Nexus – Page 10 – immigrationcourtside.com

SESSIONS OVERRULES MATTER OF A-R-C-G-, TRASHES VICTIMS OF DOMESTIC VIOLENCE AND VICTIMS OF GANGS SEEKING ASYLUM, DIRECTS U.S. IMMIGRATION JUDGES TO CONSIDER EVERY POSSIBLE WAY OF DENYING ASYLUM APPLICATIONS! – MATTER OF A-B-, 27 I&N DEC. 316 (AG 2018) – Decision Appears Geared To Using “Maxo Asylum Denials” As Enforcement Tool/Deterrent Along The Southern Border! – Circuit Court Battles Sure To Follow As Advocacy Groups Ramp Up To Defend Asylum System!

EOIR HEADNOTE:

(1)Matter of A-R-C-G-, 26 I&N Dec. 338 (BIA 2014) is overruled. That decision was wrongly decided and should not have been issued as a precedential decision.

(2)An applicant seeking to establish persecution on account of membership in a “particular social group” must demonstrate: (1) membership in a group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; and (2) that membership in the group is a central reason for her persecution. When the alleged persecutor is someone unaffiliated with the government, the applicant must also show that her home government is unwilling or unable to protect her.

(3)An asylum applicant has the burden of showing her eligibility for asylum. The applicant must present facts that establish each element of the standard, and the asylum officer, immigration judge, or the Board has the duty to determine whether those facts satisfy all of those elements.

(4)If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.

(5)The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

(6)To be cognizable, a particular social group must exist independently of the harm asserted in an application for asylum.

(7)An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims.

(8)An applicant seeking asylum based on membership in a particular social group must clearly indicate on the record the exact delineation of any proposed particular social group.

(9)The Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum.

KEY QUOTES:

For these and other reasons, I vacate the Board’s decision and remand for further proceedings before the immigration judge consistent with this opinion. In so doing, I reiterate that an applicant for asylum on account of her membership in a purported particular social group must demonstrate: (1) membership in a particular group, which is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct within the society in question; (2) that her membership in that group is a central reason for her persecution; and (3) that the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control. See M-E-V-G-, 26 I&N Dec. at 234–44; W-G-R-, 26 I&N Dec. at 209–18, 223–24 & n.8. Furthermore, when the applicant is the victim of private criminal activity, the analysis must also “consider whether government protection is available, internal relocation is possible, and persecution exists countrywide.” M-E-V- G-, 26 I&N Dec. at 243.

Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.1 While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum or withholding application based on membership in a particular social group, in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address. The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

1 Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution. See 8 U.S.C. § 1225(b)(1)(B)(v) (requiring a “significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 1158 of this title [8 U.S.C. § 1158]”).

. . . .

A-R-C-G- was wrongly decided and should not have been issued as a precedential decision. DHS conceded almost all of the legal requirements necessary for a victim of private crime to qualify for asylum based on persecution on account of membership in a particular social group.8 To the extent that the Board examined the legal questions, its analysis lacked rigor and broke with the Board’s own precedents.

. . . .

When an asylum applicant makes inconsistent statements, the immigration judge is uniquely advantaged to determine the applicant’s credibility, and the Board may not substitute its own view of the evidence on appeal. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 334 (2d Cir. 2006) (“[W]here the [immigration judge]’s adverse credibility finding is based on specific examples in the record of inconsistent statements by the

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asylum applicant about matters material to his claim of persecution, or on contradictory or inherently improbable testimony regarding such matters, a reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise.” (quotation omitted)). Under the REAL ID Act, “[t]here is no presumption of credibility” in favor of an asylum applicant. Pub. L. No. 109-13, div. B, §§ 101(a)(3), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)). Furthermore, the identified inconsistencies do not have to be related to an applicant’s core asylum claim to support an adverse credibility determination: “Considering the totality of circumstances, and all relevant factors, a trier of fact may base a credibility determination on . . . the consistency between the applicant’s or witness’s written and oral statements . . . , the internal consistency of each such statement, [and] the consistency of such statements with other evidence of record . . . , without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other factor.” Id. (emphasis added). “[O]missions, inconsistent statements, contradictory evidence, and inherently improbable testimony are appropriate bases for making an adverse credibility determination,” and the existence of “only a few” such issues can be sufficient to make an adverse credibility determination as to the applicant’s entire testimony regarding past persecution. Djadjou v. Holder, 662 F.3d 265, 273–74 (4th Cir. 2011).

