ANOTHER DUE PROCESS ASYLUM VICTORY FOR THE GW IMMIGRATION CLINIC AT THE ARLINGTON IMMIGRATION COURT!

Professor Benitez reports:

“Friends,

Please join me in congratulating Immigration Clinic student-attorney Solangel González, who this afternoon won a grant of asylum for her clients, N-R and her two minor children, from El Salvador. The ICE trial attorney waived appeal so the decision is final. The immigration judge (IJ), Quynh Vu Bain, commenced today’s proceeding in the above manner.

N-R was threatened by the MS gang in her country because of her familial relationship with her uncle, who was murdered by the gang. After her uncle’s body was discovered, N-R called the police. While discussing the murder with a police officer a gang member walked by and saw the discussion. During the discussion, however, the police officer told N-R that it was best if she dropped the matter because, if they found out she filed a complaint, the gang could kill her kids. N-R later was told by a gang associate that she and her kids would be killed if she pursued the complaint. Out of caution, N-R moved with her children to another part of El Salvador, but the gang continued to look for her. Finally, N-R and her children fled to the USA. N-R testified that the gang members continue to look for her.

Congratulations also to Alyssa Currier, Karoline Núñez, Chen Liang, and Jonathan Bialosky, who previously worked on this case.

NOTE: While waiting in the lobby for her case to be called, Solangel escorted a respondent, who didn’t know where to go and who didn’t know who her lawyer was, to her assigned court room, thus avoiding a potential in absentia removal order.

**************************************************
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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Congrats to all involved! It also illustrates one of the points that I repeatedly make. With good representation, adequate time to prepare, a good judge who knows asylum law and takes individuals’ rights seriously, and a conscientious Assistant Chief Counsel representing the DHS, many of the Central American asylum claims are very “winnable” under the law. That’s why detaining individuals in poor conditions in locations where competent pro bono counsel is not readily available and cases are being “raced through” to minimize detention expenses and maximize removal statistics is so unfair and such an obvious violation of due process.

Also, this is the Judge Quynh Vu Bain that I remember as a former colleague at the Arlington Immigration Court: fair, scholarly, hard-working, kind, and Due Process oriented. My Georgetown Law student observers remarked on how welcoming she was and how she went out of-her way to make sure that everyone in the courtroom understood what was happening and why.

Despite Sessions’s disdain for individual rights of migrants (particularly vulnerable asylum seekers) and Due Process, and his fanatic emphasis on using the U.S. Immigration Courts as mere tools of DHS enforcement, there are many U.S. immigration Judges out there working conscientiously every day to provide fairness and Due Process to vulnerable migrants while laboring under some of the highest stress levels and worst working conditions faced by any judges in America!

America needs an independent Article I United States Immigration Court dedicated to guaranteeing “fairness and due process for all” now!

DUE PROCESS FOREVER!

PWS

01-19-18

MORE DEADLY MISTAKES: 6TH CIR. FINDS BIA’S ERROR-RIDDLED DECISION WRONGLY SENT WOMAN BACK TO FACE CARTEL THREATS IN MEXICO – TRUJILLO DIAZ V. SESSIONS!

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Trujillo Diaz v. Sessions, 6th Cir., 01-17-18, published

PANEL: MERRITT, MOORE, and BUSH, Circuit Judges.

OPINION BY: Judge Bush.

SUMMARY (FROM OPINION):

“In this immigration case, Maribel Trujillo Diaz petitions for review of an order denying her motion to reopen removal proceedings. The United States Board of Immigration Appeals (“BIA”) ruled that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum or withholding of removal under the Immigration and Nationality Act (“INA” or “Act”) because she failed to show that she would be singled out individually for persecution based on her family membership. The BIA reiterated this finding in ruling that Trujillo Diaz failed to establish a prima facie case of eligibility for protection under the Convention Against Torture. Because the BIA failed to credit the facts stated in Trujillo Diaz’s declarations, and this error undermined its conclusion as to the sufficiency of Trujillo Diaz’s prima facie evidence, we hold that the BIA abused its discretion. We further hold that the BIA abused its discretion in summarily rejecting Trujillo Diaz’s argument that she could not safely relocate internally in Mexico for purposes of showing a prima facie case of eligibility for relief under the Convention Against Torture. Thus, we vacate the order of the BIA and remand for further proceedings consistent with this opinion.”

KEY QUOTATION:

“The BIA’s abuse of discretion in failing to credit Trujillo Diaz’s father’s affidavit undermined its conclusion that Trujillo Diaz had not made a prima facie showing of eligibility for asylum and withholding of removal under the INA. This conclusion also affected the BIA’s analysis of whether Trujillo Diaz made a prima facie showing of eligibility for protection under the Convention Against Torture. Further, the BIA abused its discretion in summarily rejecting Trujillo Diaz’s argument that she could not safely relocate internally in Mexico for purposes of showing prima facie eligibility under the Convention Against Torture. Accordingly, we GRANT the petition and REMAND to the BIA for reconsideration consistent with this opinion.”

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Following the denial of her original claim for asylum, Trujillo Diaz was allowed by the Obama Administration as an exercise of prosecutorial discretion to remain in the United States with work authorization and faithfully checked in with the DHS. However, the Trump Administration arbitrarily targeted her for removal. Although many in the community, including the Catholic Church, protested, the Administration nevertheless removed Trujillo Diaz to Mexico while this motion was pending.

Our tax dollars are being squandered for this type of useless, immoral, and in this case ultimately wrongful removal. At no time has Jeff “Gonzo Apocalypto” Sessions shown any concern whatsoever for the significant number of mistaken asylum denials and improper deportations taking place as a result of poor quality decision-making taking place in the over-stressed and overwhelmed U.S. Immigration Courts operating under his administration. Nor has he shown any appreciation for the obvious fact that rather than more speed in deporting individuals, this court system is badly in need of better representation for asylum seekers, more careful decision-making that complies with the law, and measures to insure Due Process as required by the U.S. Constitution.

Sessions’s anti-due-process administration of the U.S. Immigration Courts is a national disgrace! We need an independent United States Immigration Court dedicated to insuring Due Process and protecting vulnerable individuals from wrongful removals like this! Now!

PWS

01-18-18

WASHINGTON POST: “DEATH PENALTY IN TRAFFIC COURT” — BIG STAKES, LITTLE COURTS, FLAWED PROCEDURES, IMPROPER POLITICAL INFLUENCE, SOME JUDGES WHO FAIL TO PROTECT INDIVIDUAL RIGHTS LEAD TO LIFE-THREATENING ERRORS ON A DAILY BASIS IN OVERWHELMED U.S. IMMIGRATION COURTS. — What If YOU or YOUR Loved Were On Trial In This Godforsaken Corner Of Our Justice System Controlled By Jeff “Gonzo Aocalypto” Sessions!

https://www.washingtonpost.com/opinions/a-mexican-journalists-life-hangs-in-the-balance/2017/12/11/9783ab1a-deac-11e7-8679-a9728984779c_story.html

The WashPost Editorial Board writes:

“As he awaits his fate in a remote Texas jail, Mr. Gutierrez, 54, remains convinced of the peril he faces if deported to his native country. “My life depends on this [appeal],” he said by telephone in a news conference organized Monday by the National Press Club. “I’m terrified to set foot in Mexico.”

