https://www.justice.gov/eoir/page/file/1446396/download
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
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“Inside Baseball”⚾️ — The human, administrative, and taxpayer costs of the BIA’s unwillingness to uphold the statute in the face of DHS and EOIR “Management” intransigence — and their disregard for clear warning signals from the Supremes — are unfathionable to anyone outside this totally dysfunctional and out of control system! See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-stop-time-rule-quebrado-cantor-v-garland.
Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?
The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!
In fewer than five minutes of “internet research,” I found three authoritative pieces of evidence that should have been sufficient to show an endemic, ongoing racial and psg persecution of Indigenous Guatemalans and a total failure of state protection. See, e.g., https://www.govinfo.gov/content/pkg/USCOURTS-ca6-18-03500/pdf/USCOURTS-ca6-18-03500-0.pdf; https://monthlyreview.org/2020/09/01/a-violent-guatemala/; https://minorityrights.org/trends2018/guatemala/.
This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A).
With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!
The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!
The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration.
We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system.
Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t?
This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended!
Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.
Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock!
They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based?
Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most!
Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation rather than imposing more “guaranteed to fail” enforcement-only gimmicks?
Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.
And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!
Here’s a still-timely article from Professor Bill Hing (ImmigrationProf Blog) about how we are repeating our past mistakes of mistreating Central American asylum seekers. https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol17/iss2/5/
The same is true of Haitians seeking asylum. https://lawprofessors.typepad.com/immigration/2021/11/biden-is-replaying-a-forgotten-us-atrocity-against-haitian-refugees.html
An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!
The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!
🇺🇸Due Process Forever!
PWS
11-05-21
Thanks Paul for a very thoughtful posting. “Grudging” is the right word to describe the BIA’s treatment of the Kanjobal Indians persecution claim. I still remember a conversation with an Immigration Judge from the LA area, whose name I’ve happily forgotten. All I remember is that EOIR had to pay $20K for his anti-immigrant remarks from the bench. But I digress. I’ve never claimed to be an intellectual “big thoughts” legal analyst. My shtick as a judge was always that I was always willing to work hard to give every immigrant whose case was before me an “Opportunity to be Heard”. And then I’d try my best to make the right decision.
So I was shocked as a BIA staff attorney 1988 when that unnamed IJ told me that if he granted asylum to a Kanjobal Indian, he’d have to grant asylum to every Guatemalan Kanjobal Indian that appeared before him on an asylum application. As if such a result was somehow unthinkable! But isn’t such a result one of the primary purposes of the BIA. Uniformity. Besides ensuring that every immigration decision below was rightly decided, I often also heard from EOIR founding leader David Milhollan that BIA’s role was to provide guidance to the IJs below so cases would be uniformly and correctly decided. at the earliest stage, so that every immigration application did not waste scarce EOIR decision making resources. Instead, we still continue to see a system, like “Squid games” that accepts somebody will eventually win, but after a process where most applicants lose.
What’s wrong with accepting that at a time when our Democracy is under threat from mindless Trumpism, we need to be generous to average people who appreciate the American Dream? Just like mid 19th Century European farmers devastated by potato famines and declining demand for linen clothing after Eli Whitney invented the cotton gin, saw the possibilities in the USA rich soil and empty Midwest. Lncoln saw it too. 1/ The More the Merrier. So I dedicated my career, first as a BIA staff attorney, later as IJ and Board Member, to generously and broadly deciding cases in favor of members of groups that sought the American promise: Iranians, Iraquis, Bahais, Afghans, Haitians, Salvadorans, Nicaraguans, etc. They all came to the USA seeking the American Promise, Jefferson’s “Life, Liberty and the Pursuit of Happiness”.
So I thank you for noting how while grudgingly accepting the Supreme Court’s ruling on the “Stop Time” rule, BIA nonetheless passed on an opportunity to once and for all revisit the refugee claims of one of the most persecuted groups of asylum applicants, Kanjobal Maya Indians. BIA knew it had to reverse its previous “Stop Time” precedents after the Supreme Court case. But it once again failed to provide guidance to asylum officers, IJs and others that would reduce BIA’s caseload.
G
1/ Disclosure. My in-laws family name is Leinen which in German means Linen. Some also made excellent beer. Leinenkugel.
Amen, Gus!
Behind the veneer of “judicial process” at EOIR, is a culture that doesn’t accept a properly generous application of asylum laws to “protect, not reject.” Scheming to reject involves making the law unnecessarily complex so that grantable claims can be “nitpicked to death” on hyper technical grounds (see “nexus”) that takes the focus off the demonstrable harm and danger facing applicants.
These are all reasons why over-populating the Immigration Judiciary with those with enforcement and bureaucratic backgrounds — while excluding “practical scholars” who could combine efficiency with fairness — has been an unmitigated disaster! The last group of IJ appointments showed some break from these problematic selections. But, I think the system is so far out of whack that “onesies and twosies” won’t fix the toxic imbalance and the gross inconsistencies in “judging” at EOIR.
DPF,
PWS
Very Good Paul. “Making the law unnecessarily complex so that grantable claims can be “nitpicked to death” on hyper technical grounds (see “nexus”) that takes the focus off the demonstrable harm and danger facing applicants.”
Been there, done that. One Trait of being an EOIR Tower wallflower myself is the glib pleasure of maneuvering along all the reification we do with applications for relief. The fact that the applicant does clearly face a “well founded fear to life or freedom” quickly becomes an afterthought when imagining why the underlying reason for the fear was somehow not “central”.
Kinda like being 5 ft 10′ and trying to dunk on Dikembe Mutombo. Not quite like trying to dunk on Bill Russell, greatest rim defender ever. But Mutombo can easily make it clear “not today”, “not in my house” and look dominating. And so can the average BIA staff attorney say NO, on most cases with a panel majority’s encouragement.