. . . .

The Board also erred when it found that the respondent established the required nexus between the harm she suffered and her group membership. Whether a purported persecutor was motivated by an alien’s group affiliation “is a classic factual question,” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 247–48 (4th Cir. 2017) (internal quotation marks omitted), which the Board may overturn only if “clearly erroneous.”

The Board stated that “the record indicates that the ex-husband abused [the respondent] from his position of perceived authority, as her ex-husband and the father of her children.” A-B- at *3. From this, the Board held, in a conclusory fashion, that the “record as a whole supports a finding that the respondent’s membership in the particular social group of ‘El Salvadoran women who are unable to leave their domestic relationship where they have children in common’ is at least one central reason that he ex-husband abused her.” Id. While citing the standard of review, the Board did not apply it in summarily dismissing the immigration judge’s findings. Moreover, the Board’s legal analysis was deficient. The Board, required to find “clear error” of a factual finding, pointed to no record evidence that respondent’s husband mistreated her in any part “on account of” her membership in the particular social group of “El Salvadoran women who are unable to leave their domestic relationship where they have children in common.” The Board cited no evidence that her husband knew any such social group existed, or that he persecuted wife for reasons unrelated to their relationship. There was simply no basis in the Board’s summary reasoning for overturning the immigration judge’s factual findings, much less finding them clearly erroneous.

The Board also erred when it overruled the immigration judge’s finding that the respondent failed to demonstrate that the government of El Salvador was unable or unwilling to protect her from her ex-husband. This inquiry too involved factual findings to which the Board did not give proper deference. No country provides its citizens with complete security from private criminal activity, and perfect protection is not required. In this case, the respondent not only reached out to police, but received various restraining orders and had him arrested on at least one occasion. See A-B- at *14–15 (Immig. Ct. Dec. 1, 2015).

For many reasons, domestic violence is a particularly difficult crime to prevent and prosecute, even in the United States, which dedicates significant

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resources to combating domestic violence. See, e.g., Office of Justice Programs, U.S. Dep’t of Justice, Extent, Nature, and Consequences of Intimate Partner Violence (2000). The persistence of domestic violence in El Salvador, however, does not establish that El Salvador was unable or unwilling to protect A-B- from her husband, any more than the persistence of domestic violence in the United States means that our government is unwilling or unable to protect victims of domestic violence. In short, the Board erred in finding, contrary to the record and the immigration judge’s findings, that El Salvador was unable or unwilling to protect A-B- and that she thus had no choice but to flee the country.

D.

The Board, immigration judges, and all asylum officers should consider the following points when evaluating an application for asylum. First, an applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate, on the record and before the immigration judge, the exact delineation of any proposed particular social group. See Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189, 190–91 (BIA 2018); Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). The immigration judge has a responsibility to “ensure that the specific social group being analyzed is included in his or her decision,” as it critical to the Board’s “appellate review that the proposed social group is clear and that the record is fully developed.” Matter of W-Y-C- & H-O-B-, 27 I&N Dec. at 191. The Board must also remember that it cannot sustain an asylum applicant’s appeal based on a newly articulated social group not presented before or analyzed by the immigration judge. Id. at 192; see also, e.g., Baltti v. Sessions, 878 F.3d 240, 244–45 (8th Cir. 2017) (finding no jurisdiction to review a newly defined social group because the claim based on “membership in that narrowed social group” had not been raised below); Duarte-Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014) (declining to address a particular social group raised for the first time on appeal).