The judge who denied asylum in the case, Robert S. Hough, pointed to an absence of documentary and testimonial corroboration of Mr. Gutierrez’s claim. The woman who relayed word of the alleged death threat did not come forward; neither did Mr. Gutierrez’s former boss at the newspaper for which he worked in Chihuahua. Much of Mr. Gutierrez’s case comes down to his word.

Nonetheless, the judge’s cut-and-dried application of the law fails to take into account conditions in Mexico generally and the peril faced there by journalists in particular. It’s not surprising that Mr. Gutierrez cannot recover copies of his articles, written more than a decade ago for a regional newspaper. Nor is it unusual that witnesses are reluctant to come forward, given the fear with which many Mexicans regard the security forces.

As a U.N. report published this month concluded, citing the deaths, disappearances and attacks on dozens of journalists tallied by Mexico’s Human Rights Commission, “The data . . . presents a picture for the situation of journalists in Mexico that cannot be described as other than catastrophic.” Against that background, it seems cavalier to dismiss the threat Mr. Gutierrez faces should he be deported to Mexico. He should be granted asylum.”

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Read the complete Editorial at the link.

Unfortunately, a “cut and dried application of the law” without proper regard to the facts or reality is a disturbingly accurate snapshot of what all too often happens daily in our Immigration Courts, a “wholly owned subsidiary” of the US Department of Justice and part of the “Trump Conglomerate” (formerly known as the US Government).

Our failing US Immigration Court system and its aggravation by AG “Gonzo Apocalypto’s” oft-expressed hostility to immigrants, asylum, the rule of law (except his 1950s “Jim Crow” views on the law and how it should be a tool for injustice and advancing White Nationalism), lawyers, Latinos, Mexicans, and the press has become an almost daily topic for major editorial boards. At least someone (other than me) is watching and documenting as this mockery of American justice unfolds before us.

In particular, too many U.S. Immigration Judges are tone-deaf to Mexican asylum claims, not wanting to be accused of “opening the floodgates” ( a concept that is nowhere to be found in the actual law) and knowing that “Gonzo” wants lots of “quick removals” rather than asylum grants. Additionally, the only administrative check on the Immigration Judges’ authority is a weak Appeals Board that never “calls out” overly restrictive Immigration Judges by name and seldom publishes precedents granting asylum. Truly, a prescription for a “Due Process Disaster!”

Judge Hough seems to have forgotten that under the law:

”Corroborating evidence” can only be required if it is “reasonably available;”
Testimony may be corroborated by country condition information describing the same abuses that the applicant claims;
The standard for granting asylum is a generous “well-founded fear” or “reasonable likelihood” of future harm which can be “significantly less than probable — as little as a 10% chance can suffice;
Asylum applicants are supposed to be given the “benefit of the doubt” in recognition of the evidentiary challenges of providing proof of persecution and the difficulties of relating traumatic events in the past.

It remain to be seen whether the Board of Immigration Appeals, EOIR’s “Appellate Court,” will correct Judge Hough’s life-threatening errors and, further, issue a strong precedent on asylum for foreign journalists (traditionally one of the most vulnerable and persecuted groups) to prevent further miscarriages of Justice such as this. Such a precedent would also discourage the DHS from continuing to abuse our system by pushing for removal (and needless detention) in cases such as this where a grant of asylum at the DHS Asylum Office or at the hearing following the testimony would be the correct result.

Or, will the next major editorial describe and decry Mr. Gutierrez’s death in Mexico!

In a well-functioning justice system, this case should have been a “Short-docket, No-brainer Grant.” But, Gonzo Apocalypto seeks to use the US Immigration Courts as an extension of DHS enforcement rather than, as they were intended, as Courts guaranteeing fairness, Due Process, and equal justice for all! We need change. Lots of it!

[NOTE: For those interested, Judge Hough apparently has not decided enough asylum cases on the merits in El Paso to be listed on the statistical profile of asylum outcomes maintained by TRAC Immigration.]

PWS

12-12-17

HON. JEFFREY CHASE DISCUSSES ASYLUM BASED ON FEAR OF HONOR KILLINGS!

https://www.jeffreyschase.com/blog/2017/12/2/honor-killings-and-particular-social-group

Dec 2 Honor Killings and Particular Social Group

The threat of honor killing may form the basis of an asylum claim. While men may be targeted as well,1 honor killings are a gender-based form of persecution, as the underlying basis is the view in certain societies that a woman’s failure to strictly adhere to a rigid moral code imposed upon her brings such dishonor on her family in the eyes of the community that nothing short of her murder (at the hands of her own family) can restore the family’s “honor.” The BIA has issued no precedent decisions relating to these types of claims; there are not many published circuit court decisions. In a recent published decision, Kamar v. Sessions, the U.S. Court of Appeals for the Sixth Circuit reversed the BIA’s incorrect determination that a woman from Jordan who credibly fears an honor killing was not genuinely at risk, and did not show that the government of Jordan was unwilling or unable to protect her. However, I would like to focus in this article on the particular social group aspects of such claims.

As I have stated in other posts, the BIA established a requirement in its 1985 precedent decision Matter of Acosta that members of a particular social group must share an immutable characteristic. In a series of later decisions beginning with it’s 2006 precedent Matter of C-A-, the BIA additionally required cognizable social groups to satisfy its particularity and social distinction requirements. The former requires that there be a clear benchmark of who is and is not included in the group. The latter requires that the society in question (i.e. not the persecutors alone) view the members as forming a distinct group. It is not easy for a group to meet all three of these requirements.

However, I believe that women (and sometimes men) targeted for honor killings must be found to meet all three of these requirements, as they are inextricably built into the social code which gives rise to such horrific actions. First, being targeted for an honor killing is clearly an immutable characteristic. The entire reason the society in question requires an act as drastic as murder is that nothing short of eliminating the individual will undo the perceived shame on the family. There is no lesser form of rehabilitation or restitution available. Nor will the passage of time or the target’s departure from the society suffice. USCIS itself states in its own training materials for asylum officers on gender-based persecution that “the family may go to great lengths to pursue women (and men) accused of violating the family’s honor. Families employ bounty hunters, private detectives and social networks to pursue victims and searches may persist over years. In cultures with extended family networks over a large geographic area, relocation may offer no real protection.”2 This is the definition of an immutable characteristic.

Additionally, the group satisfies the particularity requirement. The code giving rise to honor killings (a term which the U.S. Court of Appeals for the Seventh Circuit has called “an oxymoron if we’ve ever heard one”)3 specifies who must be targeted. In societies in which such killings take place, if a family that adheres to a rigid moral code believes that a female member of the family has behaved in a way that tarnished its reputation to the point that an honor killing is required, the family cannot decide to kill, e.g., the third person that walks down the street, or a more distant relative, or the gardener to achieve the goal of restoring honor. The code governing such killings is specific as to who must be targeted.

