Domestic Violence – Page 20 – immigrationcourtside.com

HON. JEFFREY CHASE WITH “LAW YOU CAN USE” TO FORCE THIS ADMINISTRATION TO RECOGNIZE REFUGEES FROM THE NORTHERN TRIANGLE — Yes, Many Recently Arrived Refugees From The Northern Triangle Qualify As “Political” Refugees – Here’s How To Argue & Support Their Cases!

https://www.jeffreyschase.com/blog/2018/6/3/3rd-generation-gangs-and-political-opinion

Jun 3 3rd-Generation Gangs and Political Opinion

When Attorney General Jeff Sessions issues his decision in Matter of A-B- (the case he certified to himself to decide whether “being a victim of private criminal activity” can constitute a particular social group for asylum purposes), it may negatively impact those asylum applicants who fear gang violence on account of their membership in a particular social group. Attorneys representing such claimants should consider whether their clients may alternatively claim a well-founded fear of persecution based on their political opinion under a “third-generation gang” theory, supported by country condition evidence.

In their article ‘Third Generation’ Gangs, Warfare in Central America, and Refugee Law’s Political Opinion Ground,1 Deborah Anker and Palmer Lawrence make a very important point: that “the Refugee Convention’s concept of political opinion incorporates ‘any opinion on any matter in which the machinery of the State, government, and policy may be engaged,’ or that of other persecutory agents where the state is unwilling or unable to provide protection” (citing Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 746 (Can.)).

Relying on this broad interpretation of political opinion, Anker and Lawrence next note that some military and law enforcement experts have concluded that the larger Central American gangs (including MS-13 and Mara 18) “have developed a degree of politicization, sophistication, and international reach to qualify them as ‘third generation gangs,’” which “function as de facto governments, controlling significant territory (competing with the state for power).” Anker and Lawrence cite Lieutenant Colonel Howard L. Gray, Gangs and Transnational Criminals Threaten Central American Stability, 7 U.S. Army War College, Strategy Research Project (2009)); in documenting such claims, practitioners should also reference John P. Sullivan and Robert J. Bunker, “Third Generation Gang Studies: An Introduction,” 14-4 Journal of Gang Research 1 (Summer 2007), and “Third General Gangs Strategic Note No. 1: Mara Salvatrucha (MS-13) 500 Man Commando Unit Planned for El Salvador,” Small Wars Journal, Sept. 10, 2016. The last article quotes Douglas Farah, Visiting Senior Fellow, National Defense University Center for Complex Operations as stating that “The MS has strong political and military ambitions and now views itself as political/military rather than a gang…MS 13 now has troops, weapons, and a cause…efforts to form a joint force with the 18 is less likely but both sides are in discussion to at least have lines of communication open.”2

Under the definition of political opinion cited above, gangs such as MS-13 and Mara 18 are at least other persecutory agents from which the state is unable or unwilling to provide protection. Such gangs might also be the de facto “state” itself in areas they control. The idea that opinions or matters that engage such gangs might constitute political opinion finds support from the Office of the United Nations High Commissioner for Refugees (UNHCR), which has recently published Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Guatemala (January 2018), El Salvador (March 2016), and Honduras (July 2016). These can be found on the website Refworld.org. UNHCR has been described as “the entity that most resembles a supervisory body of the [1951] Convention.”3 Although U.S. courts and the BIA have been inconsistent in the deference accorded to its opinions, given the clearly stated intent of Congress in passing the Refugee Act of 1980 to conform U.S. asylum law to the language of the 1951 Convention (which was binding on the U.S. based on its ratification of the 1967 Protocol Relating to the Status of Refugees), it has been argued that courts should defer more consistently to UNHCR’s interpretations of the Convention’s provisions.4

UNHCR’s 2016 Eligibility Guidelines for El Salvador includes an “Assessment of International Protection Needs of Asylum-seekers from El Salvador.” The agency concludes that “depending on the particular circumstances of the case, UNHCR considers that persons perceived by a gang as contravening its rules or resisting its authority may be in need of international protection on the grounds of their (imputed) political opinion…”5 The UNHCR Guidelines report at p. 12 that “gangs are reported to exercise extraordinary levels of social control over the population of their territories.” According to UNHCR, residents in such gang-controlled zones “are reportedly required to ‘look, listen and keep quiet’ (‘mirar, oir, callar’), and often face a plethora of gang-imposed restrictions on who they can talk with and what about, what time they must be inside their homes, where they can walk or go to school, who they can visit and who can visit them, what they can wear, and even, reportedly, the color of their hair.”

At p. 28 of its Guidelines, UNHCR states:

The ground of political opinion needs to reflect the reality of the specific geographical, historical, political, legal, judicial, and sociocultural context of the country of origin. In contexts such as that in El Salvador, expressing objections to the activities of gangs may be considered as amounting to an opinion that is critical of the methods and policies of those in control and, thus, constitute a “political opinion” within the meaning of the refugee definition. For example, individuals who resist being recruited by a gang, or who refuse to comply with demands made by the gangs, such as demands to pay extortion money, may be perceived to hold a political opinion.

Anker and Lawrence note in their conclusion that many denials of such claims “reflect adjudicators’ and courts’ lack of knowledge (often because they are not presented with evidence) of regarding the political nature and context of the present conflict in that region.” This is an extremely important point. The U.S. Court of Appeals for the Second Circuit stated in Castro v. Holder6 that “a claim of political persecution cannot be evaluated in a vacuum….” The court noted that it has “remanded cases in which the agency denied an application for asylum based on its failure to properly engage in the “complex and contextual factual inquiry” that such claims often require…Nevertheless, in this case, the agency has once again embraced an ‘impoverished view of what political opinions are, especially in a country where certain democratic rights have only a tenuous hold’” in denying the asylum claim “without any coherent examination of the surrounding political environment.”

Immigration judges dealing with seriously overloaded dockets, limited authority to grant continuances, and completion quotas will be hard pressed to engage in “complex and contextual factual inquiry.” Practitioners should do their best to educate adjudicators through country condition evidence, expert testimony, memoranda of law, and through detailed direct examination of the asylum-seeker.

Practitioners should also rely on the BIA’s precedent decision in Matter of S-P-, 21 I&N Dec. 486 (BIA 1996), which held that imputed political opinion may satisfy the refugee definition (relying in part on the UNHCR Handbook and Procedures for Determining Refugee Status under the 1951 Convention; and that asylum applicants need not show conclusively why persecution may occur, but need only produce facts to establish that a reasonable person would fear that the danger arises on account of a protected ground. The Board in S-P- also set forth five elements to consider in identifying motive, including “indications in the particular case that the abuse was directed toward modifying or punishing opinion rather than conduct (e.g., statements or actions by the perpetrators or abuse out of proportion to nonpolitical ends)” (Id. at 494). With the support of the UNHCR Guidelines, a strong argument can be made that death threats or actual killings for offenses such as “looking mistrustfully at a gang member,” “wearing certain clothing.” or “accidentally turning up uninvited in a gang zone” constitute “statements or actions…out of proportion to nonpolitical ends” under the criteria found in Matter of S-P-.7

Where another motive exists for the feared harm, practitioners should argue that mixed motives will support a grant of asylum where one of the motives is tethered to a statutory ground. See Matter of S-P-, supra at 495. In Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994), the U.S. Court of Appeals for the Second Circuit responded to INS’ argument that a labor union leader could not establish a nexus to political opinion because his dispute with the Guatemalan government was economic in nature by finding “any attempt to unravel economic from political motives is untenable in this case.” The court concluded that the petitioner’s union activities “imply a political opinion,” concluding that “the Government’s view of what constitutes a political opinion is too narrow.” Or, as Anker and Lawrence explain, “gangs can, for example, view a person who refuses extortion as an enemy opposing them and, at the same time, also want the funds.”

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes:

1. 14-10 Immigration Briefings 1 (October 2014).

2. I first heard Farah speak at a country condition training on gang violence in the Northern Triangle held by USCIS for its asylum officers; at my invitation, Farah was a speaker on the same topic at the 2015 EOIR Training Conference for its immigration judges and BIA staff.

3. American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis (Note), 131 HARVARD L.R. 1399 (March 2018).

4. See, e.g., American Courts and the U.N. High Commissioner for Refugees, supra; Bassina Farbenblum, Executive Deference in U.S. Refugee Law: Internationalist Paths Through and Beyond Chevron,” 60 DUKE L.J. 1059 (2011); Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 BERKELEY J. INT’L L. 1 (1997).

5. UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from El Salvador (March 2016) at 30. http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=search&docid=56e706e94&skip=0&query=guidelines%20on%20&coi=SLV

6. 597 F.3d 93 (2d Cir. 2010).

7. See UNHCR Guidelines on El Salvador at 29; Matter of S-P-, supra at 494.

JEFF CHASE

LEGAL ANALYSIS YOU CAN USE FROM JASON DZUBOW AT THE ASYLUMIST: “INTERNATIONAL GOLD STANDARD” TO ANTI-ASYLUM SCREED – The Disturbing Fall Of U.S. State Department Country Reports & Why Advocates Must 1) Disabuse Courts Of The View That They Are Reliable; & 2) Develop & Present Objective Alternatives

http://www.asylumist.com/2018/05/02/disingenuous-state-department-report-seeks-to-block-refugee-women/

Disingenuous State Department Report Seeks to Block Refugee Women

by JASON DZUBOW on MAY 2, 2018

The 2017 State Department Country Reports on Human Rights Practices is out, and the news is not good. The Report makes clear that the Department of State (“DOS”) has joined our government’s effort to block asylum seekers by any means necessary–including undermining their claims by lying about conditions in the home countries.

A lie is a lie, no matter how many times they try to tell you otherwise.

Let’s start with a bit about the Report itself. Each year, the State Department issues a human rights report for every country in the world. Information in the Report is gleaned from U.S. diplomats “in country,” and from other sources. The U.S. government uses the Reports in various ways, including to help evaluate asylum cases. So when a Report indicates that country conditions are safe, it becomes more difficult for asylum seekers to succeed with their claims.

There have always been issues with these Reports. From the point of view of advocates like me, the Reports sometimes minimize a country’s human rights problems. When that happens, we can submit other evidence–NGO reports, expert witness reports, news articles–to show that our clients face danger despite the optimistic picture painted by the DOS Report. But the fact is, whatever other evidence we submit, the DOS Report carries a lot of weight. It’s certainly not impossible to win an asylum case where the Report is not supportive, but it is more difficult. I imagine that’s doubly true for pro se asylum applicants, who might not be aware of the Report, and might not submit country condition information to overcome it.

That’s why this year’s DOS Report is so disappointing, especially with regards to certain populations. The group I am concerned with today is female asylum seekers from the Northern Triangle (El Salvador, Guatemala, and Honduras). Countries in the Northern Triangle are very dangerous for women. As a result, many women from this region have come to the United States in search of protection.

Over the past two decades, the U.S. government has grudgingly recognized that some such women meet the definition of refugee. But even so, it is still very difficult for most such women–especially if they are unrepresented–to navigate the convoluted path to asylum.

The Trump Administration is working on several fronts to make it even more difficult for women from the Northern Triangle to obtain asylum. For one thing, the Attorney General seems to be reconsidering precedential case law that has cracked open the door for female asylum seekers. He is also moving to charge some “illegal border crossers” with crimes (though it is legal to seek asylum at a port of entry). And now, the 2017 DOS Report is undercutting the factual basis for such claims by whitewashing the dangerous conditions faced by women in Central America.

Just looking at some basic statistics, it’s obvious that something is up. The below chart compares the number of words in the “Women” portions of the 2016 and 2017 DOS Reports for Northern Triangle countries. In each case, the length of the Women’s section has been dramatically reduced:

Country 2016 Report 2017 Report % Reduction

El Salvador 1364 423 69%

Guatemala 1212 283 77%

Honduras 1235 365 70%

As you can see, the “Women” sections of the 2017 Reports are more than 2/3 shorter than in the 2016 Reports. But numbers alone tell only part of the story. Let’s look at some of what the DOS has eliminated from the 2017 Report in the sub-section called “Rape and Domestic Violence” (and, by the way, DOS has entirely eliminated the portion of the Report devoted to “Reproductive Rights,” but that’s a story for another day). The Report for Honduras is typical, and so we’ll use that as an example.