Furthermore, the Board, immigration judges, and all asylum officers must consider, consistent with the regulations, whether internal relocation in the alien’s home country presents a reasonable alternative before granting asylum. Asylum applicants who have “not established past persecution . . . bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or government- sponsored.” 8 C.F.R. § 1208.13(b)(3)(i). An immigration judge, “in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution” if it is “found by a preponderance of the evidence” that “the applicant could avoid future

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persecution by relocating to another part of the applicant’s country of nationality, . . . and under all the circumstances, it would be reasonable to expect the applicant to do so.” Id. § 1208.13(b)(1)(i). Beyond the standards that victims of private violence must meet in proving refugee status in the first instance, they face the additional challenge of showing that internal relocation is not an option (or in answering DHS’s evidence that relocation is possible). When the applicant has suffered personal harm at the hands of only a few specific individuals, internal relocation would seem more reasonable than if the applicant were persecuted, broadly, by her country’s government.

Finally, there are alternative proper and legal channels for seeking admission to the United States other than entering the country illegally and applying for asylum in a removal proceeding. The asylum statute “is but one provision in a larger web of immigration laws designed to address individuals in many different circumstances,” and “[t]o expand that statute beyond its obviously intended focus is to distort the entire immigration framework.”Velasquez, 866 F.3d at 199 (Wilkinson, J., concurring). Aliens seeking a better life in America are welcome to take advantage of existing channels to obtain legal status before entering the country. In this case, A-B- entered the country illegally, and when initially apprehended by Border Patrol agents, she stated that her reason for entering the country was “to find work and reside” in the United States. Aliens seeking an improved quality of life should seek legal work authorization and residency status, instead of illegally entering the United States and claiming asylum.12

12 Asylum is a discretionary form of relief from removal, and an applicant bears the burden of proving not only statutory eligibility for asylum but that she also merits asylum as a matter of discretion. 8 U.S.C. §§ 1158(b)(1), 1229a(c)(4)(A)(ii); see also Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004). Neither the immigration judge nor the Board addressed the issue of discretion regarding the respondent’s asylum application, and I decline to do so in the first instance. Nevertheless, I remind all asylum adjudicators that a favorable exercise of discretion is a discrete requirement for the granting of asylum and should not be presumed or glossed over solely because an applicant otherwise meets the burden of proof for asylum eligibility under the INA. Relevant discretionary factors include, inter alia, the circumvention of orderly refugee procedures; whether the alien passed through any other countries or arrived in the United States directly from her country; whether orderly refugee procedures were in fact available to help her in any country she passed through; whether she made any attempts to seek asylum before coming to the United States; the length of time the alien remained in a third country; and her living conditions, safety, and potential for long-term residency there. See Matter of Pula, 19 I&N Dec. 467, 473–74 (BIA 1987).

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As my former BIA colleague Judge Lory Rosenberg used to say “there are lots of ways to deny an asylum application.” Sessions runs through most them with a tone that clearly encourages Immigration Judges to “just find a way to say no as quickly as possible.”

Additionally, he’s basically directing Asylum Officers to find no “credible fear” in almost all domestic violence and gang-related cases, thus cutting off hearings without effective Article III judicial review under the current state of the law. That’s likely to speed up the “deportation railway.”

It’s likely that this decision also will fulfill Sessions’s dream of mass denials of asylum at the Immigration Judge stage that will be more or less summarily affirmed by the BIA. Any Immigration Judge who doesn’t “get” Session’s strong anti-asylum message would have to be pretty slow on the uptake.

It seemed totally disingenuous for Sessions to pontificate that individuals should go through the “legal immigration system” while publicly trashing legal immigrants as “job stealers” and favoring massive cuts to legal immigration. But, intellectual honesty has never been one of this Attorney General’s strong points.

The “asylum denial express” might have some difficulty in the Courts of Appeals, however. Not all such courts are eager to “rubber stamp” hasty denials. And, by encouraging Immigration Judges to look for “any reason to deny” to cut corners, and avoid having to analyze the entire case, Sessions is likely to end up with sloppy work and lots of Circuit Court remands for “do overs.” At a minimum, that’s going to add to the already out of control Immigration Court backlog.

PWS

06-11-18

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

REIGN OF LIES: Trump, Sessions, & Nielsen Continue Lie About Separating Migrant Children – NO, It Isn’t Required By Law!

https://www.washingtonpost.com/politics/trump-is-blaming-democrats-for-separating-migrant-families-at-the-border-heres-why-this-isnt-a-surprise/2018/05/27/c07810d8-61d3-11e8-a69c-b944de66d9e7_story.html

reports for the Washington Post:

President Trump’s attempt to blame Democrats for separating migrant families at the border is renewing a political uproar over immigration, an issue that has challenged Trump throughout his presidency and threatens to grow more heated as he imposes more restrictions to stem the flow of illegal immigration.