Furthermore, social distinction is a given in such cases, as it is the perception of the society in question itself that is entirely responsible for both the family’s perceived loss of honor and for the “need” to carry out the murder. It is the society’s moral code that has been violated by the group member’s behavior; it is the society that has distinguished the violator in a manner that brings shame on her family; and it is the society’s perception that the honor killing is intended to appease. Therefore, while the asylum officer, immigration judge, or BIA may deny asylum for another reason, if credible, an asylum applicant who fears an honor killing should not be denied based on a failure to meet her burden of establishing membership in a cognizable particular social group.

In order to avoid the Board’s prohibition against the group being defined in a circular manner, it is best not to include the term “honor killing” in the definition of the proposed group itself. The membership in the group is the reason the person fears persecution. The definition should therefore generally not include the actual harm feared, because a person is not targeted for an honor killing because they are targeted for an honor killing- this is what the Board terms a circular argument. However, a person may be targeted for persecution because they are a member of the group consisting of, for example, “women from country X whose behavior is perceived to have brought dishonor on their family by flouting repressive moral norms.” The honor killing is the type of persecution that the applicant fears as a result of their membership in the group.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

Notes:

1. On the topic of males targeted for honor killings, see Caitlin Steinke, Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for Gender Equality, 17 CUNY L.Rev. 233,(2013).

2. See USCIS, RAIO Directorate, Combined Training Course, Gender Related Claims Training Module, p. 24 (Rev. 9/26/2011)https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/RAIO/Gender%20Related%20Claims%20LP%20%28RAIO%29.pdf.

3. Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011).

JEFF CHASE

US IMMIGRATION COURTS MAKE DEADLY MISTAKES: 6th CIRCUIT STOPS BIA, IJ, DHS FROM APPLYING WRONG STANDARDS TO SEND JORDANIAN WOMAN BACK TO TORTURE AND HONOR KILLING! — KAMAR V. SESSIONS, 6th CIR., PUBLISHED — While Sessions Babbles On With False Anti-Asylum Narrative & Bogus Need To Deport Law-Abiding Long-Time US Residents, He Administers a “Court System” That Denies Constitutional Due Process & Ignores Correct Legal Standards In Life Or Death Cases!

17a0260p-06

Kamar v. Sessions, 11-17-17, published

PANEL: MERRITT, MOORE, ROGERS, CIRCUIT JUDGES

OPINION: JUDGE MERRITT

KEY QUOTES:

“We now address, under the substantial evidence standard, the question of whether Kamar will be persecuted by threat of death if she returns to Jordan, which is relevant to both withholding under the Act and relief under the Convention. Kamar testified at the merits hearing that her cousins, specifically Alias, want to restore their family’s honor by killing her, and her sister confirmed this. She knows this because of letters she received and communications with family and friends. The Board expressly found Kamar to be credible. On remand, the IJ concluded the letter from Alias was not credible and did not facially threaten Kamar. The IJ reasoned that even if it was credible, there was no indication that Alias knew that Kamar had gotten married and might not want to kill her anymore. The IJ found that the intent to kill Kamar was expressed only through an “ambiguous” comment in the letter from Kamar’s mother. The Board agreed that Kamar did not establish that her fear of persecution was objectively reasonable. The probability of harm occurring in these cases is an inference based on facts in the record. Considering the evidence, it is hard to reconcile these findings with the Board’s conclusion that even if Kamar had a subjective fear of persecution, this fear was not objectively reasonable. There is nothing to cast doubt on Kamar’s testimony. Even if the letter from Alias is not considered, the letter from Kamar’s mother states that Alias wishes to kill Kamar even if it is his last act on earth, and credible testimony confirms this. Nothing indicates that Alias does not still intend to carry out the honor killing. Both Kamar and her sister testified that it did not matter that Kamar married her second husband because Alias knows that she had sexual relations outside of marriage and believes that she committed adultery. The record overwhelming supports the finding that she will be persecuted if she returns.

Finally, we consider whether the Jordanian government would be “unwilling or unable” to protect Kamar from harm. In the country reports in the record, it has been established that governors in Jordan routinely abuse the law and use imprisonment to protect potential victims of honor crimes. These victims are not released from imprisonment unless the local governor consents, the victim’s family guarantees the victim’s safety, and the victim consents. One non-governmental organization has provided a temporary, unofficial shelter as an alternative.

On the other hand, successful perpetrators of honor killings typically get their sentences greatly reduced. Additionally, if the victim’s family, who is usually the family of the alleged perpetrator as well, does not bring the charges, the government dismisses the case. See also Sarhan, 658 F.3d at 657 (“After reviewing the evidence of the Jordanian government’s treatment of honor crimes, we conclude that . . . the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings.”).

The Board’s decision outlined the Jordanian government’s efforts to combat honor crimes, including placing potential victims in “protective custody.” As the Ninth Circuit concluded in an analogous case, “This observation omits the fact that such protective custody is involuntary, and often involves extended incarceration in jail.” Suradi v. Sessions, No. 14-71463, 2017 WL 2992234, at *2 (9th Cir. July 14, 2017). While victim protection is necessary, incarceration is an insufficient solution. This practice is akin to persecuting the victim as she “must choose between death and an indefinite prison term.” Sarhan, 658 F.3d at 659. Further, nothing in the record suggests that the country conditions in Jordan have changed such that the government will be able to adequately protect Kamar from being killed. This showing satisfies both of the standards for finding governmental action for purposes of withholding of removal under the Act and also those for protection under the Convention, as it amounts to “pain or suffering” that is inflicted with the acquiescence of a public official or a person acting in an official capacity.

We do not address whether Kamar can safely relocate to escape persecution, which is also relevant to withholding of removal and protection under the Convention. The Board did not mention relocation, and the parties’ briefs do not address the issue. Like the particular social group inquiry, the issue of safe relocation must be addressed in the first instance by the Board. Gonzales v. Thomas, supra.

Substantial evidence does not support the Board’s refusal to find that Kamar will probably be persecuted if she is returned to Jordan, due to her membership in the particular social group we discussed, or that the Jordanian government can or will do nothing to help her. The Board’s decision with regard to those issues is reversed.

. . . .

The Seventh Circuit has found that the Jordanian government’s “solution” to protect honor killing victims is actually a form of punishing the victims of these crimes amounting to mental “pain or suffering,” which is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1); see Sarhan, 658 F.3d at 659. Taking into account our reasoning and findings above on the factors relating to both withholding of removal under the Act and protection under the Convention, we agree that “[d]espite the contrary conclusion of the Immigration Judge and the Board, the record here also compels the conclusion that the government of Jordan acquiesces to honor killings.” Suradi, 2017 WL 2992234, at *1.

Given the likelihood that Kamar would be subject to involuntary imprisonment at the hands of the Jordanian authorities, resulting in mental pain and suffering, the Board erred in concluding that Kamar failed to establish that it was more likely than not that she would be tortured upon removal to Jordan. We grant the petition with respect to the Board’s reasoning under the Convention.“

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This should have been an easy withholding grant by the Immigration Judge. Indeed, the 6th Circuit characterized the evidence of persecution as “overwhelming.”