The 2017 Report for Honduras states:

The law criminalizes all forms of rape of men or women, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. The penalties for rape range from three to nine years’ imprisonment, and the courts enforced these penalties.

Sounds pretty good, aye? The government of Honduras seems to be prosecuting rapists, including spouse-rapists, and the penalties for rape are significant. But here are a few lines from the 2016 Report that didn’t make it into the most recent version:

Violence against women and impunity for perpetrators continued to be a serious problem…. Rape was a serious and pervasive societal problem. The law criminalizes all forms of rape, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. Prosecutors treat accusations of spousal rape somewhat differently, however, and evaluate such charges on a case-by-case basis…. Violence between domestic and intimate partners continued to be widespread…. In March 2015 the UN special rapporteur on violence against women expressed concern that most women in the country remained marginalized, discriminated against, and at high risk of being subjected to human rights violations, including violence and violations of their sexual and reproductive rights….

So basically what we have is this: The 2017 Report is not a human rights report at all. Rather, it is a report on the state of the law in Honduras. Of course, when the law is not enforced and persecutors enjoy impunity (as indicated in the 2016 Report), laws on the books are not so relevant (and it’s really quite a bit worse than what I’ve indicated here, since the 2016 Report already minimized the violent environment in Honduras–for this reason, in our cases, we often rely on the more honest U.S. Travel Advisory and the OSAC Crime & Safety Report, both created by DOS for U.S. citizens traveling abroad).

How this new Report will impact asylum seekers, we don’t yet know. At a minimum, people will need to supplement their applications with evidence to overcome the rosy picture painted by the DOS Report, and for those asylum seekers who are unable to obtain such evidence, the likelihood of a successful outcome is further reduced.

I’ve said this before, and I will say it again here: What bother’s me most about the Trump Administration’s efforts to block asylum seekers is not that they are making it more difficult to obtain protection–they were elected on a restrictionist platform and they are doing what they said they would do. What bother’s me most is the blatant dishonesty of this Administration, and now of the State Department. If you want to reject female asylum seekers, reject them honestly. Don’t pretend that they are economic migrants and that you are returning them to safe places. At least have the decency to tell them–and the American people–that you are returning them to countries where they face extreme danger and death.

Frankly, there’s nothing too surprising about the new DOS Report. President Trump has made his views on refugees and on women quite clear. But what’s so sad is that the Report represents further evidence that the Administration’s lies have infected yet another esteemed government institution. Not only is this Report bad for asylum seekers, it’s bad for the State Department, which is now complicit in the Administration’s mendacity. Indeed, I can’t help but think that the fate of these asylum seekers is inextricably tied to the fate of the DOS, and the new Report doesn’t bode well for either of them.

Special thanks to Attorney Joanna Gaughan for the idea for this piece. Ms. Gaughan works for the Farrell Law Group in Raleigh, NC. Her practice focuses largely on asylum cases, and she can be reached at joanna.m.gaughan@gmail.com.

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The outright lies, distortions, intentional misuse of statistics, and knowingly false narratives from Trump, Sessions, Nielsen, Miller and the rest of the White Nationalist crowd is all part of the “de-humanization effort.”

Truth be told, the two previous Administrations returned refugees and others entitled to protection to countries where they were in danger. This Administration has ramped up the deadly, illegal, and inhumane program. De-humanization is just part of the effort to mask the full scope of their human rights violations. Not that Trump supporters care too much about human rights, Constitutional rights, or indeed anybody’s rights except their own (which are by no means safe from Trump if he turns on them, as he is wont to do — just ask Jeff “Gonzo Apocalyoto” Sessions or Steve Bannon). Selfish Government for selfish people.

But, the key message here is that the advocacy community needs to inform courts about the biases of the Country Reports and present viable alternatives!

PWS

06–03-18

SENATE DEMOCRATS URGE SESSIONS TO UPHOLD REFUGEE PROTECTIONS FOR LGBTQ AND OTHERS IN MATTER OF A-B-

May 23, 2018

CORTEZ MASTO, COLLEAGUES CALL ON SESSIONS TO UPHOLD PROTECTIONS FOR LGBTQ ASYLUM SEEKERS FLEEING PERSECUTION

Washington, D.C. – Today, U.S. Senator Cortez (D-Nev) Masto joined Senators Kamala D. Harris (D-Calif) and Dianne Feinstein (D-Calif) and other Senate Democrats in sending a letter to Attorney General Jeff Sessions urging that the Justice Department uphold a ruling by the Board of Immigration Appeals (BIA) that provides protections for LGBTQ asylum seekers who are fleeing persecution. In the letter, the senators highlight the increasing threat of violence LGBTQ individuals face in many parts of the world.

“LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world,” said the senators. “As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals.”

The senators continued, “Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest.”

In addition to Cortez Masto, Harris and Feinstein, the letter was signed by U.S. Senators Tammy Baldwin (D-WI), Patty Murray (D-WA), Amy Klobuchar (D-MN), Kirsten Gillibrand (D-NY), Jeanne Shaheen (D-NH), Richard Blumenthal (D-CT), Tammy Duckworth (D-IL), Cory Booker (D-NJ), Bob Casey (D-PA), Chris Coons (D-DE), Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Bob Menendez (D-NJ).

A copy of the letter can be found HERE and below:

Dear Attorney General Sessions:

We write to express our concerns about your pending review of the Board of Immigration Appeals (“BIA”) decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) and the adverse impact such a decision could have on vulnerable populations fleeing persecution and violence. We urge you to uphold the BIA’s decision, which reflects a well-settled matter of law that provides critical protections for vulnerable populations, including LGBTQ individuals subject to private persecution that foreign governments are unwilling or unable to control.

LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world. As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals. As just two alarming examples of state sponsored anti-LGBTQ actions this past year, Russian authorities in Chechnya undertook an anti-gay purge that involved the alleged torture of dozens of men, and Egyptian authorities engaged in a campaign to target and incarcerate individuals solely based on their sexual orientation.

Your referral order for the Matter of A-B- – in which you aim to address, “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal” –has great import for the majority of LGBTQ asylum seekers who arrive in the United States fleeing persecution by private individuals. In the decades since this country first recognized LGBTQ status as a protected particular social group, it has been well established that LGBTQ individuals face grave risks in reporting private persecution or seeking governmental protection from such persecution abroad. Any change to this body of law would be a mistake.

In countries where government authorities engage in serious physical and sexual assaults of LGBTQ individuals, it is effectively impossible for them to seek protection from those same authorities when faced with private persecution. In some countries, simply asking for protection from state authorities can result in government-sponsored persecution. Even where state authorities are not active perpetrators of violence against LGBTQ individuals, they frequently turn a blind eye, emboldening private actors to engage in hate-motivated violence. U.S. State Department research highlights that foreign government retribution towards and lack of assistance for LGBTQ individuals who face private threats of persecution is commonplace, even when the population is not expressly criminalized. This chills the ability of LGBTQ individuals to report such persecution in their home countries.

Societal and familial considerations also often prevent LGBTQ victims of private persecution from coming forward to foreign authorities. They may be threatened with reprisals from their persecutors or coming forward would reveal their LGBTQ status and increase other persecution. In many countries, the act of reporting violence can have deadly consequences.

Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest. As such, we strongly urge you to leave undisturbed the BIA’s decision in Matter of A-B-.

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The effort is likely to be futile. It’s hard to believe that Sessions, given his xenophobic record and anti-asylum rhetoric, certified the case to himself (actually over the objection of both the DHS and the Respondent) just to uphold and strengthen refugee protections for abused women and LGBTQ individuals. Indeed, Sessions has a clear record of anti-LGBTQ views and actions to go along with his anti-asylum bias.

But, the law favoring asylum protections for victims of DV and LGBTQ individuals who suffer harm at the hands of non-state-actors that governments are unwilling or unable to control is now well established. Therefore, Sessions’s likely “scofflaw” attempt to undo it and deny protections to such vulnerable refugees is likely to “muck up the system” and artificially increase the backlogs in the short run, while failing in the long run to achieve the perversion of justice and denial of Due Process for asylum seekers that he seeks to impose.

Surprisingly, the Article III (“real”) courts don’t allow the disgruntled prosecutor to “certify” results that he doesn’t like to himself and rewrite the law in his own favor! That’s why the facade of “courts” operating within the USDOJ must come to an end, sooner or later!

PWS

05-26-18

GUATEMALAN MOM WAS NEARLY KILLED BY HER HUSBAND BECAUSE OF HER GENDER —THE U.S. GRANTED HER REFUGE UNDER THE REFUGEE ACT OF 1980 — NOW A.G. JEFF SESSIONS APPEARS TO BE READY TO REWRITE WELL-ESTABLISHED LAW TO SENTENCE WOMEN LIKE HER TO DEATH OR A LIFETIME OF ABUSE!

https://www.nytimes.com/2018/05/17/opinion/jeff-sessions-asylum-domestic-violence.html

Jane Fonda and Professor Karen Musalo of UC Hastings write in the NY Times:

By Jane Fonda and Karen Musalo

Ms. Fonda is an actor and activist. Ms. Musalo directs the Center for Gender and Refugee Studies at UC Hastings College of the Law and represents A-B- in her asylum case.

May 17, 2018

Image
CreditMarta Monteiro

In recent years, the United States has been something of a beacon of hope for women fleeing violence and persecution in their home countries. In 2014, in a giant step forward, immigration courts explicitly determined that a person fleeing severe domestic violence may be granted asylum here if the violence rises to the level of persecution, if the government in the victim’s home country cannot or will not punish her abuser and if various other criteria are met. It’s a high bar but one that, sadly, women from many countries can clear. Now their last chance at protection may be under threat.

The case that established that certain victims of domestic violence are eligible for asylum was decided in a landmark ruling by the Board of Immigration Appeals, the highest court in our immigration judicial system.

The survivor in the case, a Guatemalan named Aminta Cifuentes, was a victim of severe physical and sexual abuse. Ms. Cifuentes had endured 10 years of unrelenting violence at the hands of her spouse, who burned her with acid, beat and kicked her, broke her nose and punched her in the stomach with such force when she was eight months pregnant that the baby was born prematurely and with bruises. Her husband told her it would be pointless to call the police, because “even the police and judges beat their wives.”

The ruling that granted her protection was a transformative one, not just for Ms. Cifuentes but for our country, too. At last, the United States stood firmly in opposition to violence against women and recognized that we can and should offer hope to survivors.

In March, however, Attorney General Jeff Sessions, in an unusual move, suddenly and inexplicably stepped into this seemingly settled matter to assign a similar petition for asylum, known as the Matter of A-B–, to himself for reconsideration.

The facts in the Matter of A-B- are similar to those in the 2014 case. Ms. A-B-, a Salvadoran, was brutalized by her husband for 15 years. He beat and kicked her, including while she was pregnant; bashed her head against a wall; threatened her with death while holding a knife to her throat and while brandishing a gun; and threatened to hang her. Ms. A-B- attempted to secure state protection to no avail.

When she went to the police after her husband attacked her with a knife, their response was that if she had any “dignity,” she would leave him. When Ms. A-B- did attempt to leave her husband, he tracked her down, raped her and threatened to kill her. When she finally got a divorce, her ex-husband told her that if she thought the divorce freed her from him, she was wrong. She fled the country after he told her that he and his friends were going to kill her and dump her body in a river.

When Ms. A-B- came to the United States seeking asylum, her case was heard by an immigration judge in Charlotte, N.C., named V. Stuart Couch, who is notorious for his high denial rate. Judge Couch denied her asylum; Ms. A-B- appealed, and the decision was overruled by the Board of Immigration Appeals, the same board that had ruled favorably in the 2014 case.

The board sent the case back to Judge Couch for security checks to be completed and asylum to be granted. Without any explanation, Judge Couch held on to the case and refused to grant asylum as directed. And then, deviating from normal procedures, Mr. Sessions took jurisdiction.