In one of several misleading tweets during the holiday weekend, Trump pushed Democrats to change a “horrible law” that the president said mandated separating children from parents who enter the country illegally. But there is no law specifically requiring the government to take such action, and it’s also the policies of his own administration that have caused the family separation that advocacy groups and Democrats say is a crisis.

In April, more than 50,000 migrants were apprehended or otherwise deemed “inadmissible,” and administration officials have made clear that children will be separated from parents who enter the country illegally and are detained. The surge in illegal border crossings is expected to continue as the economy improves and warmer weather arrives.

“I keep imagining somebody taking my kids from me. My kids are 2 and 4 years old, and that’s the age of some of the children that have been separated from their parents at the border,” said Rep. Joaquin Castro (D-Tex.), who is helping to organize a Thursday rally in San Antonio to highlight the issue. “When a lot of people hear the story, they get a similar reaction. They can’t imagine why this would be a standard government practice.”

Trump’s deflection offers a familiar playbook, critics of the administration’s policies say. In their view, Trump’s most recent comments are strategically similar to tactics he used when he ended the Obama-era Deferred Action for Childhood Arrivals program and then insisted on hard-line measures in a bill to permanently protect “dreamers.”

“He used DACA kids as a bargaining chip, and it didn’t work,” said Kevin Appleby, the senior director of international migration policy at the Center for Migration Studies, a nonpartisan think tank. “So now he’s using vulnerable Central American families for his nativist agenda. It’s shameless.”

. . . .

“The law does not require this inhumane and immoral action – DHS could stop it today. We do not need a law. This is a punt. They literally just ran this bad-faith play with DACA,” Sen. Brian Schatz (D-Hawaii) tweeted Sunday. “They are going to use the suffering of children as political leverage for the wall, and we must refuse to participate, because if this kind of hostage taking is ever successful it will never stop.”

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Read the complete article at the link.

No, protections for refugees and children aren’t “loopholes!” They are important protections for those who have a right to seek a fair determination of their applications for refuge in the United States under our laws!

The statement that families can be “deported together” is simply more proof that Trump, Nielsen, and Sessions have already prejudged these cases. Although many are in fact denied, many more would be granted, possibly a majority, if individuals were given fair access to counsel, as the law contemplates, and the Government were actually required to correctly apply asylum and protection laws. Instead, for years the government has been getting away with politically influenced, unduly restrictive legal constructions and also coercing individuals with detention, entering bogus “in absentia orders” against them, or otherwise hustling them through the system without Due Process. Most of these tactics are directed specifically against those seeking protection from the Northern Triangle of Central America — one of the most dangerous regions in the world.

Join the New Due Process Army and stand up against the dishonest scofflaw public officials administering Trump’s sick immigration policies.

PWS

05-28-18

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

BABY DONNIE THROWS TANTRUM, THREATENS TO DECLARE WAR ON AMERICA IF HE DOESN’T GET HIS WALL!

https://www.cnn.com/2018/05/05/politics/donald-trump-border-wall-close-country-remark/index.html

Elizabeth Landers reports for CNN:

(CNN)President Donald Trump seemed to float a new idea about border control during a tax reform roundtable in Ohio.

The President was in the midst of criticizing Democrats during a riff about border security when he slipped in the idea that people might “have to think about closing up the country.”

“They don’t want the wall, but we’re going to get the wall, even if we have to think about closing up the country for a while,” Trump said. “We’re going to get the wall. We have no choice. We have absolutely no choice. And we’re going to get tremendous security in our country.”

Trump then mentioned the notion a second time, saying, “And we may have to close up our country to get this straight, because we either have a country or we don’t. And you can’t allow people to pour into our country the way they’re doing.”

It was not immediately clear what Trump meant by the remarks. CNN has reached out to the White House for comment.

Democratic Rep. Pramila Jayapal of Washington said Saturday in an interview with CNN’s Ana Cabrera that Trump “is absolutely out of his mind to think that is any kind of a reasonable solution for our economy or compassionate or in line with our values.”