Instead the BIA and the Immigration Judge spent literally years passing the case back and forth and still got it wrong! No wonder the system is backlogged when judges at both the trial and appellate levels get the law requiring protection wrong time after time! How would an unrepresented individual have any chance of vindicating her rights in a system this complicated and screwed up! Skewing the system as this Administration has done to make it more difficult for individuals to get effective representation is a direct attack on due process.

Instead of making a conscientious effort to fix this system to provide due process, Sessions’s clear xenophobia and his anti-immigrant, anti-refugee rants encourage Immigration Judges and BIA Appellate Judges to treat asylum applicants unfairly and misapply the law to deny protection.

There will be no true due process and justice for migrants until the politicized DOJ and this highly biased Attorney General are removed from control of our US Immigration Court system! How would YOU like to be on trial for your life in a court system controlled by Jeff Sessions?

PWS

11-18-17

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

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Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia. Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

“TERRIFIC TRIO” INSPIRES STUDENTS, FIGHTS FOR IMMIGRANT JUSTICE AT UVA LAW IMMIGRATION CLINIC — PLUS EXTRA BONUS: Go Back To School This Fall — Take My “One-Lecture” Class “Basic Asylum Law for Litigators” Right Here!

HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

FACULTY

dsharuk@law.virginia.edu

Deena N. Sharuk

Lecturer
Biography
Courses

Deena N. Sharuk teaches Immigration Law at the Law School.

Sharuk is currently practicing as an immigration attorney at the Legal Aid Justice Center in Charlottesville, Virginia, where she manages the Virginia Special Immigrant Juvenile Project. She received her B.A. in international relations with a specialization in human rights from Wellesley College. Sharuk received her law degree from Northeastern University School of Law.

After graduation, she worked as a fellow at the American Civil Liberties Union of Massachusetts and later practiced immigration law in Massachusetts and Virginia. Sharuk was recently appointed as a task force core team member to foster a welcoming environment for immigrants and minorities in Charlottesville and Albemarle county. She often presents to the community about changes in immigration law.

EDUCATION

JD.   Northeastern University School of Law    2012     
BA.   Wellesley College    2007

FACULTY

tanishka@justice4all.org

Cell Phone

(434) 529-1811

Tanishka V. Cruz

Lecturer
Biography
Courses

Tanishka V. Cruz is an attorney in solo practice at Cruz Law, a Charlottesville-based immigration and family law firm. She is also an attorney with the Legal Aid Justice Center, where for the past two years she has focused on the management of the Virginia Special Immigrant Juvenile Project, an award-winning collaboration between LAJC and pro bono attorneys across the state. The project has saved more than 150 refugee children from likely deportation.

Cruz earned her B.A. from Temple University and her J.D. from the Drexel University Thomas R. Kline School of Law.

She currently supervises students in the Immigration Law Clinic, which LAJC runs in conjunction with the Law School

EDUCATION

JD.   Drexel University Thomas R. Kline School of Law    2012     
BA.   Temple University    2004

FACULTY

rmcfarland@justice4all.org

Rachel C. McFarland

Lecturer
Biography
Courses

Rachel C. McFarland is an attorney at Legal Aid Justice Center in Charlottesville. She focuses on cases in public and subsidized housing, unpaid wages for migrant workers and immigration.

McFarland earned her B.A. from the University of Richmond in 2009, where she majored in Latin American and Iberian studies, and rhetoric and communication studies. She received her J.D. from Georgetown University Law Center in 2015.

While at Georgetown, McFarland participated in the asylum clinic and received a certificate in refugees and humanitarian emergencies.

EDUCATION

JD.   Georgetown University Law Center    2015     
BA.   University of Richmond    2009

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Wow, what a totally impressive and multi-talented team! All three of these amazing lawyers also work at the Legal Aid and Justice Center in Charlottesville, VA. They tirelessly pursue justice for our most vulnerable! They teach their clinical students “real life” client interview, case preparation, organization, time management, negotiation, and litigation skills while giving them a solid background in probably the most important and dynamic area in current American Law: U.S. Immigration Law.

They do it all with energy, enthusiasm, good humor, and inspiring teamwork that will help their students be successful in all areas of life and law while contributing to the American Justice system.

I am of course particularly proud of Rachel McFarland who was one of my wonderful Refugee Law and Policy students at Georgetown Law and has gone on to “do great things” and help others as a “charter member” of the “New Due Process Army.” Way to use that “RLP” training and experience, Rachel! I know that my good friend and colleague Professor Andy Schoenholtz who runs the Georgetown Law Certificate in Refugees and Humanitarian Emergencies program is also delighted at how Rachel has chosen to use her specialized training!

Thanks again, Rachel, for “making your professors proud” of your dedication and achievements. I hope that your students will do the same for you (and your terrific colleagues)!

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For those of you who want to replicate the class experience in Charlottesville last Wednesday, here is the complete text of my class presentation: “BASIC ASYLUM LAW FOR LITIGATORS!”

BASIC ASYLUM LAW FOR LITIGATORS-2SPACE

BASIC ASYLUM LAW FOR LITIGATORS

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

UVA LAW IMMIGRATON CLINIC

Charlottesville, VA

October 25, 2017

BASIC ASYLUM LAW FOR LITIGATORS

OUTLINE

I. INTRODUCTION

II. WHO IS A REFUGEE?

Refugee Definition

Standard of Proof

What Is Persecution?

Nexus

III. PARTICULAR SOCIAL GROUP

The Three Requirements

Success Stories

The Usual Losers

What Can Go Wrong?

A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

I. INTRODUCTION

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

I’m truly delighted to be reunited with my friend and former student from Refugee Law & Policy at Georgetown Law, the wonderful Rachel McFarland. I am absolutely thrilled that Rachel has chosen to use her amazing talents to help those most in need and to be a teacher and an inspirational role model for others in the New Due Process Army. In addition to being brilliant and dedicated, Rachel exudes that most important quality for success in law and life: she is just one heck of a nice person! The same, of course, is true for your amazing Clinical Professor Deena Sharuk and her colleague Tanishka Cruz Thank you Deena, Tanishka, and Rachel, for all you are doing! All of you in this room truly represent “Due Process In Action.”

As all of you realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” including, sadly and most recently our Attorney General, losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of migrants are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

I do want to offer one additional important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

Please feel free to ask questions as we go along, or save them until the end.

II. WHO IS A REFUGEE?

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A. Refugee Definition

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

Generally, outside the country of nationality (not usually an issue in border cases);
Unwilling or unable to return (failure of state protection);
Because of persecution (undefined) or a well founded fear of persecution;
On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution do not automatically qualify individuals for refugee status, although “persecution“ within the meaning of the INA and the Convention certainly can sometimes occur in these contexts. However, some of these circumstances that fail to result in refugee protection because of the “nexus” requirement might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B. Standard of Proof

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C. What Is Persecution?

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner, who recently retired from the Seventh Circuit Court of Appeals, in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7^th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first [discrimination] refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D. Nexus

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fourth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fourth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5^th Cir. 2015). The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears designed to make the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A,

and the BIA is unlikely to retreat from L-E-A-. On the other hand, the Fourth Circuit might not go along with the L-E-A- view, although Judge Wilkins appeared anxious to endorse L-E-A- in his separate concurring opinion in Valasquez v. Sessions, 866 F.3d 188 (4^th Cir. 2017).