The attorney general does have the power to reconsider any decision by the Board of Immigration Appeals. However, the procedural irregularities, paired with the possibility that Mr. Sessions may be using his authority to upend the precedent set in the Cifuentes case, are troubling. Mr. Sessions has given himself the power not only to decide Ms. A-B-’s fate but also ultimately to try to rule on how our country handles claims for all survivors of domestic violence looking for asylum.

To be clear, we do not yet know what Mr. Sessions will decide. But in the context of the Trump administration’s antipathy toward asylum seekers, and Mr. Sessions’s statements and actions with regard to immigrant women, his decision to assign himself jurisdiction does not bode well. Asylum seekers who have arrived at the American border seeking protection have been vilified by this administration.

The government has targeted women in ways that would have been unthinkable under prior administrations, including separating mothers who arrive at the border from their children and detaining pregnant women. Mr. Sessions himself has expressed his deep skepticism about asylum claims based on gender-related persecution.

At a time when violence against women and girls is a global crisis, a decision to deny protection to women who flee gender violence, including domestic violence, would be a grave mistake. This is a moment of truth of our country. Will we remain a beacon of hope for women worldwide whose lives are on the line because of domestic violence, and whose governments cannot or will not protect them? The answer, it seems, is in the attorney general’s hands.

Jane Fonda, an actor and activist, is a co-founder of the Women’s Media Center and on the board of Sisterhood Is Global. Karen Musalo directs the Center for Gender and Refugee Studies at the University of California Hastings School of Law and represents A-B- in her asylum case.

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Matter of A-B-, was a straight-forward application by the BIA of its existing precedents on asylum for victims of domestic violence.
The Immigration Judge who wrongfully denied the original asylum application appeared to disregard the BIA’s mandate to check fingerprints and grant on remand, and instead delayed the case without any apparent valid reason for doing so.
Sessions “certified” this case to himself either though neither party had requested his intervention and, remarkably, the DHS requested that the certification be dissolved to allow the BIA to resolve any issues under its existing framework of asylum precedents.
Sessions has made a number of inflammatory, anti-asylum statements including several made in a speech to EOIR adjudicators.
Is this “Justice In America?” Or, is it a “Parody of Justice In America” taking place in a “captive court system” dedicated to one-sided enforcement rather than fairness and Due Process.
Join the “New Due Process Army” and fight against Sessions’s perversion of the U.S. Immigration Court system to fit his “enforcement only” viewpoint.

PWS

05-19-18

HON. BRUCE J. EINHORN IN THE HILL: SCOFFLAW AG JEFF SESSIONS PERVERTS RULE OF LAW, “PERSECUTES THE PERSECUTED,” AND UNDERMINES THE FUNDAMENTAL PROTECTION PURPOSES OF THE REFUGEE ACT OF 1980

http://thehill.com/opinion/immigration/386956-persecuting-the-persecuted-in-asylum-cases-is-not-the-answer

Judge Einhorn writes:

As a young Justice Department lawyer, I was present at the creation of the Refugee Act of 1980, which together with its amendments and implementing regulations constitute the regime of asylum and refugee protection in the United States. During the Carter administration, I had a hand in the final drafting of the 1980 asylum law. As a U.S. immigration judge in Los Angeles from 1990 through 2007, I heard and decided thousands of cases in which citizens and stateless persons from foreign countries sought asylum in our nation. As a law professor both in California and in England, I have lectured on asylum and refugee law.

The asylum law was intended as a humanitarian measure to defend the defenseless by offering them the possibility of a new and secure life in the United States. But that will no longer be the case if Attorney General Jeff Sessions has his way. The Refugee Act of 1980 grants asylum status in the United States for any foreign-born individual who demonstrates past persecution or a well-founded fear of future persecution for reasons of “race, religion, nationality” as well as “membership in a particular social group” and “political opinion.”

Additionally, under precedent set over the course of decades by federal courts across the country, the persecution that triggers asylum protection must be committed or attempted by a foreign government, or by forces that the government is unable or unwilling to control. That the persecution may be official or private recognizes the fact that in many countries, civil society and the rule of law are nowhere to be found. In their place, governments often unofficially depend on ad hoc private parties and organizations to aid in the torture, persecution and murder of those deemed “enemies of the state.” The use of nongovernmental persecutors provides plausible deniability to regimes that deny complicity in the mistreatment of those they seek to eliminate.

Now the attorney general is attempting to undermine if not eliminate the “unable or unwilling” standard applied in asylum cases for decades. In 2016, in a case entitled “Matter of A-B-,” the Board of Immigration Appeals, the administrative court that reviews decisions of immigration judges, ruled that based on prevailing precedent, an asylum applicant seeking refugee status based on her membership in a particular social group” that led to her gross domestic abuse, had demonstrated that the government of her native El Salvador was unwilling or unable to protect her from her abusive ex-husband. The board remanded the case to the trial judge so that he might apply the correct “unwilling or unable” standard.

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

Go on over to The Hill to read Judge Einhorn’s complete article!

Judge Bruce J. Einhorn has spent his career advancing the true rule of law and seeking to rectify the wrongs of the past: first as a prosecutor in the Office of Special Investigations at the U.S. DOJ bringing Nazi war criminals to justice (where I first came in contact with him); then as a U.S. Immigration Judge; and finally as a law professor. (Yes, folks, there was a time long ago when the USDOJ actually was on the side of seeking and guaranteeing justice for the persecuted, rather than engaging in child abuse, spreading false scenarios about immigrants and crime, promoting xenophobic myths about refugees, building the “New American Gulag,” and mis-using the US Immigration Court system as a tool of DHS enforcement to discourage refugees from seeking protection under our laws and international treaties to which we are party.)

By contrast, Jeff Sessions has spent his entire legal & “public service” career on the wrong side of history: trying to “turn back the clock” to the era of Jim Crow; promoting intolerance, unequal treatment, and hate directed at African-Americans, Hispanics, immigrants, and the LGBTQ community; perverting the rule of law and the Constitutional guarantee of individual rights and fairness for everyone in America; and denying the massive contributions to the success of the United States made by non-White, non-Christian, and non-U.S. citizen individuals.

Jeff Sessions is a much bigger threat to the security, welfare, and future of the United States than are desperate women and children from the Northern Triangle seeking to save their lives by exercising their lawful rights under U.S. and international law to apply for asylum.

PWS

05-10-18

NO, IT’S NOT “NORMAL DEVIATION:” U.S. IMMIGRATION JUDGE V. STUART COUCH’S RECORD ON CENTRAL AMERICAN WOMEN CLAIMING ASYLUM BASED ON A-R-C-G- SHOWS DEVIANT JUDICIAL BEHAVIOR, BIAS, & INSUFFICIENT CONTROL BY THE BIA – These Are The Glaring Problems Demeaning Due Process In Today’s U.S. Immigration Courts!– Yet, Jeff Sessions Appears Determined To Reinforce Bias and Denial Of Due Process Rather Than Solving The REAL Problems!

FOIA results: evidence of Immigration Judge V. Stuart Couch’s shocking prejudgment of all domestic violence asylum claims

by Bryan Johnson on April 20, 2018

At the bottom, readers will find the all of the decisions of Immigration Judge V. Stuart Couch that resulted in BIA remands for the Fiscal Year of 2017.

Time and time again, IJ Couch’s decisions denying victims of domestic violence asylum contain carbon copy language.

Thus, it is clear that IJ Couch’s has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum. The following is one of his favorite passages to copy and paste.

The respondent’s evidence reflects that [the] physical and verbal abuse of her was related to his violent and jealous nature…The evidence in this case is more consistent with acts of general violence and therefore does not constitute evidence of persecution based on a statutorily protected ground.

Immediately below, I have excerpted key parts of the BIA & IJ Couch decisions. A clear pattern has emerged: IJ Couch does not grant asylum to women who are victims of domestic violence, despite clear instructions to the contrary from the BIA.

Pages 31-48:

Immigration Judge’s decision:

“As noted in the particularity analysis supra, Guatemala has significant and troubling

issues related to domestic violence and crimes against women. However, unlike the married

alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or

inability to seek assistance from authority that distinguishes her from other women in

Guatemalan society. Similar to the particularity analysis supra, the Court finds the

respondent is an unfortunate victim of violence against women like far too many women in

Guatemala, and thereby renders her past harm indistinct by comparison.”

BIA’s holding:

The respondent’s testimony reflects that people in the community knew them as a couple and

made comments reflecting their notions that the respondent could not escape the relationship (Tr. 232 at 66).

The respondent also testified that her parents did not help her leave the

relationship because of ingrained views that women are the property of men (Tr. at 33-35).

Under these circumstances, we conclude under the same reasoning as Matter of A-R-C-G-,

supra, that the proffered social group here is “immutable,” “particular” and “socially distinct.”

To the extent that the Immigration Judge determined that the respondent is not a member of this

particular social group, that determination is clearly erroneous. See Matter of A-R-C-G-, supra,

at 3 91 (the question whether a person is a member of a particular social group is a finding of fact

that we review for clear error).”

Pages 65-80:

Immigration Judge’s decision:

“As noted in the particularity analysis supra, El Salvador has significant and troubling

issues related to domestic violence and crimes against women. However, unlike the married

alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or

inability to seek assistance from authority that distinguishes her from other women in

Salvadoran society. Similar to the particularity analysis supra, the Court finds the

respondent is an unfortunate victim of violence against women like far too many women in

El Salvador, and thereby renders her past harm indistinct by comparison.”

BIA decision:

Finally, the record does not support the Immigration Judge’s determination that the past harm

the respondent suffered is “consistent with acts of general violence” which undermines her claim

for asylum (l.J. at 10). Further, even assuming her former partner’s “criminal tendencies and

substance abuse” played a role in his conduct (/d.), the appropriate inquiry is whether the

asserted protected ground was or would be “at least one central reason” for the claimed or feared

harm. See section 208(b)(l)(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341, 349 (BIA

2010)

Pages 81-96:

Immigration Judge Decision:

The respondent testified that when was drunk, he would physically and

verbally abuse her. She further testified “he was fine” when he was not under the influence

of alcohol. Thus, ‘s abuse appears related to his own criminal tendencies and

substance abuse, rather than conclusive evidence he targeted the respondent on account of

her proposed particular social group. The evidence in this case is more consistent with acts of

general violence and therefore does not constitute evidence of persecution based on a

statutorily protected ground.

BIA decision:

Upon review of the record, we conclude that a remand is necessary for the Immigration

Judge to further assess whether the respondent established that she is a member of a cognizable

particular social group. The Immigration Judge found that the respondent’s case is factually

distinguishable from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because she was not in

a marital relationship with her former partner and did not seek assistance from authorities

(I.J. at 7-9). While relevant, the distinguishing factors identified do not preclude the respondent

from establishing that her proposed particular social group is cognizable under the Act, and we

find that further fact-finding regarding the respondent’s experiences in El Salvador is necessary

to determine whether she satisfied the elements required to establish a valid particular social

group. See Matter of A-R-C-G-, supra, at 393 (stating that “adjudicators must consider a

respondent’s own experiences, as well as more objective evidence, such as background country

information”).

Pages 102-120:

BIA decision:

We find clear error in the Immigration Judge’s determination that the respondent was not

abused by her former partner on account of her particular social group. See l.J. at 12; 8 C.F.R.

§ 1003.l (d)(3)(i); Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (a persecutor’s actual

motive is a matter of fact to be determined by the Immigration Judge and reviewed by this Board

for clear error). The respondent testified that her former partner told her that a woman is not

more intelligent than he is and that the respondent has no value, comments which indicate that he

harmed her because of her perceived lesser status in the relationship (Tr. at 46).

Immigration Judge Decision:

The respondent’s evidence reflects that [the] physical and verbal abuse of her

was related to his violent and jealous nature, sometimes accompanied by his use of alcohol.

