis Immigration Community:
CA3 on Asylum, Social Group, El Salvador: Guzman Orellana v. Barr
“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”
[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]
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*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.
Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.
Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!
This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.
Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?
Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.
More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!
The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.
Due Process Forever! Captive Courts & Complicit Judges, Never!
PWS
04-18-20