To my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4^th Cir. 2017) (slamming BIA for misapplying concept of “mixed motive”). So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your client’s currentproblems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both UVA Clinic specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III. PARTICULAR SOCIAL GROUP

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A. The Three Requirements

The BIA has established three requirements for a PSG.

Immutability or fundamental to identity;
Particularity; and
Social distinction.

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than the UVA Clinic – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4^th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

There are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. As they say, “There’s a new sheriff in town and, unfortunately in my view, he looks a lot like the infamous “Sheriff Joe.”

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4^th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E. A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit.

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

My eleventh rule is to “Get Physical.” In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htmwas effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyonewho has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect morearrests, more detention (particularly in far-away, inconvenient locations like, for instance, Farmville, VA), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

(10-30-17)

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PWS

10-30-17

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

3

finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

4

documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

5

eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17

CHICAGO TRIBUNE: Asylum Experts Michelle Mendez & Swapna Reddy Challenge Gonzo’s Bogus Apocalyptic Smear Of U.S. Asylum Applicants!

http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-asylum-sessions-immigration-1024-20171023-story.html

Michelle and Swapna write:

“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?

These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.

Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.

Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.

Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.

And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.

Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”

But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.

The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.

Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.

. . . .

Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.

Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”

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Read the complete article at the link.

Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.

PWS

10-22-17

READ ABOUT EL SALVADOR, ONE OF THE PLACES WHERE “GONZO & HIS GANG” WOULD LIKE TO SEND REFUGEES WITHOUT GIVING THEM DUE PROCESS AND A FAIR CHANCE TO PLEAD FOR THEIR LIVES!

http://www.washingtonpost.com/sf/world/2016/10/28/el-salvadors-conflict-with-gangs-is-beginning-to-look-like-a-war/?tid=a_classic-iphone&utm_term=.66bd90942a8d

Fred Ramos reports for the Washington Post:

‘We see the police as terrorists’

In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.

As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.

“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.

The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.

If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.

“It’s a miracle that I am alive to tell this story,” the supervisor said.

Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.

“They ran from the police because they were terrified,” she said. “They panicked.”

A truce ends

President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.

“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.

The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.

On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.

Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.

The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.

The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”

The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.

Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.

The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.

“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.

The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.

“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”

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This is only a small part of a lengthy article which is available at the above link.

This, not Gonzo’s bogus “Blame DACA Narrative” or his fabricated fraud narrative, is why women and children are fleeing from the Northern Triangle and are likely to continue to do so regardless of how much “deterrence” Gonzo & Gang throw at them. And, these folks have potentially legitimate claims that should be fully and impartially heard in Immigration Court with the assistance of counsel and full appeal rights. Even those who do not fit the “technical requirements” for legal protection under U.S. law might well have strong humanitarian claims for temporary refuge under Temporary Protected Status (“TPS”) (which the last tow Administration ministrations have stubbornly refused to acknowledge) or prosecutorial discretion. We are hardly a “disinterested party” in the rampant violence that is now gripping Central America.

PWS

10-20-17

MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!

https://www.reuters.com/investigates/special-report/usa-immigration-asylum/

Mica Rosenberg, Read Levinson, & Ryan McNeill report:

“They fled danger at home to make a high-stakes bet on U.S. immigration courts

Threatened by gangs in Honduras, two women sought asylum in the United States. Their stories illustrate what a Reuters analysis of thousands of court decisions found: The difference between residency and deportation depends largely on who hears the case, and where.

By MICA ROSENBERG, READE LEVINSON and RYAN McNEILL

Filed Oct. 17, 2017, 1 p.m. GMT

OAKLAND, California – The two Honduran women told nearly identical stories to the immigration courts: Fear for their lives and for the lives of their children drove them to seek asylum in the United States.

They were elected in 2013 to the board of the parent-teacher association at their children’s school in the Honduran capital, Tegucigalpa. They hoped that mothers working together could oust the violent gangs that plagued the campus.

Instead, they became targets. Weeks apart, in the spring of 2014, each of the women was confronted by armed gang members who vowed to kill them and their children if they didn’t meet the thugs’ demands.

Unaware of each other’s plight, both fled with their children, making the dangerous trek across Mexico. Both were taken into custody near Hidalgo, Texas, and ended up finding each other in the same U.S. Immigration and Customs Enforcement (ICE) detention center in Artesia, New Mexico. There, they applied for asylum.

That’s when their fates diverged.

Sandra Gutierrez joined her husband in California, where her case was heard by a San Francisco immigration court judge. At the end of her asylum hearing in September 2016, she received a one-page form, with an “X” in the box next to “granted.” She was free to settle into life with her family in the United States.

The other woman, Ana, joined her daughter’s father in the southeastern United States, and her case was assigned to an immigration court in Charlotte, North Carolina. The judge denied her petition and ordered her deported. She is now awaiting a court date after new lawyers got her case reopened.

Ana declined to be interviewed for this article. Through her lawyers, she asked that her full name not be used because of her uncertain status and her fear that Honduran gangs could find her.

The women’s lawyers framed their respective cases with some important differences. However, the women said their reasons for seeking asylum were the same: Gangs had targeted them because of their involvement in the parent-teacher association, and for that, they and their families had been threatened.

Taken together, the two cases – nearly indistinguishable in their outlines but with opposite outcomes – illustrate a troubling fact: An immigrant’s chance of being allowed to stay in the United States depends largely on who hears the case and where it is heard.

Judge Stuart Couch, who heard Ana’s case in Charlotte, orders immigrants deported 89 percent of the time, according to a Reuters analysis of more than 370,000 cases heard in all 58 U.S. immigration courts over the past 10 years. Judge Dalin Holyoak, who heard Gutierrez’s case in San Francisco, orders deportation in 43 percent of cases.

In Charlotte, immigrants are ordered deported in 84 percent of cases, more than twice the rate in San Francisco, where 36 percent of cases end in deportation.

Couch and Holyoak and their courts are not rare outliers, the analysis found. Variations among judges and courts are broad.

Judge Olivia Cassin in New York City allows immigrants to remain in the country in 93 percent of cases she hears. Judge Monique Harris in Houston allows immigrants to stay in just four percent of cases. In Atlanta, 89 percent of cases result in a deportation order. In New York City, 24 percent do.

The Reuters analysis used data from the Executive Office for Immigration Review (EOIR), the U.S. Justice Department unit that oversees immigration courts. The count of deportations included cases in which judges allowed immigrants to leave the country voluntarily.

The analysis excluded immigrants who were in detention when their cases were heard because such cases are handled differently. It also excluded cases in which the immigrant did not appear in court, which nearly always end in a deportation order, and cases terminated without a decision or closed at the request of a prosecutor.

About half the cases in the analysis were filed by asylum seekers like the two Honduran women. The rest were requests for cancellation of deportation orders or other adjustments to immigration status.

“GROSS DISPARITIES”

Of course, other factors influence outcomes in immigration court. For example, U.S. government policy is more lenient toward people from some countries, less so for others.