Thus, ‘s abuse appears related to his own criminal tendencies or substance abuse,

rather than conclusive evidence he targeted the respondent on account of her proposed

particular social group. The evidence in this case is more consistent with acts of general

violence and therefore does not co nstitute evidence of persecution based on a statutorily

protected ground. Huaman-Cornelio v. BIA, 979 F.2d 9 at l 000; Ruiz v. US. Att’y Gen., 440

F.3d 1247, 1258 (11th Cir. 2006).

Pages 137-155

BIA decision:

We disagree with the Immigration Judge that the respondent’s proposed social group, consisting of Honduran women

who are viewed as property and whose domestic partners refuse to allow them to leave their

relationship lacks the requisite immutability, particularity, and social distinction (l.J. at 7-10).

See Matter of M-E-V-G-, 26 l&N Dec. 227, 236-43 (BIA 2014) (outlining factors to be

considered when discerning whether a social group is cognizable under the Act); Matter of

W-G-R-, 26 I&N Dec. 208, 213-18 (BIA 2014) (same).

Immigration Judge Decision:

The respondent’s evidence reflects that ‘s physical and verbal abuse of her

was related to his violent and jealous nature, heavy use of drugs and alcohol, and association

with drug traffickers. Exhibit 3, tab C at 17-19. Thus, ‘s abuse appears related to his

own criminal tendencies or substance abuse, rather than conclusive evidence he targeted the

respondent on account of her proposed particular social group. The evidence in this case is

more consistent with acts of general violence and therefore does not constitute evidence of

persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at

1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds

that the respondent has not established targeted her due to her particular social group,

which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).

Pages 157-173

Immigration Judge decision:

The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse

of her was related to his violent and jealous nature. The respondent testified Mr. ‘

motivation to harm her was anger when she would ask him for money so she could buy food

for her family. She recalled the final argument that led to their separation occurred when the

respondent confronted Mr. regarding his affair with her sister-in-law. Thus, Mr. ‘

abuse of the respondent appears related to his own violent and criminal tendencies, rather than

conclusive evidence he targeted her on account of her membership in a particular social group.

The evidence in this case is more consistent with acts of general violence and therefore does

not constitute evidence of persecution based on a statutorily protected ground.

Consistent with its immutability and particularity analysis supra, the Court finds the

respondent is an unfortunate victim of violence against women like far too many women in

Guatemala, and thereby renders her past harm indistinct by comparison. For these reasons, the

Court finds the respondent has not met her burden to show the requisite social distinction

necessary for membership in a particular social group.

BIA decision:

The Immigration Judge further concluded that the respondent did not meet the immutability,

particularity and social distinction requirements for a cognizable particular social group (I.J. at 9-

12). We have held that depending on the facts and evidence in an individual case, victims of

domestic violence can establish membership in a cognizable particular social group that forms the

basis of a claim for asylum or withholding of removal. Matter of A-R-C-G-, 26 I&N

Dec. 388 (BIA 2014).

Pages 228-243

Immigration Judge decision:

The respondent’s evidence reflects that Mr. ‘s physical, verbal, and sexual

abuse of her was related to his violent and jealous nature. The respondent testified Mr.

‘s motivation to harm her was anger after she reported his abuse to government

authorities. Thus, Mr. ‘s abuse of the respondent appears related to his own

violent and criminal tendencies, rather than conclusive evidence he targeted her on account of

her membership in a particular social group. The evidence in this case is more consistent with

acts of general violence and therefore does not constitute evidence of persecution based on a

statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at 1000; Quinteros-Mendoza

v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds that the respondent has not

established Mr. targeted her due to her membership in a particular social group,

which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).

BIA decision:

There appears to be no dispute that the verbal, physical and sexual abuse suffered by the

respondent at the hands of her stepfather, which occurred several times per week over a period of

years, rises to the level of past persecution. See, e.g., Barahon v. Holder, 588 F.3d 228, 232,

(4th Cir. 2009) (observing that “[a] key difference between persecution and less-severe

mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents”).

However, the Immigration Judge rejected as invalid the respondent’s proposed particular social

group of”Mexican children who are perceived as property and lack effective familial protection,”

finding that it lacked the requisite immutability, particularity, and social distinction (I.J. at 7-9).

The question whether a group is a “particular social group” within the meaning of the Act is a

question of law that we review de novo. Matter of A-R-C-G-, supra, at 390. On review, we find

that the particular social group posited by the respondent, under the circumstances of this case, is

valid under the reasoning of our recent decisions clarifying the approach to particular social

groups. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N

Dec. 208 (BIA 2014).

Pages 264-283

Immigration Judge decision:

The respondent’s evidence reflects that her former spouse’s physical, sexual, verbal,

and psychological abuse of her was related to his violent and jealous nature, and frequent

intoxication from alcohol. The respondent testified that is an alcoholic whose

motivation to harm her stemmed from his anger, dislike for her, jealous nature, and infidelity

with other women. Exhibit 2, tab C at 12-13. Based upon the respondent’s testimony, it

appears the threats, assault and rape she suffered at the hands of was intended to

intimidate and threaten her to comply his own selfish and criminal demands for sex.

Thus, the abuse suffered by the respondent appears related to the violent and criminal

tendencies of her abusive former spouse, rather than conclusive evidence she was targeted on

account of her membership in a particular social group. The evidence in this case is more

consistent with acts of general violence and therefore does not constitute evidence of

persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at

1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court fmds

that the respondent has not established her former spouse targeted her due to her membership

in a particular social group, which is required to prove the requisite nexus for asylum relief.

INA§ 208(b)( l)(B)(i).

BIA decision:

We additionally conclude that the Immigration Judge’s finding that the respondent was able

to leave her ex-husband is clearly erroneous (l.J. at 10-11).

However, the record reflects that the respondent’s ex-husband continued to threaten and physically abuse the respondent after -their separation,

despite her move to a town over 2 hours away from him, and that he raped her in…2014, after their divorce.

Pages 315-334

Immigration Judge decision:

The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse

of her was related to his violent and jealous nature, often fueled by his use of alcohol and

drugs. Exhibit 2, tab H at 1-2. Mr. ‘ motivation to harm her appears to be based upon his

own criminal tendencies and substance abuse, rather than conclusive evidence he targeted

her on account of her membership in a particular social group.

BIA decision:

We also note that even if the evidence and testimony support a finding that the

respondent’s husband has a “violent and jealous nature” (I.J. at 12), this is not clearly separate

from a motive to persecute his wife based on feelings of domination and control, the hallmarks

of domestic violence.

Pages 373-393

Immigration Judge decision:

The respondent’s evidence reflects that her husband’s physical, verbal, and

psychological abuse of her was related to his violent and jealous nature, at times affected by his

use of alcohol. The respondent testimony suggests her husband’s motivation to harm her was

his dislike for her and suspicion she was being unfaithful to him. His motivation also appears

related to the respondent’s desire to leave him because of his infidelity, and his demands for

custody of their son. Based upon the respondent’s testimony, it appears the threats, assaults

and psychological abuse she suffered at the hands of her husband was intended to intimidate

her to obtain some unclear result.

BIA decision:

We conclude, based on the particular facts presented on this record that the respondent

established that she was a member of the particular social group she articulated. We further

conclude that the Immigration Judge erred in concluding that this case is distinguishable from

Matter of A-R-C-G-, supra, based principally on the fact that the respondent was able to separate

and live apart from her husband after he moved out of their home in 2013 (l.J. at I 0-l l ).

The respondent’s ability to live apart from her husband in Honduras is not a distinguishing factor

from the social group rationale articulated in Matter of A-R-C-G-, supra, where the respondent

credibly testified that her husband refused to consent to a divorce and showed up unannounced

and uninvited at her home on several occasions, once touching her in a sexual manner and telling

her that he has a “right” to her as his wife. Additionally, the respondent testified that she was

unable to leave the relationship in Honduras for numerous cultural reasons, including her fear that

would take their son away from her and her belief that she was unable to obtain a divorce

because of ‘s ties to local government officials (l.J. at 3-4; Tr. at 51, 56, 64-73, 99, 105).

See Matter of A-R-C-G-, supra, at 393 (recognizing that “a married woman’s inability to leave the

relationship may be informed by societal expectations about gender and subordination, as well as

legal constraints regarding divorce and separation.”). Further, that domestic violence is prevalent

in Honduras does not mean that the respondent’s proposed particular social group lacks discrete

boundaries, as the Immigration Judge determined (l.J. at 11).

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

EOIR has been known to pass off this type of judicial misconduct as “normal deviations” in judging. But, there is a difference between honest variances in judicial philosophies and approach, which are present to some extent in all diverse judicial systems and might produce differing results, and clearly biased and unfair judging. Judge Couch’s performance clearly fits within the latter.

To state the obvious:

All of these incidents were “specifically targeted.” Therefore, Judge Couch’s determination that they were part of “generalized violence” is clearly fiction.
Asylum applicants are not required to demonstrate “conclusive evidence” of anything. “Conclusive evidence” is not a legal standard in any part of asylum adjudication.

What should have happened:

Judge Couch should have been removed from each of these cases for bias;
Like U.S. Courts of Appeals, the BIA should have “outed” Judge Couch, by name, in published opinions to give both applicants and the Fourth Circuit Court of Appeals notice of his problematic adjudication of asylum cases.
If Judge Couch continued his biased and unfair judging he should have been 1) ordered by the BIA not to hear any asylum cases involving women from the Northern Triangle, and 2) told that if his performance in asylum cases did not improve, he would be referred to the EOIR disciplinary system for Immigration Judges based on actual bias against asylum applicants.

There is simply no room in a true Due Process system, particularly one where many respondents are unrepresented, for a biased, anti-asylum judge like Judge Couch. Is this “being the world’s best administrative tribunals guaranteeing fairness and Due Process for all?” No Way! Jeff Sessions, who often enunciates biased, anti-asylum positions, is part of the problem, not the solution! Due Process can’t be restored to the U.S. Immigration court system until Jeff Sessions and the USDOJ are removed from the process.

We need an independent judiciary capable of telling judges who perform like Judge Couch to correct their behavior immediately — in other words, “shape up or ship out.”

PWS

05-09-18

HON. JEFFREY CHASE: EVERYONE IN THE HUMAN RIGHTS/WOMEN’S RIGHTS ADVOCACY COMMUNITY NEEDS TO UNITE AND TAKE AGGRESSIVE ACTION AGAINST JEFF SESSIONS’S PLAN TO PASS DEATH SENTENCE ON FEMALE REFUGEES FLEEING DOMESTIC VIOLENCE –Many Will Be Killed, Raped, Maimed, Disfigured, Or Sentenced To A “Life Worse Than Death” If Sessions Has His Way!

https://www.jeffreyschase.com/blog/2018/5/6/7r3izq486dxxtzlrsythpmr2kg35j3

May 6 Briefs Filed in Matter of A-B-

Briefs of the parties and amici have now been filed with the Attorney General in Matter of A-B-. Once again, a group of former immigration judges and BIA members, which this time numbered 16 (including myself) filed an amicus brief (which can be viewed here: http://www.aila.org/infonet/amicus-brief-matter-of-a-b- ).* The respondent’s brief was submitted by the outstanding legal team of Ben Winograd of IRAC; Karen Musalo, Blaine Bookey, and Eunice Lee of CGRS, and Charlotte attorney Andres Lopez. DHS’s brief was submitted by Michael P. Davis of ICE, whose reasoned positions are to be commended.

The issue in the case below involved the actions of immigration judge V. Stuart Couch in failing to abide by the decision of the Board of Immigration Appeals, which reversed Couch’s denial of asylum in a particularly strong claim involving a victim of severe domestic violence. The BIA reversed the judge’s decision, and remanded with instructions to grant asylum following the required updated security clearance by DHS. However, Couch took some nine months to schedule the case for a hearing. When at that hearing, DHS stated that the clearances had been completed, Judge Couch did not issue a new decision (as he was directed to do by the BIA). Instead, he stated that he was recertifying the case to the BIA, something that he lacked the authority to do without first issuing a new decision.