“This President has done everything he can every time he’s in trouble to turn around and try to turn it against immigrants, and it really deeply saddens me,” Jayapal said.

. . .

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

Read the full article at the link.

Ironically, building the wall would do nothing to stop individuals from appearing at U.S. ports of entry and applying for asylum as they are completely entitled to do under both U.S. law and international conventions to which we are party. Indeed, that’s what almost all the remaining members of the “intentionally overhyped by Trump Caravan” did. Moreover the wall is unlikely to stop professional smugglers who can easily outsmart any physical barriers. At best, it might further enrich smugglers and kill more migrants by allowing smugglers to charge more money for more dangerous crossings.

On the other hand, a robust system for granting refugee status in the Northern Triangle and a fairer and more efficient asylum system for those who apply at the port of entry would almost certainly reduce the number of unlawful border crossings, while saving lives, and allowing the Border Patrol to allocate resources more toward drug smuggling and others who might actually threaten the security of the U.S. And a larger, more robust, and more realistic legal work visa program would also dramatically decrease unlawful border crossings.

PWS

)5-06-18

READ MY SPEECH TO THE ABA COMMISSION ON IMMIGRATION: “CARICATURE OF JUSTICE: Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts!”

CARICATURE OF JUSTICE:

Stop The Attack On Due Process, Fundamental Fairness, and Human Decency In Our Captive, Dysfunctional U.S. Immigration Courts

ABA COMMISISON ON IMMIGRATION

WASHINGTON, D.C.

MAY 4, 2018

Thank you, Madam Moderator. I am pleased to be on this distinguished panel. And, I am particularly delighted that EOIR Director James McHenry has joined us.

Clearly, this isn’t about Director McHenry, who by my calculations was still in law school when the wheels began coming off the EOIR wagon. Also, as a former Senior Executive in past Administrations of both parties, I’m familiar with being sent out to “defend the party line” which sometimes proved to be “mission impossible.”

For me, no more disclaimers, no more bureaucratic BS, no more sugar coating, no more “party lines.” I’m going to “tell it like it is” and what you need to do to reestablish Due Processand fundamental fairnessas the only acceptable missionof the United States Immigration Courts.

It’s still early in the morning, but as Toby Keith would say, “It’s me, baby, with your wakeup call!”

Nobody, not even Director McHenry, can fix thissystem while it remains under the control of the DOJ. The support, meaningful participation, and ideas of the judges and staff who work within it and the public,particularly the migrants and their lawyers, who rely on it, is absolutely essential.

But, the current powers that be at the DOJ have effectively excludedthe real stakeholdersfrom the process. Worse,they have blamed the victims,you, the stakeholders, for the very problems created by political meddling at the DOJ. We’re on a path “designed and destined for failure.”

The decline of the Due Process mission at EOIR spans several Administrations. But, recently, it has accelerated into freefallas the backlog largely created by “Aimless Docket Reshuffling” (“ADR”) by political officials at the DOJ over the past several Administrations and chronic understaffing have stripped U.S. Immigration Judges of all effective control over their dockets, made them appear feckless, and undermined public confidence in the fairness, independence, and commitment to individual Due Process of our Immigration Courts.

The Due Process Clause of the Fifth Amendment is there for one, and only one reason. To protect all individuals in the United States, not just citizens, from abuses by the Federal Government. In simple terms, it protects individuals appearing in Immigration Court from overstepping and overzealous enforcement actions by the DHS. It is notthere to insure either maximum removals by the DHS or satisfaction of all DHS enforcement goals.

Nor is it there to “send messages” – other than the message that individuals arriving in the United States regardless of statuswill be treated fairly and humanely. It serves solely to protect the rights of the individual, and definitelynotto fulfill the political agenda of any particular Administration.

The “EOIR vision” which a group of us in Senior Management developed under the late Director Kevin Rooney was to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that noble vision is now dead and buried.

In fact, when I mentioned it to a recently hired EOIR attorney just prior to my retirement in 2016, she looked at me as if I were from outer space. Indeed, nobody in his or her right mind would seriously suggestthat today’s Immigration Courts are on track to meet that vision or that it motivates the actions of today’s DOJ.