Also, immigration judges are bound by precedents established in the federal appeals court that covers their location. Immigration courts in California and the Pacific Northwest fall under the 9th U.S. Circuit Court of Appeals, and they rule in favor of immigrants far more often than courts in the 4th Circuit, which includes North and South Carolina, Maryland and Virginia, Reuters found.

Even so, the Reuters analysis determined that after controlling for such factors, who hears a case and where it is heard remain reliable predictors of how a case will be decided. An immigrant was still four times as likely to be granted asylum by Holyoak in San Francisco as by Couch in Charlotte.

The Reuters analysis also found that an immigration judge’s particular characteristics and situation can affect outcomes. Men are more likely than women to order deportation, as are judges who have worked as ICE prosecutors. The longer a judge has been serving, the more likely that judge is to grant asylum.

“These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco

The findings underscore what academics and government watchdogs have long complained about U.S. immigration courts: Differences among judges and courts can render the system unfair and even inhumane.

“It is clearly troubling when you have these kinds of gross disparities,” said Karen Musalo, director of the Center for Gender & Refugee Studies at the University of California Hastings School of the Law in San Francisco. “These are life or death matters. … Whether you win or whether you lose shouldn’t depend on the roll of the dice of which judge gets your case.”

EOIR spokeswoman Kathryn Mattingly said the agency does not comment on external analyses of its data.

Devin O’Malley, a Department of Justice spokesman, challenged the Reuters analysis, citing “numerous conflicting statements, miscalculations, and other data errors,” but declined to elaborate further.

Immigration judges, appointed by the U.S. attorney general, are not authorized to speak on the record about cases.

Dana Marks, president of the National Association of Immigration Judges, said each case is like “a 1,000 piece puzzle.” While two cases might look identical on the surface, she said, each judge has to weigh the nuances of immigration law to allow someone to stay in the country, which could lead to different outcomes.

The question of equality of treatment among judges has gained urgency as the number of cases in immigration court has ballooned to record highs. Under President Barack Obama, the courts began efforts to hire more immigration judges to reduce the system’s burgeoning backlog, which now stands at more than 620,000 cases, nearly 100,000 of them added since last December.

The administration of President Donald Trump is continuing the effort. Attorney General Jeff Sessions said in April that the Justice Department planned to hire more than 50 judges this year and 75 in 2018, which would put the total number of sitting judges above 400.

Of the 28 immigration judges Sessions has appointed so far, 16 are former ICE prosecutors. That experience, the Reuters analysis found, makes them 23 percent more likely to order deportation. (Neither Holyoak nor Couch worked as an ICE prosecutor, according to their EOIR biographies.)

In a wish list of immigration proposals sent to Congress on Oct. 8, the White House said that “lax legal standards” had led to the immigration court backlog and that “misguided judicial decisions have prevented the removal of numerous criminal aliens, while also rendering those aliens eligible to apply for asylum.” Among the proposals offered in exchange for a deal with Congress on the roughly 800,000 “dreamers” – children brought to the country illegally by their parents – the Trump administration said it wanted to hire even more immigration judges and 1,000 ICE attorneys, while “establishing performance metrics for Immigration Judges.”

Video: High-stakes game of chance in U.S. immigration courts

CRISIS AT THE BORDER

In 2014, an unprecedented 68,000 parents and children, most of them fleeing violence and lawlessness in El Salvador, Guatemala and Honduras, crossed into the United States from Mexico – a refugee crisis that has contributed to the bloated backlog of asylum petitions. Many of the migrants, including Gutierrez and Ana, convinced initial interviewers that they had a “credible fear” of returning home, the first step in filing an asylum claim.

Having come from a country with one of the highest murder rates in the world may have helped establish “credible fear.” But the two women were already at a disadvantage – precisely because they came from Honduras.

Country of origin is a big factor in determining who gets to stay in the United States because immigrants from some countries are afforded special protections. For example, courts ruled in favor of Chinese immigrants 75 percent of the time, the Reuters analysis found. A 1996 law expanded the definition of political refugees to include people who are forced to abort a child or undergo sterilization, allowing Chinese women to claim persecution under Beijing’s coercive birth-control policies.

Hondurans enjoy no special considerations. They were allowed to stay in the United States in just 16 percent of cases, the Reuters analysis found.

The mass exodus from Central America was under way when Gutierrez and Ana were elected to the board of the parent-teacher association at their children’s school in spring 2013.

Two rival gangs – the Barrio 18 and the Mara Salvatrucha, also known as MS-13 – were operating brazenly in the neighborhood. The year before, according to police records in Honduras, gang members killed a school security guard. Now, they were extorting teachers, selling drugs openly and assaulting or killing anyone who confronted them.

The new six-member association board set about trying to improve security at the school, which sits on a dirt road behind a high wall topped with razor wire.

“Before, no one wanted to say anything about the gangs,” Gutierrez said. “We were the brave ones. The previous president was a man, so we thought, ‘We are women, they won’t do anything to us.’ ”

The school’s principal, who asked that he and the school not be identified out of fear of retaliation, worked with the board. They had early success, he said, when they persuaded police to provide officers to guard the school. But the patrols left after a few weeks, probably intimidated by the gangs.

One evening in April 2014, Gutierrez was watching television at home with her two sons, ages 5 and 11, when she heard banging at the front door. Her older boy recognized the three armed and heavily tattooed young men on the stoop as the same ones who had thrown him to the ground earlier that day, telling him, not for the first time, that they wanted him to join their ranks. Now they had come to deliver a message to Gutierrez.

“They said they knew I was involved in the parents’ association,” Gutierrez said. “They said they would kill me and my children.

“I began to panic and shake,” she said. “I thought, ‘I have to go now. I am not going to risk my child’s life.’ ”

She quickly packed some backpacks for her and her children and called the only friend she knew who had a car. They drove all night to her friend’s mother’s house in another town.

“NO POLICE HERE”

Two months later, according to court documents, Ana was walking her 7-year-old daughter home from school when three members of a rival gang confronted them. Two of them grabbed Ana and her daughter, pinned their wrists behind their backs, and pointed a gun at the child’s head. The third pointed a gun at Ana’s head. They demanded that a payment of more than $5,000 be delivered in 24 hours, a huge sum for a woman who sold tortillas for a living.

Ana testified in her asylum hearing that she knew they were gang members “because they were dressed in baggy clothing and they also had ugly tattoos … all over their bodies and faces.”

Ana and her daughter ran home and then, fearing the gang would come after them, fled out the back door. “We had to jump over a wall, and I hurt my foot doing so,” she said in an affidavit. “I was desperate and knew that I had to leave – my daughter’s life and mine were in danger.”

The school principal said he understands why Gutierrez and Ana left Honduras. “Because there were no police here, (the gangs) did what they wanted,” he said. “They said, ‘We’re going to kill the members of the parent-teacher association to get them out of here.’ So the women fled.”

Gutierrez hid for two months at her friend’s mother’s house outside Tegucigalpa. She joined another woman and, with their children, they set out to cross Mexico. On the journey, they were kidnapped – common for Central American migrants – and held for a $3,500 ransom. Gutierrez contacted relatives who wired the money. The kidnappers released her and her two sons near the U.S. border.