The case sat for another seven months, during which time it is not clear whether the record actually made its way back to the BIA. But before the Board could rule on the propriety of Judge Couch’s actions, the case was somehow plucked from wherever it had been by AG Jeff Sessions, who on his own transformed the case into a vehicle to answer a question that no one but himself seems to understand, namely, whether being the victim of private criminal activity constitutes a cognizable particular social group for asylum purposes. (There is an interesting question of how Sessions even knew that this case existed.)

In response, the Department of Homeland Security appealed to reason. It requested the AG to hold off until the BIA ruled on the propriety of Couch’s attempted recertification. DHS also requested Sessions to provide further clarification of his question, and noted that “this question has already been answered, at least in part, by the Board and its prior precedent.” Sessions denied both requests, adding that he is not bound by BIA precedent, nor is he required to allow briefing on an issue before him on certification. It seems as if Sessions might be saying that as he’s bestowing the privilege of allowing briefs, he doesn’t further need to let everyone know what it is they are being asked to brief.

Depending on how Sessions is choosing to interpret the question, his decision might impact not only domestic violence claims, but any asylum claim based on a particular social group involving private criminal activity (which could include claims based on sexual orientation or sexual identity; as well as victims of female genital cutting, human trafficking, gang violence, blood feuds and honor killings). Or then again, maybe not. Because if Sessions is asking whether a particular social group delineated as “victims of private criminal activity” is cognizable, his answer wouldn’t impact the outcome of this case, as the respondent never claimed to be a member of such group. Nor would it matter to the outcome if Sessions is asking whether a group which includes the element of victimization by a criminal acting in a private capacity is cognizable, as no element of victimization is included in the respondent’s delineated group of “El Salvadoran women who are unable to leave their domestic relationships where they have children in common.” Nowhere in the wording of such group is there a mention of being the victim of private criminal activity, nor is the respondent claiming that she was targeted for abuse because of her being a victim of private criminal activity.

But could Sessions be questioning whether any particular social group merits asylum where its members fear persecutors who are not government officials? If that’s his question, a decision in the negative would run counter to not only more than a half century of BIA precedent, but also to decisions of all eleven Federal circuit courts, and to international law, all of which universally agree that for asylum purposes, persecution may be by private actors that the government is unable or unwilling to control.

Does Sessions himself understand the question he is asking? Let’s just assume that since this case involves a credible victim of severe domestic violence, and that her particular social group was found by the BIA to be substantially similar to the one it recognized as cognizable in its 2014 precedent decision in Matter of A-R-C-G-, that Sessions is considering invalidating that decision.

The purpose of courts and tribunals is to resolve disputes between the parties. The issue that Sessions now wishes to address has been settled, and is not being contested by either party. The Department of Homeland Security itself made this point to Sessions. Had this case been allowed to run its course and result in a grant of asylum, it is far from clear that such result would have been contested or appealed by DHS. In its brief to Sessions, DHS states more than once that it “generally supports the legal framework set out by the Board in Matter of A-R-C-G-.” DHS continued that the group in that case of “married women in Guatemala who are unable to leave their relationship” was not defined by the respondent’s being subject to domestic violence. DHS specifically stated that like the BIA, it “understands ‘unable to leave a relationship’ to signify an inability to do so based on a potential range of ‘religious, cultural, or legal constraints…’” DHS continued that neither the PSG in A-R-C-G- nor the group offered by A-B- herself violate the principle that such group “must exist independently of the persecution suffered and/or feared.”

In refusing DHS’s request for clarification, Sessions claimed that “several Federal Article III courts have recently questioned whether victims of private violence may qualify for asylum” based on their membership in a particular social group. However, in responding to such statement in its subsequent brief, DHS noted that “none of the circuit court decision cited by the Immigration Judge questioned the underlying validity of A-R-C-G-.” In response to Sessions’ statement that he is not bound by the BIA’s precedent decisions, DHS recognized this, but “avers that the Attorney General should not directly or indirectly abrogate A-R-C-G-,” but should “rather…emphasize the importance of case and society-specific analysis.”

There is thus agreement between the parties of the validity of the Board’s holding in A-R-C-G-. In revisiting the issue, Sessions is not attempting to resolve a dispute, as no such dispute exists.

To me, the most shocking aspect of Sessions’ action is its timing. Case law concerning human rights (including the law of asylum) and civil rights does not develop in a vacuum. Much as courts have extended civil rights protections based on race, gender, and sexual orientation throughout the history of this country, the idea of what constitutes persecution and which of its victims are deserving of protection evolves along with the views of society. Sessions is choosing, unprompted, to challenge whether victims of domestic violence are deserving of asylum just as our society has undertaken a powerful, long-overdue, and much needed correction in the form of the #metoo movement. Many hundreds of thousands of us (“us” of course referring to people regardless of gender, as women’s rights are human rights) have filled the streets of cities all over America (and the world) the past two Januarys in a powerful, emotional rebuke to sexual assault and all forms of sexism. Powerful men who for years had engaged in all forms of sexual abuse and harassment are for the first time experiencing the consequences of their actions. And it is at this particular time that Sessions seeks to revoke protection to women who are domestic violence victims?

Briefs are good, but more is needed. The wonderful Tahirih Justice Center collected 60,000 signatures on a petition which it delivered to Sessions in March calling on him to uphold asylum protection for survivors of domestic violence: https://www.tahirih.org/news/tahirih-delivers-petition-on-asylum-for-domestic-violence-survivors-to-the-attorney-general/. More organizations need to follow Tahirih’s example. In addition to the briefs submitted, there needs to be a true public outcry addressed to Sessions on this issue. Asylum protection for victims of domestic violence is not just an immigration issue or a women’s issue. It is a human right, on which all of us should make ourselves heard.

*Heartfelt thanks to the law firm of Gibson Dunn (Megan Kiernan, Ronald Kirk, Chelsea Glover, Lalitha Madduri, and Amer Ahmed) for drafting the brief, and to former BIA member Lory D. Rosenberg for organizing and coordinating the effort.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

DAVID G. SAVAGE @ LA TIMES: REFUGEE ROULETTE CONTINUES – But, It’s Not What You Might Think – The “Outliers “ Are All On The Anti-Asylum Side In A System Systematically Biased Against Asylum Seekers From The Northern Triangle!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=73fad225-44bc-4757-97fa-b9369552de1e

By David G. Savage

WASHINGTON — Central Americans who travel north to plead for entry at the U.S. border are taking their chances on an immigration system that is deeply divided on whether they can qualify for asylum if they are fleeing domestic violence or street crime, rather than persecution from the government.

The law in this area remains unclear, and the outcome of an asylum claim depends to a remarkable degree on the immigration judge who decides it.

And sitting atop the immigration court system is Atty. Gen. Jeff Sessions, a longtime advocate of much stricter limits on immigration who has recently taken an interest in reviewing asylum cases.

Lawyers say they are troubled by a legal system in which decisions turn so much on the views of individual judges.

Among the 34 immigration judges in Los Angeles, two granted fewer than 3% of the hundreds of asylum claims that came before them in the last five years, while another judge granted 71% of them. The disparity is even greater in San Francisco, where the judge’s rate of granting asylum claims ranged from 3% to 91%.

Overall, asylum seekers would do much better in San Francisco, where 32% were denied between 2012 and 2017, compared with a 68% denial rate in Los Angeles during the same period, according to data from the Transactional Records Access Clearinghouse at Syracuse University.

This is not news to immigration lawyers. A decade ago, several law professors published a study called “Refugee Roulette” that revealed how asylum cases depend heavily on the views of individual judges. “The level of variation was shocking. And it hasn’t changed,” said Georgetown University professor Philip Schrag.

Judge Ashley Tabaddor from Los Angeles, president of the National Assn. of Immigration Judges, discounts the statistics. “They’re not reliable,” she said, since judges may have very different caseloads. Some judges hear claims from people who have been detained for crimes, while others hear mostly claims from juveniles, she said.

“We are human. Different people can have different views about the same set of facts,” she said.

Several Los Angeles lawyers who have won or lost asylum cases in recent months said the identity of the judges played an important role. “It’s astounding how much variation there is from judge to judge. The system is in need of repair. It’s an embarrassment,” said Joseph D. Lee, a partner at Munger, Tolles & Olson.

He represented an El Salvador mother who fled north with her three children after gang members shot and killed her husband’s brother in front of her family and then threatened to do the same to her relatives.

“The Central American cases can be difficult to win. Some judges are pretty hostile to gang-related claims,” he said. His client’s claim was denied, and he plans to appeal. “Your chance of winning an asylum claim shouldn’t turn on the luck of the draw on which judge you get. But that is exactly how it works,” he said.

It may soon become much harder to win such claims. Under an unusual feature of the law, the attorney general, as the nation’s top law enforcement officer, also oversees the immigration courts. He can overrule their decisions and announce new rules that are binding on them.

In March, Sessions announced he would review the question of whether women fleeing domestic violence or other “private criminal activity” can rely on this to win asylum.

Last fall, Sessions spoke to a meeting of immigration judges and complained America’s “generous asylum” system has become “overloaded with fake claims.… The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.”

In the last week, the American Bar Assn., faith-based groups and a coalition of immigration law professors have submitted “friend of the court” briefs to Sessions urging him not to reverse years of precedent involving women fleeing abuse and terror.

But veteran immigration judges are not optimistic. Sessions “just wants more people to be removed,” said Paul W. Schmidt, a retired immigration judge from Virginia and an outspoken critic of the attorney general. “He will make it a lot harder for Central Americans to get asylum.”

The dispute begins with the words of the asylum law. In the Refugee Act of 1980, Congress adopted the United Nations standard and said people may seek asylum if they are “unable or unwilling to return” to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Under the law, asylum seekers are treated differently than, for example, refugees from a war-torn nation or immigrants seeking work.

Four of those terms in the asylum law are clear enough: race, religion, nationality and political opinion. But lawyers and judges have struggled to decide what counts as “membership in a particular social group.”

Courts have agreed that gays and lesbians can count as a social group, since they have suffered persecution in many societies. Some judges have also said women and girls fleeing sexual abuse and violence can seek asylum because their society views women as the property of men — and with no hope for protection from their government.

But the question becomes harder when considering the gang violence that has spread through some Central American countries. For example, people who testified against violent gangs or resisted them in other ways have sought asylum on the grounds they are members of a particularly endangered social group.

“These cases are challenging,” said Nareeneh Sohbatian, a Los Angeles lawyer at Winston & Strawn who supervises asylum claims. “We talk a lot about this. If they are targeted because of a gang, it can be difficult to show it was caused by their membership in a particular social group.”

Jenna Gilbert, managing attorney for Human Rights First in Los Angeles, said it is clear the asylum law does not protect people fleeing “generalized violence.” A claim “needs to be tied to the one of the protected categories,” she said. “The cases are very fact-dependent.”

But the odds of winning asylum are not good for Central Americans. In the last five years, China had the largest number of asylum seekers in the U.S. immigration courts, and only 20% of their claims were denied. Ethiopians did even better, with only 17% denied. By contrast, the highest denial rates arose from claims brought by natives of Jamaica (91%), the Philippines (90%), Mexico (88%), El Salvador (79%), Honduras (78%) and Guatemala (75%).

Andrew Arthur, a former immigration judge who works at the Center for Immigration Studies, which favors stricter enforcement, said it is not surprising that Sessions will reconsider rulings on asylum in cases of domestic violence. “Right now, the law is very unclear. The phrase ‘particular social group’ is vague. A lot of these claims are compelling, but that doesn’t mean it is ‘persecution’ under the law. If a gang wants to recruit me, that’s not persecution.”

Last month, Sessions criticized a caravan of Central American asylum seekers approaching the border as a “deliberate attempt to undermine our laws and overwhelm our system. There is no right to demand entry without justification. Smugglers and traffickers and those who lie or commit fraud will be prosecuted to the fullest extent of the law.”

People who present an asylum claim at the border must only show they have a “credible fear” of persecution if they were to return home. Most asylum seekers are allowed to stay and make their claim.

Sessions said he would send more prosecutors and judges to the border area to resolve these claims quickly, rather than let them linger for many months or years.