No, instead, the Department of Justice’s ever-changing priorities, Aimless Docket Reshuffling, and morbid fascinationwith increased immigration detention as a means of deterrence have turned our Immigration Court system back into a tool of DHS enforcement. Obviously, it is long past time for an independentU.S. Immigration Court to be established outside the Executive Branch.

I work with a group of retired colleagues on various Amicus Briefs trying to defend and restore the concept of Due Process in Immigration Court. I doubt that it’s what any of us thought we’d be doing in retirement. As one of those colleagues recently said, it’s truly heartbreaking for those of us who devoted large segments of our professional lives to improving Due Process and fairness in the Immigration Courts to see what has become of those concepts and how they are being mocked and trashed on a daily basis in our Immigration Court system.

Those of us watching from retirement treat each day’s EOIR news with a mixture of disbelief, disappointment, anger, and total outrage. But, it drives and inspires us to actionto halt and reverse the travesty of justice now taking place in our US Immigration Courts.

I am one of the very few living participants in the 1983 creation of EOIR when it was spun off from the “legacy INS” to create judicial independence and better court administration during the Reagan Administration.

And, I can assure you that the Reagan Administration was not filled with “knee jerk liberal.” No, those were tough, but fair minded and practical, law enforcement officials. The other “survivors” who come to mind are former Director and BIA Judge Tony Moscato and then Associate Attorney General Rudy Giuliani, whom I understand is “otherwise occupied” these days.

Sadly, although EOIR appeared to have prospered for a period of time after its creation, it has now regressedto essentially the same problematic state it was in prior to 1983: lack of actual and perceived judicial independence; a weak appellate board that fails to function as an independent judiciary promoting due process; an unwieldy structure, poor administrative support, and outdated technology; a glacial one-sided judicial selection process that effectively has eliminated private sector attorneys with actual experience in representing immigrants and asylum applicants in court from the 21^stCentury Immigration Judiciary; and an overwhelming backlog with no end in sight.

Only now, the backlog is multiples of what it was back in 1983, nearing an astounding 700,000 cases! And additional problemshave arisen, including grotesque overuse of detention courts in obscure, inappropriate locations to discourage representation and inhibit individuals from fully exercising their legal rights; a lack of pro bono and low bono attorney resources; and new unprecedented levelsof open disdain and disrespect by Administration officials outside EOIR, at the DOJ, for the two groups that are keeping Due Process afloat in the Immigration Courts: private attorneys, particularly those of you who are pro bono and low bono attorneys representing vulnerable asylum applicants and the Immigration Judgesthemselves, who are demeaned by arrogant, ignorant officials in the DOJ who couldn’t do an Immigration Judge’s job if their lives depended on it.

But, wait, and I can’t make this stuff up, folks, it gets even worse! According to recent news reports, the DOJ is actually looking for ways to artificially “jack up” the backlog to over 1,000,000 cases – you heard me, one million cases– almost overnight. They can do this by taking cases that were properly “administratively closed” and removed from the Courts’ already overwhelmed “active dockets” and adding them to the backlog.

Administratively closed cases involve individuals who probably never should have been in proceedings in the first place – DACA recipients, TPS recipients, those waiting in line for U visa numbers, potential legal immigrants with applications pending at USCIS, and long-time law-abiding residents who work, pay taxes, are integrated into our communities, have family equities in the United States, and were therefore quite properly found to be low to non-existent “enforcement priorities” by the last Administration.

Some of you in the audience might be in one of these groups. They are your neighbors, friends, fellow-students, co-workers, fellow worshippers, employees, workmen, child care workers, and home care professionals., and other essential members of our local communities.

And you can bet, that rather than taking responsibility for this unnecessary cruelty, waste, fraud, and abuse of our court system, the DOJ will attempt to falsely shift blame to Immigration Judges and private attorneys like those of you in the audience who are engaged in the thankless job of defending migrants in the toxic atmosphere intentionally created by this Administration and its antics.

Expose this scam! Don’t let the DOJ get away with this type of dishonest and outrageous conduct aimed at destroying our Immigration Court system while disingenuously directing the blame elsewhere.