There they piled with another group of migrants into an inflatable raft and crossed the Rio Grande, the border between Mexico and the United States. They landed near Hidalgo, Texas.

After walking for an hour and a half, lost and desperate, Gutierrez and her sons sat down in the middle of a dirt road and waited for someone to pass. Two officials in uniforms picked them up. They were eventually transferred to the ICE detention center in Artesia.

Ana fled with her daughter the night the gang members threatened them on the street. “We bought a bus pass to go to Guatemala and from Guatemala to Mexico and to the U.S.-Mexico border,” according to her court testimony. The journey took three weeks. In Mexico, she hired a coyote – a smuggler – to help them cross into the United States and then turned herself in to Border Patrol agents near Hidalgo. She arrived at the Artesia detention center just weeks after Gutierrez.

“The other women in the center told me that there was someone else from Honduras who I might know, but I wasn’t sure who they were talking about,” Gutierrez said. “And then one day we went to lunch, and there they were.”

Gutierrez said that was when she first learned that her fellow parent-teacher association board member had been threatened and had fled from home.

Volunteer lawyers helped the women prepare and submit their applications for asylum.

In late 2014, the two women were released on bond. Gutierrez moved with her boys to Oakland, California, to join her husband, and petitioned to have her case moved to San Francisco. Ana moved with her daughter to live with her daughter’s father and petitioned to have her case moved to Charlotte.

“ASYLUM FREE ZONES”

Many immigrants released on bond before their cases are heard have no idea that where they settle could make the difference between obtaining legal status and deportation.

People familiar with the system are well aware of the difference. When Theodore Murphy, a former ICE prosecutor who now represents immigrants, has a client in a jurisdiction with a high deportation rate but near one with a lower rate, “I tell them to move,” he said.

The Charlotte court that would hear Ana’s case was one of five jurisdictions labeled “asylum free zones” by a group of immigrant advocates in written testimony last December before the Inter-American Commission on Human Rights. The courts in Dallas, Houston, Las Vegas and Atlanta also received the designation.

The advocates testified that, while asylum is granted in nearly half of cases nationwide, Charlotte judges granted asylum in just 13 percent of cases in 2015. The Charlotte court was singled out for displaying a particular “bias against Central American gang and gender-related asylum claims.”

Couch is the toughest of Charlotte’s three immigration judges, according to the Reuters analysis.

The Transactional Records Access Clearinghouse, a research organization at Syracuse University in New York, first sounded the alarm about disparities in immigration court decisions in 2006. The next year, researchers at Temple University and Georgetown Law School concluded in a study titled “Refugee Roulette” that “in many cases, the most important moment in an asylum case is the instant in which a clerk randomly assigns an application to a particular asylum officer or immigration judge.” In 2008, the U.S. Government Accountability Office (GAO) found similar disparities in its own study.

In response to the rising criticism, the Executive Office for Immigration Review began tracking decisions to identify judges with unusually high or low rates of granting asylum. Mattingly, the EOIR spokeswoman, said the agency held training sessions for judges to address the disparities in 2008 and 2009. It then created a system for the public to file complaints against immigration judges.

In a 2016 report, the GAO found that little had changed. EOIR held a two-day training session last year. There is no training on the 2017 calendar.

From 2012 to 2016, EOIR received 624 complaints against judges. The 138 complaints lodged in 2016 alone included allegations of bias, as well as concerns about due process and judges’ conduct within the courtroom. Of the 102 complaints that had been resolved when the data were published, only three resulted in discipline, defined as “reprimand” or “suspension” of the judge. “Corrective actions” such as counseling or training were taken in 39 cases. Close to half the complaints were dismissed.

The agency does not identify judges who were the subjects of complaints.

Mattingly, the EOIR spokeswoman, said the agency “takes seriously any claims of unjustified and significant anomalies in immigration judge decision-making and takes steps to evaluate disparities in immigration adjudications.”

DAY IN COURT

Asylum applicants cannot gain legal U.S. residency because they fled their countries in mortal fear of civil strife or rampant crime or a natural disaster. They must convince the court that they have well-founded fears of persecution in their country because of their race, religion, nationality, political opinions or membership in a particular social group. The definition of a “particular social group” has been subject to conflicting interpretations in the courts, but in general, such a group comprises people who share basic beliefs or traits that can’t or shouldn’t have to be changed.

In the San Francisco court, Gutierrez’s lawyers argued that she qualified for asylum because as a leader of the parent-teacher association, she was at risk for her political opinion – her stand against gangs – and for belonging to a particular social group of Hondurans opposed to gang violence and recruitment in schools. The lawyers also argued that she was part of another particular social group as the family member of someone under threat, since the gangs had terrorized her son in trying to recruit him.

Holyoak was convinced. Gutierrez told Reuters that during her final hearing, the judge apologized for asking so many questions about what had been a painful time in her life, explaining that he had needed to establish her credibility.

In the Charlotte court, Ana’s lawyer focused more narrowly on her political opinion, arguing that she was at risk of persecution for her opposition to gangs in her position on the parent-teacher association board.

After hearing Ana’s case, Couch concluded in his written opinion that Ana was not eligible for asylum because she had “not demonstrated a well-founded fear of future persecution on account of a statutorily protected ground.” He wasn’t convinced that she risked persecution in Honduras because of her political opinion.

Well-established law recognizes family as a protected social group, according to the Center for Gender & Refugee Studies. Cases that claim opposition to gangs as a protected political opinion, the center says, have generated fewer precedent-setting decisions, making that argument a more difficult one to win in court, though it has prevailed in some cases.

Ana’s response to Couch’s extensive questioning played a part in the decision. In immigration court, the asylum seeker is typically the only witness. As a result, “credibility is really the key factor. Persecutors don’t give affidavits,” said Andrew Arthur, a former immigration judge who now works at the Center for Immigration Studies, a nonprofit organization that supports lower levels of immigration.

Couch wrote in his opinion that Ana’s difficulty recounting the names of the women on the association board weighed against her credibility. He noted that she testified about her fears of the gang “with a flat affect and little emotion,” displaying a “poor demeanor” that “did not support her credibility.”

The judge also questioned why, in an early interview with an asylum officer, Ana never mentioned threats to the parent-teacher association, and instead said she thought the gangs were targeting her for the money her daughter’s father was sending from the United States to build a house in Honduras.

Ana’s assertion that she learned from Gutierrez in detention about gang threats to the parent-teacher association was not “persuasive,” Couch wrote. “The evidence indicates this is a case of criminal extortion that the respondent attempts to fashion into an imputed political opinion claim.”

“SOMEONE WANTS TO KILL THEM”

Gutierrez said Ana told her in one of their occasional phone conversations that she felt intimidated by the intense questioning of the ICE attorney. Gutierrez also said her friend “is very forgetful. … It’s not that she is lying. It’s just that she forgets things.”

Lisa Knox, the lawyer who represented Gutierrez, said judges where she practices tend to give applicants the benefit of the doubt. “They have more understanding of trauma survivors and the difficulty they might have in recounting certain details and little discrepancies,” she said.