Meanwhile, lawyers are also rushing to represent the asylum seekers. “Unfortunately, the Trump administration has waged a yearlong campaign to undermine asylum seekers and demonize those who only wish to live in safety with the families,” said Gilbert of Human Rights First. “We’re proud to assist these individuals who are fleeing unspeakable horror as they try to rebuild their lives.”

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

It’s really not that complex.

Under the BIA’s seminal precedent decision in Matter of Acosta, 19 I&N Dec. 285 (BIA 1985) resisting gang recruitment is undoubtedly a characteristic that is “fundamental to identity” therefore making an individual a member of a “particular social group” (“PSG”) for asylum purposes.
- Undoubtedly, this conduct is threatening to a gang’s existence and power and is “at least one central reason” why forced recruitment and other forms of harm are used, among other things, to overcome this fundamental characteristic of the PSG.
- Therefore, the vast majority of those fleeing the Northern Triangle over the years because of various forms of resistance to gangs should have qualified for asylum under the Acosta test.
- However granting most of these cases might have been perceived as “opening the floodgates” and therefore career threatening to the BIA.
Following the “Ashcroft Purge,” which removed almost all of the Appellate Judges on the BIA who consistently stood up for the rights of migrants and asylum seekers, the BIA came up with bogus requirements of “particularity” and “social visibility/social distinction” to facilitate the denial of most asylum grants to individuals from the Northern Triangle.
- To do this, the BIA actually had to intentionally and disingenuously misapply criteria developed by the UNHCR to expand the protection available on the basis of a particular social group to instead restrict the group entitled to protection.
  - With the “due process” group of judges removed by Ashcroft, the BIA was able to get away with this with no visible internal resistance.
However even under the BIA’s new “bogus test” almost all experts agree that individuals resisting gang recruitment in countries where “go along to get along (and live)” is the norm would be both a well-defined “particularized” group and highly “socially distinct.”
- Consequently, the BIA and a number of anti-asylum Immigration Judges simply resorted to intentionally misconstruing country conditions and making biased “no nexus” findings or largely bogus “adverse credibility rulings” to keep the Northern Triangle grant rate unrealistically low.
- A great way to maximize denials is to hold individuals in detention or game the system so that they can’t obtain competent representation and/or “fail to appear” in Immigration Court thereby denying them the relief that the likely could win in a truly fair, unbiased system.
- Remarkably, the article quotes a source who espouses one of the many DHS “enforcement myths” — that forced recruitment can’t be a basis for asylum.
  - This is nonsense. Even under BIA’s intentionally restrictive precedents, the factual reasons why the respondent is being recruited (“nexus”) are important.
  - But, as a practical matter, no detained, unrepresented applicant has any realistic chance of understanding the law and developing the factual record necessary to support relief.
Also, in the Northern Triangle gangs have infiltrated the system to the extent that it is almost impossible to separate “political motives” from supposedly “criminal ones/”
- Individuals are forcibly recruited as punishment for a variety of reasons including family membership, having been witnesses against gangs, actual or imputed political opinion, and actual or imputed religious views.
- With competent lawyers, time to prepare, and an attentive Court of Appeals, most credible gang-related cases should qualify for asylum.
  - Without lawyers or the chance to develop and document a case, the chances for success are almost nil.
Even though the system is already heavily rigged against bona fide asylum applicants from the Northern Triangle, Attorney General Jeff Sessions has made it clear that he intends to further misconstrue the law to make it virtually impossible for refugees fleeing the Northern Triangle to qualify for asylum
Given the total corruption of the governments in the Northern Triangle and the serious infiltration by gangs, a fair process should result in a “blanket precedent” that would give almost everyone credibly fleeing gang threats in the Norther Triangle at least “temporary withholding of removal” under the Convention Against Torture (“CAT”).
No, the problem is not just that different Immigration Judges have different opinions. It’s that both the composition of the Immigration Court and the administrative case-law have been consciously “rigged” to deny those seeking protection from the Northern Triangle the protection to which they should be entitled under both U.S. and international law.
- Yes, I of all people certainly agree that judges can and should have differing views and philosophies,
- But, at some point, “differences” become “biases.”
- There is no way that those judges whose grant rates are below 10% can actually be applying asylum law in the generous manner set forth by the Supreme Court in Cardoza-Fonseca or the BIA itself in Matter of Mogharrabi.
- Nor are they properly applying the “benefit of the doubt” as it’s supposed to be given according to the UNHCR in systems based on the 1952 Geneva Convention on Refugees.
- No, I wouldn’t “fire” any current Immigration Judges (although I might over time make everyone re-compete for their jobs in a true merit-based selection system). But we do need:
  - An independent Article I U.S. Immigration Court, free from the pernicious political influence that the DOJ has been applying for many years.
  - A real merit selection system for future Immigration Judges that emphasizes expertise in immigration and asylum law and proven ability to deal fairly, effectively, and objectively with the public and which utilizes panels with some members from outside the Federal Government who practice before the Immigration Courts.
  - An Appellate Division that functions like a true independent Appellate Court, with a diverse membership, that will rein in those judges who are biased against asylum seekers and not applying Cardoza-Fonseca.
  - As I’ve pointed out before, things simply can’t happen under the highly biased, xenophobic Jeff Sessions. He is the “perfect storm” of why the Immigration Judiciary must be removed from the DOJ.
- As a historical aside, an unfortunate harbinger of things to come, the BIA actually misapplied their own “immutability/fundamental to identity” test to the facts in Acosta!
  - Of course “taxi drivers in San Salvador” were a PSG! Ask any New Yorker whether being a taxi driver is “fundamental to identity!”
  - Occupational identification, at all levels of society, is one of the most powerful indicators of self-identity and one that we seldom ask individuals to involuntarily change. Think that “truck drivers” aren’t a “PSG?” Just walk into the next Pilot Truck Stop you see on the Interstate in your little black judicial robe and shout that next to the Drivers” Lounge or rest rooms. I think you would find some “strong dissenters.”
  - Or how about going before a group of judges and telling them that being a judge isn’t “fundamental to identity!” I remember when a somewhat “tone-deaf” (but in retrospect, perhaps clairvoyant) invited speaker at one of our past Annual Immigration Judges’ Conferences referred to us as “just highly paid immigration inspectors working for the Attorney General.” He barely got out alive!
  - The BIA ruling in Acosta was “doubly absurd” in the context of 1985. The U.S. was then actively engaged in supporting the Government of El Salvador against the guerrillas. The BIA suggested that the taxi drivers in San Salvador could merely quit their jobs en masse or participate in the guerrillas taxi strike called by the guerrillas. Both of which would have crippled the country of El Salvador and seriously undermined the government we were supporting!
  - In short, the BIA has a long ugly history of twisting the law and the facts against legitimate asylum seekers, particularly those from Latin America.
    - Jeff Sessions, well-known for his long history of xenophobia, racially charged attitudes and actions, and bias against nearly every non-White-male-straight-right-wing-Christian social group in America is on the cusp of making things even worse for vulnerable refugees entitled to our protection by abusing his power as AG and stripping the hard earned asylum rights from abused women — who had to labor through 15 years of wrong BIA decisions, outrageous political maneuvering at the DOJ, and task avoidance at the BIA to win their hard-earned rights in A-R-C-G- in the first place!
    - Only cowards pick on the vulnerable and the dispossessed!

Eventually, long after I’m gone, I’m sure the “truth will out.” However, that will be little help to those currently being railroaded through the travesty that passes for justice in today’s U.S. Immigration Courts or those who have been denied justice in the past.

PWS

05-06-18

GONZO’S WORLD: NO PRETENSE OF DUE PROCESS! – US Immigration Judges and “Kangaroo Courts” Now Part Of Law Enforcement Message – No Justice, No Protection, No Rule Of Law – Just Removals & “Messages!”

Sessions sends new attorneys, judges to the border

By Tal Kopan, CNN

Attorney General Jeff Sessions on Wednesday announced further actions to keep the pressure on illegal immigration at the southwestern border, including more resources to prosecute cases.

Sessions said a total of 35 assistant US attorneys would be added in the five districts along the southern border to allow for more cases to be brought against illegal crossings and human smuggling, and 18 immigration judges would be tapped to hear cases in person and through video conferencing at border state immigration courts.

The moves follow a continued pledge by Sessions to take a hard line on illegal immigration and to try to move cases through the immigration courts more quickly, with the lengthy backlog in those courts blamed for allowing a number of undocumented immigrants to live for years in the US as they await final decisions on their fates.

The announcement also came as dozens of migrants looking to call attention to their plight in Central America have reached the US border, where they are slowly being allowed across to be processed for their asylum claims. The so-called caravan, a yearly event, has become a flashpoint in the immigration debate, especially since it caught the attention of President Donald Trump. Supporters say it exposes the need for asylum laws that offer protections to people fleeing dangerous and deadly persecution in their home countries, but the administration has used the situation to call for tougher laws, claiming migrants coming north are exploiting the US system.

Read more: http://www.cnn.com/2018/05/02/politics/immigration-southern-border-jeff-sessions/index.htm

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

Sessions willfully misrepresents the truth: 1) there, of course, is no “legal line” for these folks to get in; 2) someone fleeing for his or her life can’t get in line anyway; 3) this Administration dismantled the only “in country” refugee processing program in the Northern Triangle.

Hopefully, at some point the Article III Courts will do their job, step in, and put an end to this caricature of justice.

Folks should be given a reasonable chance to get lawyers, an opportunity to prepare, document, and present their cases in a non-coercive setting, access to a truly independent, unbiased judge who is committed to guaranteeing individual rights and the fair application of U.S. protection laws, and a fair decision without being placed under duress by unnecessary detention and separation of families. The Court System should not be run by an individual like Sessions who has already announced his predetermination of the preferred outcomes.

Once fully documented, many of these cases probably could be granted either as asylum cases or as withholding of removal cases under the CAT in short hearings or by stipulation if the law were applied in a fair and unbiased manner. Those who don’t qualify for protection after a fair and impartial adjudication, and a chance to appeal administratively and to the Article III Courts, can be returned under the law.

Given the situation in the Northern Triangle that is driving these individuals to seek refuge, we should 1) reestablish a robust in country refugee processing system for the Northern Triangle; and 2) work with the UNHCR and other stable countries in the Western Hemisphere to equitably distribute those who can’t return to the Northern Triangle.

PWS

05-03-18

CHILD ABUSE: COWARDLY ADMINISTRATION USES FALSE NARRATIVES & DISTORTED FACTS TO ATTACK PROTECTIONS FOR REFUGEE CHILDREN — Our National Morality & Human Decency In Free-fall Under Trump! — “It has been national law and policy that as adults we look out for children …. No longer.”

https://www.nytimes.com/2018/05/01/us/immigration-minors-children.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news

Eli Hager of The Marshall Project in the NY Times:

On April 4, the White House posted a fact sheet on its website warning that legal “loopholes” were allowing tens of thousands of immigrant children who entered the country on their own to remain in the United States.

The next day, another post went up: “Loopholes in Child Trafficking Laws Put Victims — and American Citizens — At Risk.”

And the same week, the Administration for Children and Families, a division of the Department of Health and Human Services not normally known for its politics, announced that it “joins the President in calling for Congress to close dangerous loopholes.”

Over the past month, the Trump administration has taken aim at a set of child protection laws created to protect young people who cross into the United States without a parent or guardian, perhaps aided by smugglers. The administration now sees some of these same youths as a threat, and is portraying the laws as “loopholes” that are preventing the quick deportation of teenagers involved in gangs.

The campaign is aimed at Capitol Hill, but the Trump administration is not waiting for legislation: In a series of at least a dozen moves across multiple federal agencies, it has begun to curtail legal protections for unaccompanied children who cross the border. Many of these safeguards were created by a 2008 law that provided protections for children who might otherwise be forced into labor or prostitution.

The young people affected by the administration’s measures have been fleeing deadly gang violence in Central America since 2014, when civil strife erupted in the region. They are a less politically shielded group of young people than the so-called “Dreamers,” most of whom came to this country as toddlers with their parents.