Basically, respondents’ attorneys and Immigration Judges have been reduced to the role of “legalgerbilson an ever faster moving treadmill” governed by the unrestrained whims and indefensible, inhumane “terror creating” so-called “strategies” of the DHS enforcement authorities. And, instead of supportingour Immigration Judges in their exercise of judicial independence and unbiased decision-making and nurturing and enhancing the role of the private attorneys, the DOJ, inexcusably, during this Administration has undercut them in every possible way.

For the last 16 years politicians of both parties have largely stood by and watched the unfolding Due Process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration, at levels over which Director McHenry has no realistic control, will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

Our Constitution and our protection laws, which adhere to international treaties that we have signed, are not“loopholes.” Treating migrants fairly, humanely, and in accordance with the rule of law does notshow “weakness.” It shows our strengthas a nation.

There is a bogus narrative being spread by this Administration that refugees who are fleeing for their lives from dangerous situations in the Northern Triangle, that we had a hand in creating, are mere “economic migrants” not deserving of our protection. Untrue!

Migrants 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 in the generous spirit of the Supreme Court’s decision in Cardoza-Fonsecaand the BIA’s oft cited but seldom followed precedent in Matter of Mogharrabi; and a fair decision, preferably in writing, without being placed under duress by unnecessary, wasteful, inhumane detention and separation of families. This Court System should not be run by a Cabinet Member who has already announced his predetermination of the preferred outcomes and his total disdain for migrants and their lawful representatives.

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.

This Administration and particularly this DOJ depend on individuals notbeing competently represented and therefore not being able to assert their rights to either legal status or fair treatment. But, there are still real,truly independent Article III Courts out there that can intervene and put an end to this “deportation railroad” and its trampling on our Constitution, our laws, our values, and our dignity as human beings. For, friends, if we are unwilling to stand up against tyranny and protect the legal and Constitutional rights of the most vulnerable among us, like asylum seekers, then our ownrights and liberties as Americans mean nothing!

I urge each of youin this audience to join the “New Due Process Army” and stand upfor “truth, justice, and the American way” in our failing, misused, and politically abused United States Immigration Courts and to continue the fight, for years or decades if necessary, until this systemfinally is forced to deliveron its noble but unfulfilled promise of “being the world’s best tribunals, guaranteeing fairness and due process for all.” Harm to one is harm to all! Due process forever!

Thank you, Madam Moderator, I yield back my time.

(04-04-18)

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ADMISSION: Notwithstanding the last sentence, I went “overtime,” so there actually was no time to “yield back.”

PWS

05-04-18

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

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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

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

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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

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

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…
**************************************************

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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

VIEWS YOU CAN USE: SOPHIA GENOVESE SETS FORTH A BLUEPRINT FOR LEGAL RESISTANCE TO WHITE NATIONALIST XENOPHOBIA & SESSIONS’S ASSAULT ON HUMAN RIGHTS & THE RULE OF LAW FOR ASYLUM SEEKERS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/sessions-likely-to-end-asylum-eligibility-for-victims-of-domestic-violence-how-courts-can-resist.aspx?Redirected=true

Sophia writes at LexisNexis Immigration Communities:

“Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, 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.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

. . . .

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “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.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution. The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

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

Go on over to LexisNexis at the above link for Sophia’s much longer full article.

More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.

Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!

PWS

03-21-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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

A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

BACK ON THE KILLING FLOOR: BATTERED WOMEN STRUGGLED FOR 15 YEARS TO GET LIFE-SAVING LEGAL PROTECTION UNDER ASYLUM LAWS – – Now, Jeff Sessions Appears Poised To Sentence Them To Death Or A Lifetime Of Unremitting Abuse With A Mere Stroke Of His Poison Pen!

FINALLY, AFTER FUTILE REQUESTS TO THE BIA AND THE DOJ, THE PUBLIC HAS BEEN ABLE TO GET A COPY OF THE RECENTLY CERTIFIED MATTER OF A-B-, FROM THE ATTORNEY (WHO WASN’T TOLD OF THE ACTION UNTIL HE RECEIVED A COPY OF THE DECISION IN THE MAIL ON FRIDAY)

Here it is:

A-B- BIA Decision (12-08-2016) (redacted) (1)

It’s bad news for Due Process, justice in American, and particularly vulnerable asylum seekers who are battered women. Sessions appears to be taking direct aim at the landmark BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) which, following a 15 year legal battle, recognized that battered women could be a “particular social group” and thereby qualify for asylum and withholding of opinion.