The new directives appear aimed at detaining more of these youths after their arrival and speeding deportation back to their home countries — where they may face violent reprisals from gangs or other forms of abuse.

“It has been national law and policy that as adults we look out for children,” said Eve Stotland, director of legal services for The Door, a youth advocacy organization in New York. “No longer.”

Endangered Central American Children

Among the many new directives, the State Department in November gave just 24 hours’ notice to endangered children in Guatemala, Honduras and El Salvador before canceling a program through which they could apply for asylum in the United States before getting to the border. About 2,700 of them who had already been approved and were awaiting travel arrangements were forced to stay behind in the troubled region.

The Department of Homeland Security, meanwhile, has sharply cut back on granting a special legal status for immigrant juveniles who have been abused, neglected or abandoned; the program dropped from a 78 percent approval rate in 2016 to 54 percent last year, according to statistics compiled by U.S. Citizenship and Immigration Services. In New York, Texas and elsewhere, the agency in recent months has also begun revoking this protection for children who had already won it, according to legal aid organizations in the states.

The Justice Department has also issued legal clarification for courts and prosecutors about revoking “unaccompanied child” status, which allows minors to have their cases heard in a non-adversarial setting rather than in immigration court with a prosecutor contesting them. (The White House has said that it intends to remove this protection altogether, but has not yet done so.)

And the Office of Refugee Resettlement, which provides social services to vulnerable immigrant youth, is now placing all children with any gang-related history in secure detention instead of foster care, whether or not they have ever been arrested or charged with a crime, according to an August memo to the President’s Domestic Policy Council.

“It’s law enforcement mission creep, and our office is ill-prepared for it,” said Robert Carey, who was director of the refugee agency under President Barack Obama.

A Focus on Gangs

The Trump administration has said that its actions are necessary to stem the tide of violent crime. It has focused on teenagers belonging to or associated with the Salvadoran-American street gang MS-13, which has been linked by the police since 2016 to at least 25 homicides on Long Island — a testing ground for many of the president’s new policies.

About 99 of the more than 475 people arrested in the New York City area during ICE raids for gang members had come to the U.S. as unaccompanied children, a representative for the agency said.

To fortify the “loophole” narrative, official announcements of these ICE actions often point out that a number of those arrested were in the process of applying for various forms of child protection.

Yet 30 of 35 teenagers rounded up during these ICE raids last year and who later filed a class-action lawsuit have subsequently been released because the gang allegations against them were thin, according to the ACLU. And the Sacramento Bee reported that a juvenile detention center in California recently cut back its contract with the federal government and complained that too many immigrant teens were being sent there with no evidence of gang affiliation.

The refugee agency acknowledged in its August memo to the White House that only 1.6 percent of all children in its care have any gang history.

“The arguments they’re making are just really challenging to basic logic,” said Elissa Steglich, a law professor at the University of Texas who teaches a clinic for immigrant families.

“The arguments they’re making are just really challenging to basic logic,” said Elissa Steglich, a law professor at the University of Texas who teaches a clinic for immigrant families.

. . . .

“**************************************

Read the complete article at the link.

Yes, folks, it’s way past time to use the correct term for the Trump Administration’s outrageous, and in many cases illegal, policies directed against primarily Hispanic migrant children: “Child Abuse!”

I met many of these kids and families coming through my court over the years. While there were a tiny number of “bad actors” (which the DHS did a good job of discovering) the vast, vast majority were nothing like what Trump, Sessions and others are describing. They actually much better represented “true American values,” courage, and the “American work ethic” than do Trump and his valueless cronies.

That’s right folks! OUR U.S. Government is using racist-inspired lies to conduct a war against Hispanic children and to illegally return many of them to deadly and life threatening situations! Bad things happen to nations that let bullies and cowards bully, demean, and harm children!

The Trump Administration’s abuse of migrant children and their legal and Constitutional rights could be taken right out of a State Department Country Report on human rights abuses in a Third World Dictatorship. Is this they way YOU want to be remembered by history?

No, Constitutional and statutory protections for children are NOT “loopholes.” What kind of human beings speak such trash? The Trump Administration’s response to the “rule of law” when, as is often the case, it doesn’t fit their White Nationalist agenda is always to tell lies, rail against it, and look for ways around it.

Stand up against the lawless behavior and immoral actions of Trump, Sessions, and the rest of their “hate crew!” Join the “New Due Process Army” and fight against the Trump Administration’s erosion of our national values, morality, and the true “rule of law” (which is there to protect migrants and the rest of us from abuse at the hands of our Government).

Harm to the most vulnerable among us is harm to all!

PWS

05-01-18

AMERICAN INJUSTICE: ADVOCATES COMPLAIN ABOUT US IMMIGRATION JUDGE V. STUART COUCH’S BIAS AGAINST CENTRAL AMERICAN WOMEN SEEKING ASYLUM – APPEALS BOARD AGREES, FINDING COUCH’S RULINGS “CLEARLY ERRONEOUS” IN MANY CASES – Now They Fear That Judge Couch Has A “Kindred Spirit” In The Overtly Xenophobic Jeff Sessions!

Judge in case Sessions picked for immigrant domestic violence asylum review issued ‘clearly erroneous’ decisions, says appellate court

By: Tal Kopan, CNN

Jeff Sessions recently used his special authority as attorney general to review an asylum case that could have sweeping implications for how the US treats immigrants fleeing domestic violence.

Newly released records now show that the case he handpicked, which involves a Central American woman fleeing domestic abuse from her ex-husband, comes from a judge who has been repeatedly rebuked by appellate judges for his multiple rejections of asylum claims from victims of domestic abuse.

Advocates and immigration attorneys fear that Sessions could be using the case as an opportunity to reverse case law that has protected Central American women fleeing violence and sexual assault from husbands by granting them asylum in the US.Stuart

Couch, an immigration judge in Charlotte, North Carolina, has sought to justify denying such women the right to stay in the US in multiple cases, even with the appellate body repeatedly ruling that his findings were “clearly erroneous,” according to records released after a Freedom of Information Act request.

Couch’s decision in the case Matter of A-B-, a convention of naming cases in immigration court that protects the individual’s identity, is a rare opinion that Sessions has referred to himself for review. Sessions has been using a little-known authority to refer immigration cases to himself for review, allowing him to almost single-handedly direct how immigration law is interpreted in this country.

In reviewing Couch’s decision, Sessions invited interested parties to comment on the notion of whether being the victim of a crime can count for asylum, a complicated aspect of asylum law.

The case was initially kept secret by the Justice Department and immigration courts on privacy grounds, but was made public by immigration attorneys as a domestic violence case. Input on the case was due to Sessions on Friday.

It was also later revealed that Sessions decided to consider the case over the objections of the Department of Homeland Security, which had asked him to hold off on diving into the case until the Board of Immigration Appeals, the immigration courts’ appellate body, decided on a request from Couch to take the case back up themselves. Sessions denied DHS’s request.

The Department of Justice declined to comment on why or how Sessions chose the case, and it’s not known how he will rule. When Sessions initially referred himself the case, a department official said he was considering it “because of a lack of clarity in the court system on the issue.”

More on Couch’s decisions: http://www.cnn.com/2018/04/28/politics/jeff-sessions-immigration-courts-domestic-violence-asylum/index.html

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

You should read Tal’s entire article for a profile of just how biased Judge Couch — the second most reversed Judge among hundreds in the Immigration Courts — is in asylum cases. He had 58 cases reversed by the BIA just in 2017, while piling up an “asylum denial rate” 26% above the national average!

And, remember that this “isn’t the Ninth Circuit” by any stretch of the imagination. The BIA is a considered a conservative tribunal with a strong predilection to rule for the DHS to begin with!

I’m glad that the anti-asylum bias that runs through too much of today’s Immigration Court system, and is actually fanned and encouraged by Sessions, is finally being exposed. Even if Congress won’t solve this glaring problem by removing these Courts from the DOJ and creating an independent Immigration Court, with a merit-based hiring system, I hope that the Article III reviewing courts are getting the picture that much of what they are getting from EOIR in the area of asylum denials is the product of an intentionally unfair and biased system.

In this outrageous example, Matter of A-B-, the BIA was actually quite properly trying to “rein in” Judge Couch. Rather than encouraging justice, Sessions actually interfered with the BIA’s actions, even though neither the BIA nor any party had requested his review. What kind of “court system” allows a law enforcement official to control the results? Sounds like something directly out of the DOS Country Report on a Third World Dictatorship!

Judge Couch actually was appointed during the Obama Administration, illustrating the widespread and chronic nature of the problem of anti-asylum biased judging at EOIR. The Obama Administration was not accused of the overtly politicized hiring engaged in by the Bush Justice Department.

Nevertheless, from a statistical standpoint, the opaque, closed, and glacial (two-year average) Obama DOJ selection system was biased in favor of attorneys from government backgrounds and against those with experience representing asylum applicants by an astounding 9 to 1 ratio! Many believe this intentionally produced a BIA and an Immigration Court that would more or less “go along to get along” with construing the law and the facts against asylum applicants from countries considered to be “enforcement priorities” by the Obama Administration.

It’s time to put an end to this charade of justice and Due Process in our Immigration Courts. We need an independent Article I U.S. Immigration Court with a merit-based selection system. If not, we need a “helpful intervention” by the Article III Courts to end this chronically unfair and dysfunctional administration of justice by the Department of Justice!

PWS

04-28-18

CALL OUT THE CAVALRY, WE NEED REINFORCEMENTS! – “CARAVAN” OF A FEW HUNDRED MEEK REFUGEE WOMEN & CHILDREN REACH S. BORDER, THREATEN TO EXERCISE LEGAL RIGHTS TO APPLY FOR ASYLUM, AS TRUMP, SESSIONS, NIELSEN, HOMAN, & CO. COWER IN FEAR WITHIN “FORTRESS AMERICA” — Trump Administration Views Individual Constitutional Rights As “Dangerous Loopholes” & “Threats To National Security” That Must Be Eliminated – “Grandfathering” Sought For Current & Former Trump Officials, Friends, Family Who Might Need To Assert Fifth Amendment Right Against Self-Incrimination!

https://www.washingtonpost.com/world/national-security/at-the-us-border-a-diminished-migrant-caravan-readies-for-an-unwelcoming-reception/2018/04/27/7946a154-4a52-11e8-827e-190efaf1f1ee_story.html?utm_term=.cd296045d4c6

Nick Miroff reports for the Washington Post:

TIJUANA, Mexico — The American president, a former real estate mogul, does not want Byron Garcia in the United States. But the Honduran teenager was too busy building his own hotel empire this week to worry much about that.

Vermont Avenue and Connecticut Avenue were his. Now he was looking to move up-market.

The mini-Monopoly board on the dusty floor of the migrant shelter was small, but it fit well in the small space beside the tents. His older sister, Carolina, rolled a 2 and landed on Oriental Avenue.

“That’ll be $500,” said Garcia, 15, gleefully extending his hand. “I love this game!”

Garcia is coming to America on Sunday. Or maybe not. His mother, Orfa Marin, 33, isn’t sure it will be a good day to walk up to the border crossing and tell a U.S. officer that her family needs asylum. She knows President Trump wants to stop them.

Marin and her three children are among the 300 or so remaining members of the migrant caravan who have arrived here at the end of a month-long geographic and political odyssey, a trip that has piqued Trump’s Twitter anger and opened new cracks in U.S.-Mexico relations.

Central American migrant children play Monopoly at the Movimiento Juventud 2000 shelter on April 26, 2018 in Tijuana, Mexico. (Carolyn Van Houten/The Washington Post)

The organizers of the caravan say they are planning to hold a rally Sunday at Friendship Park, the international park where a 15-foot border fence splits the beach. From there, activists and attorneys plan to lead a group of the migrants to the U.S. port of entry at San Ysidro, Calif., where they will approach U.S. Customs and Border Protection officers and formally request asylum.

. . . .

Trump has ordered U.S. soldiers to deploy and Homeland Security officials to block the migrants. But the diminished version of the caravan that has arrived here, mostly women and children, has only underscored its meekness.