Make no mistake, the BIA decision in Matter of A-B- is correct in every respect — a virtual textbook on how U.S. Immigration Judges should be handling and granting these well-documented claims. It’s also a classic example of poor quality work and feeble, biased anti-asylum, anti-female reasoning by an Immigration Judge that plagues too much of our asylum system.

The Immigration Judge’s decision denying asylum which was reversed by the BIA in Matter of A-B- contained numerous egregious errors, including:

An incorrect adverse credibility ruling which failed to consider and properly weigh “the totality of the circumstances, and all relevant factors,” as required by the REAL ID Act;
Failure to recognize a “particular social group” (“PSG”) substantially similar to that approved by the BIA in Matter of A-R-C-G-;
A “clearly erroneous” finding that the abused respondent was free to leave her ex-husband;
A “clearly erroneous” finding that the valid PSG was not “at least once central reason” for the persecution;
An erroneous finding, bordering on the absurd, that the Government of El Salvador was not “unable or unwilling” to protect the respondent.

Overall, the Immigration Judge’s handling of this case has all the earmarks of a jurist who is biased against asylum applicants and has predetermined to deny most claims giving a litany of specious, basically “pre-judged” reasons.

The Attorney General compounds the problem by apparently questioning the long-established principle that persecution takes place when “non-state actors” are not reasonably controlled by their national government. See, e.g., Matter of O-Z-&I-Z-, 22 I&N Dec. 23, 26 (BIA 1998).

Rather than reinforcing the BIA’s long-overdue “reining in” of a wayward Immigration Judge, the Attorney General appears to be aiming to upend well-settled asylum law and empower those Immigration Judges who already treat asylum applicants unfairly. That’s likely to result in a monumental battle in the Article III Courts — specifically the U.S. Courts of Appeals. Hopefully, those courts eventually will recognize that the U.S. Immigration Courts are being manipulated to reflect the anti-asylum, xenophobic biases and prejudices of Jeff Sessions.

That will require them to stand up to Sessions’s bullying and insist that asylum seekers rights to fair hearings before impartial decision makers and to receive legal protection under U.S. and international standards be recognized.

Advocates also question the procedures by which this case was handled by the Immigraton Judge following the BIA remand. The BIA order instructed the Judge to schedule the case for a routine update of the fingerprints and background checks and to issue a final order; in my experience, that’s usually a “30 second process” that can be completed on a Master Calendar or by joint written motion “in chambers.”

However, according to sources, this Immigration Judge allegedly “held up” AB’s case for eight months for no particular reason, and then “recertified” it to the BIA raising a facially bogus legal issue concerning a later-issued, unrelated Fourth Circuit case. Mysteriously, the case then was “certified” by Sessions taking it out of the BIA’s jurisdiction.

This scenario raises speculation that this Immigration Judge — perhaps recognizing from the Attorney General’s public statements that Sessions was also biased against asylum seekers — may have manipulated the process to do an “end run” around the BIA to the Attorney General. All pretty unseemly stuff when “lives are on the line.” Yet more “anecdotal evidence” of a system out of control and biased against Due Process and fairness for asylum seekers and other migrants.

Stay tuned. The battle is just “revving up,” and the New Due Process Army is ready to defend our justice system against each and every debilitating attack on the rule of law by our biased and lawless Attorney General.

PWS

03-13-18

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

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Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!

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Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

DUE PROCESS FOREVER!

Related posts:

FINALLY, AFTER FUTILE REQUESTS TO THE BIA AND THE DOJ, THE PUBLIC HAS BEEN ABLE TO GET A COPY OF THE RECENTLY CERTIFIED MATTER OF A-B-, FROM THE ATTORNEY (WHO WASN’T TOLD OF THE ACTION UNTIL HE RECEIVED A COPY OF THE DECISION IN THE MAIL ON FRIDAY)

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