Migrant families arrive on a bus at the Ejercito de Salvacion shelter on April 26, 2018 in Tijuana, Mexico after driving from Mexicali, Mexico. (Carolyn Van Houten/The Washington Post)

The families are drained after weeks of travel, coughing children and pinto beans. They have crowded here into shelters in the city’s squalid north end, where the sidewalks are smeared with dog droppings and skimpily dressed women hand out drink promotions among the strip clubs and brothels. The tall American border fence is two blocks away.

Children play on the sidewalks outside the shelters, the boredom broken whenever a car with donations arrives to drop off clothes and toys.

Central Americans migrants in Mexico have long been treated as a kind of renewable natural resource, ripe for exploitation by thieves, predators and politicians. The geopolitical importance attached to this particular group was a sign to many here that the U.S. president had recognized an opportunity, too.

“We’re not terrorists or bad people,” Marin said.

Regardless of its size, Trump officials have measured this caravan in symbolic terms, as an egregious example of the “loophole” they want to shut and an immigration system whose generosity is being abused, they say, by hundreds of thousands of Central Americas trying to dupe it.

. . . .

“These people have no option but to seek refuge in another country, and they have every right to seek asylum, they have decided to face the consequences and to be strong in demanding what is their right,” said Leonard Olsen, 26, a law student and one of several caravan organizers from the United States. He wore a tattered Philadelphia Eagles cap and arrived in Tijuana on Thursday with a busload of women and children.

. . . .

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

I can understand why guys like Trump, Sessions, Nielsen, and Homan would be scared by mothers with talented kids who show the kind of courage, honesty, humanity, and respect for law that they themselves so conspicuously lack.

Without 5th Amendment protections, who would join the Trump Administration?

PWS

04-28-18

WITH HELP FROM GIBSON DUNN, “GANG OF 16” RETIRED US IMMIGRATION JUDGES FILES AMICUS BRIEF OPPOSING AG’S INTERFERENCE IN MATTER OF A-B-

HERE’S THE BRIEF:

AB-Brief Amici Curiae of Sixteen Former Immigration Judges and Members of t…

HERE’S THE “STATEMENT OF INTEREST:”

Amici Curiae are sixteen former immigration judges and members of the Board of Immigration Appeals (“Board”). Out of respect for the law to which they have dedicated their careers, Amici feel compelled to file this brief in support of Respondent. Amici are deeply concerned about the procedural violations in this case—in particular the Attorney General’s certification of a question that was not properly considered by the Immigration Judge and was not considered at all by the Board. This complete disregard for established procedure is alarming. It plainly violates binding federal regulations governing the narrow circumstances under which Attorney General certification is permitted and it raises serious due process concerns.

Ultimately, it is within Congress’s authority—not the Attorney General’s—to define the boundaries of asylum. And Congress has already determined that a person can qualify for asylum based on persecution that independently might constitute private criminal activity.

Amici urge the Office of the Attorney General not to take any further action on a question that is not properly before it, and therefore urge that the referral order be vacated.

HERE’S THE TOC:

TABLE OF CONTENTS

Page INTRODUCTION ………………………………………………………………………………………………………….. 1 STATEMENT OF INTEREST OF AMICI CURIAE………………………………………………………….. 1 BACKGROUND ……………………………………………………………………………………………………………. 6 ARGUMENT …………………………………………………………………………………………………………………. 8

This case is not properly before the Attorney General ……………………………………. 8

Federal regulations require that the Immigration Judge issue a
decision on asylum before certifying a case to the Board. ……………………. 9

The Attorney General may only review a Board decision, but there
was none………………………………………………………………………………………. 12

Bypassing the Board nullifies critical procedural safeguards…………………………. 13

The Board, a neutral and independent body, with deep knowledge
of its own precedent, should consider the effect of new case law on
that precedent in the first instance. ………………………………………………….. 13

Bypassing the Board raises serious due process concerns…………………… 14

The Attorney General cannot override Congress’s judgment under the
guise of a procedural mechanism……………………………………………………………….. 16

“Persecution” can be carried out or threatened by private actors that the government cannot or will not control………………………………………………………… 19

CONCLUSION…………………………………………………………………………………………………………….. 21

HERE’S THE “GANG OF 16”

 The Honorable Steven Abrams served as an Immigration Judge at the New York, VarickStreet, and Queens Wackenhut Immigration Courts in New York City. Prior to his appointment to the bench, he worked as a Special U.S. Attorney in the Eastern District of New York, and before that as District Counsel, Special Counsel for criminal litigation, and general attorney for the former Immigration and Naturalization Service (“INS”).

 The Honorable Sarah M. Burr served as an Immigration Judge in New York starting in 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full time until her retirement in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit.

 The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He now works in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. He received the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

 The Honorable George T. Chew served as an Immigration Judge in New York from 1995 to 2017. Previously, he served as a trial attorney at the former INS.

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 The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford.

 The Honorable Cecelia M. Espenoza served as a Member of the Board from 2000 to 2003 and in the Executive Office for Immigration Review (“EOIR”) Office of the General Counsel from 2003 to 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. She now works in private practice as an independent consultant on immigration law. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997–2000) and the University of Denver College of Law (1990–97), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on immigration law. She received the Outstanding Service Award from the Colorado Chapter of AILA in 1997.

 The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and as an attorney advisor to the Board from 2013 until her retirement in 2016. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

 The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013. He is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. From 1975 to 1982, he served in various positions with the former INS, including as a general attorney, naturalization attorney, trial attorney, and deputy assistant

3

commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration-court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor at the University of Maryland School of Law, also teaching immigration law. He is also a past board member of the Immigration Law Section of the Federal Bar Association.

 The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board for six months between 2010 and 2011. She previously worked in private practice for ten years, focusing on immigration law. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King currently works as an advisor on removal proceedings.

 The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench this January after twenty-seven years. Before her time on the bench, she worked in several roles, including as a consultant to various nonprofit organizations on immigration matters (including Catholic Charities and Volunteers of Legal Services) and as a staff attorney for the Legal Aid Society, Immigration Unit, in New York.

 The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to

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2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

 The Honorable Susan Roy started her legal career as a Staff Attorney at the Board, a position she received through the Attorney General Honors Program. She served as an Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. She has been in private practice for nearly five years, and two years ago, opened her own immigration law firm. She is the New Jersey AILA Chapter Liaison to EOIR and is the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association.

 The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, VA. He previously served as Chairman of the Board from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1979 to 1981 and 1986 to 1987. He was the managing partner of the Washington, DC office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, DC office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also consults, speaks, writes, and lectures at various forums throughout the country on immigration law topics.

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 The Honorable William Van Wyke served as an Immigration Judge from 1995 until 2015 in New York City and York, PA.

 The Honorable Gustavo D. Villageliu served as a Member of the Board from July 1995 to April 2003. He then served as Senior Associate General Counsel for the EOIR until he retired in 2011. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

 The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details to the Tacoma, Port Isabel (TX), Boise, Houston, Atlanta, Philadelphia, and Orlando immigration courts. Previously, she practiced immigration law from 1980 to 1995 in her own firm in San Jose, California. She served as National President of AILA from 1989 to 1990 and was a national AILA officer from 1985 to 1991. She also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in the immigration law field.

HERE ARE THE ATTORNEYS AT GIBSON DUNN WHO MADE THIS HAPPEN:

Amer S. Ahmed

Ronald Kirk

Megan B. Kiernan

Lalitha D. Madduri

Chelsea G. Glover

Counsel for Amici Curiae

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

Thanks to all for making this happen. Great teamwork in the name of Due Process!

Special thanks to our colleague Judge Lory Diana Rosenberg who served as our “Group Leader” in working with Gibson Dunn and to Judge Jeffrey Chase for assembling the group and putting the “finishing touches” on the filing.

PWS

04-27-18

CRUEL & UNUSUAL PUNISHMENT: DHS KAKISTOCRACY WANTS TO TARGET FAMILIES WITH CHILDREN FOR SEPARATION AND CRIMINAL PROSECUTION OF PARENTS AS PART OF WAR ON HUMANITY AT OUR SOUTHERN BORDER – Every American Will Bear The Stain Of Our Government’s Actions!

https://www.washingtonpost.com/local/immigration/top-homeland-security-officials-urge-criminal-prosecution-of-parents-who-cross-border-with-children/2018/04/26/a0bdcee0-4964-11e8-8b5a-3b1697adcc2a_story.html

Maria Sacchetti reports for WashPost:

The nation’s top immigration and border officials are urging Homeland Security Secretary Kirstjen Nielsen to detain and prosecute all parents caught crossing the Mexican border illegally with their children, a stark change in policy that would result in the separation of families that until now have mostly been kept together.

If approved, the zero-tolerance measure could split up thousands of families, although officials say they would not prosecute those who turn themselves in at legal ports of entry and claim asylum. More than 20,000 of the 30,000 migrants who sought asylum during the first quarter — the period from October-December — of the current fiscal year crossed the border illegally.

In a memorandum that outlines the proposal and was obtained by The Washington Post, officials say that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the steadily rising number of attempted crossings. Most parents now caught crossing the border illegally with their children are quickly released to await civil deportation hearings.

The memo sent to Nielsen on Monday — and signed by acting Director of Immigration and Customs Enforcement Thomas Homan, Director of Citizenship and Immigration Services L. Francis Cissna and Customs and Border Protection Commissioner Kevin K. McAleenan — said attempted crossings by parents with children increased to nearly 700 a day last week, the highest level since 2016. The officials predicted that the number will continue to rise if Nielsen does not act.

Lee Gelernt, an attorney with the American Civil Liberties Union who has filed a federal lawsuit in California over earlier instances of family separations at the border, said the proposal would make “children as young as 2 and 3 years old pawns in a cruel public policy experiment.”

. . . .

Philip G. Schrag, a Georgetown law professor and asylum expert, said that expanding the forced separation of parents and children could cause severe psychological harm to families that ultimately might have legal grounds under federal asylum law to remain in the United States permanently.

“I think it’s absolutely wrenching psychologically and terrible for both the children and the parents,” he said. “What are we doing to those children psychologically that will haunt us years down the road if they become Americans?”

Federal officials say asylum applications have skyrocketed in recent years, raising concerns about fraud. Advocates for immigrants say those seeking asylum have legitimate claims under federal law and are fleeing some of the world’s most dangerous countries.

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

Read Maria’s complete article at the link.

I associate myself completely with the remarks of my good friend and Georgetown Law colleague Professor Phil Schrag. Cruelty to children is stupid, counterproductive — children are our future — and morally wrong. It will definitely haunt us as a country for generations to come. It’s largely what I said before about the misguided policies of the Obama Administration. But, as with many things, the Trump Administration takes every dumb and wrong immigration policy of the past and multiplies it.

PWS

04-27-18

MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
**************************************************

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

Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

Category: Domestic Violence

Harm to the most vulnerable among us is harm to all. Join the New Due Process Army and fight for the legal rights of refugees!

CORTEZ MASTO, COLLEAGUES CALL ON SESSIONS TO UPHOLD PROTECTIONS FOR LGBTQ ASYLUM SEEKERS FLEEING PERSECUTION

CRUEL & UNUSUAL PUNISHMENT: DHS KAKISTOCRACY WANTS TO TARGET FAMILIES WITH CHILDREN FOR SEPARATION AND CRIMINAL PROSECUTION OF PARENTS AS PART OF WAR ON HUMANITY AT OUR SOUTHERN BORDER – Every American Will Bear The Stain Of Our Government’s Actions!

Country	2016 Report	2017 Report	% Reduction
El Salvador	1364	423	69%
Guatemala	1212	283	77%
Honduras	1235	365	70%

Jun 3 3rd-Generation Gangs and Political Opinion

Harm to the most vulnerable among us is harm to all. Join the New Due Process Army and fight for the legal rights of refugees!

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Endangered Central American Children

A Focus on Gangs

Yes, folks, it’s way past time to use the correct term for the Trump Administration’s outrageous, and in many cases illegal, policies directed against primarily Hispanic migrant children: “Child Abuse!”

Harm to the most vulnerable among us is harm to all!

PWS

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