Further, Knox said, asylum seekers aren’t thinking about the finer points of U.S. asylum law when they are fleeing persecution. “People show up in our office (and) they have no idea why someone wants to kill them. They just know someone wants to kill them.”

Ana’s lawyer appealed her case to the Board of Immigration Appeals (BIA), the first step in the appellate process. This time, her lawyer included arguments about her membership in a particular social group. She lost. In a three-page ruling, one board member said Ana’s lawyer could not introduce a new argument on appeal and agreed with Couch that Ana hadn’t proved a political motive behind the gang members’ attack.

Ana missed the deadline to appeal the BIA decision to the 4th U.S. Circuit Court of Appeals because her lawyer confused the deadline. She petitioned the BIA through new lawyers to reopen her case and send it back to the immigration court to allow her to present new evidence of her persecution. The new lawyers argued that her previous representation had been ineffective.

In July, the BIA granted Ana the right to a rehearing in immigration court, sending her case back to Charlotte, where it could be heard again by Couch.

Gutierrez can live and work legally in the United States and will ultimately be able to apply for citizenship. The 43-year-old, who worked as a nurse in Honduras, lives in a small one-bedroom apartment with her husband, her two sons – now 15 and 8 – her adult daughter and her grandson. She works as an office janitor and is taking English classes. Her boys are in school. The older one, once threatened by gangs in Honduras, likes studying history and math and is learning to play the cello.

Ana, 31, has had a baby since arriving in the United States and has been granted work authorization while she awaits a final decision on her case. She and her lawyers declined to share more detailed information about her situation because she remains fearful of the gangs in Honduras.

“I am very worried about her,” Gutierrez said. “The situation in our country is getting worse and worse.”

Last February, a 50-year-old woman and her 29-year-old son who were selling food at the school Gutierrez and Ana’s children attended were kidnapped from their home and decapitated, according to police records.

The head of the son was placed on the body of the mother and the head of the mother was placed on the body of the son. The murders, like more than 93 percent of crimes in Honduras, remain unsolved.

Additional reporting by Gustavo Palencia and Kristina Cooke

U.S. immigration courts are administrative courts within the Department of Justice’s Executive Office for Immigration Review. Unlike federal court judges, whose authority stems from the U.S. Constitution’s establishment of an independent judicial branch, immigration judges fall under the executive branch and thus are hired, and can be fired, by the attorney general.

More than 300 judges are spread among 58 U.S. immigration courts in 27 states, Puerto Rico and the Northern Mariana Islands. Cases are assigned to an immigration court based on where the immigrant lives. Within each court, cases are assigned to judges on a random, rotational basis.

The courts handle cases to determine whether an individual should be deported. Possible outcomes include asylum; adjustments of status; stay of deportation; and deportation. Decisions can be appealed to the Board of Immigration Appeals, an administrative body within the Department of Justice. From there, cases can be appealed to federal appeals court.

The Federal Bar Association and the National Association of Immigration Judges have endorsed the idea of creating an immigration court system independent of the executive branch. The Government Accountability Office studied some proposals for reform in 2017, without endorsing any particular model.

Reade Levinson

Heavy Odds

By Mica Rosenberg in Oakland, California, and Reade Levinson and Ryan McNeill in New York, with additional reporting by Gustavo Palencia in Tegucigalpa, Honduras, and Kristina Cooke in San Francisco

Data: Reade Levinson and Ryan McNeill

Graphics: Ashlyn Still

Photo editing: Steve McKinley and Barbara Adhiya

Video: Zachary Goelman

Design: Jeff Magness

Edited by Sue Horton, Janet Roberts and John Blanton”

Go to the link at the beginning to get the full benefit of the “interactive” features of this report on Reuters.

Also, here is an interactive presentation on the Trump Administration’s overall immigration policies:

http://www.reuters.com/trump-effect/immigration

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Great reporting by Mica and her team!

Interesting to note that the Arlington Immigration Court, where I sat for 13 years, has one of the most consistent “grant rates” in the country, ranging from approximately 54% to 60% grants. Compare that with the Charlotte Immigration Court at 11% to 28% grants within the same judicial circuit (the Fourth Circuit). Something is seriously wrong here. And, Jeff Sessions has absolutely no intent of solving it except by pushing for 100% denials everywhere! That’s the very definition of a “Kangaroo Court!”

It’s time for an Article I Court. But, not sure it will happen any time soon. Meanwhile Sessions is making a mockery out of justice in the Immigration Courts just as he has in many other parts of the U.S. Justice system.

PWS

10-17-17

ASSEMBLY LINE “JUSTICE” IS “INJUSTICE” — U.S. Immigration Judges Are NOT “Piece Workers,” & Fair Court Decisions Are Not “Widgets” That Can Be Quantified For Bogus “Performance Evaluations!” — Are Three Wrong Decisions “Better” Than One Right Decision?

http://immigrationimpact.com/2017/10/13/doj-immigration-judges-assembly-line/

Katie Shepherd writes in Immigration Impact:

“The Department of Justice (DOJ) is reportedly intending to implement numerical quotas on Immigration Judges as a way of evaluating their performance. This move would undermine judicial independence, threaten the integrity of the immigration court system, and cause massive due process violations.

As it currently stands, Immigration Judges are not rated based on the number of cases they complete within a certain time frame. The DOJ – currently in settlement negotiations with the union for immigration judges, the National Association of Immigration Judges (NAIJ) – is now trying to remove those safeguards, declaring a need to accelerate deportations to reduce the court’s case backlog and ensure more individuals are deported.

This move is unprecedented, as immigration judges have been exempt from performance evaluations tied to case completion rates for over two decades. According to the NAIJ, the basis for the exemption was “rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

If case completion quotas are imposed, Immigration Judges will be pressured to adjudicate cases more quickly, unfairly fast-tracking the deportation of those with valid claims for relief. Asylum seekers may need more time to obtain evidence that will strengthen their case or find an attorney to represent them. Only 37 percent of all immigrants (and merely 14 percent of detained immigrants) are able to secure legal counsel in their removal cases, even though immigrants with attorneys fare much better at every stage of the court process.

If judges feel compelled to dispose of cases quickly decreasing the chances that immigrants will be able to get an attorney, immigrants will pay the price, at incredible risk to their livelihood.

The Justice Department has expressed concern in recent weeks about the enormous backlog of 600,000 cases pending before the immigration courts and may see numerical quotas as an easy fix. Just this week, Attorney General Jeff Sessions called on Congress to tighten up rules for people seeking to “game” the system by exploiting loopholes in a “broken” and extremely backlogged process. However, punishing immigration judges with mandatory quotas is not the solution.

The announcement, however, has sparked condemnation by immigration judges and attorneys alike; in fact, the national IJ Union maintains that such a move means “trying to turn immigration judges into assembly-line workers.”

Tying the number of cases completed to the evaluation of an individual immigration judge’s performance represents the administration’s latest move to accelerate deportations at the expense of due process. Judges may be forced to violate their duty to be fair and impartial in deciding their cases.”

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The backlog problems in U.S. Immigration Court have nothing to do with “low productivity” by U.S. Immigration Judges.

It’s a result of a fundamentally flawed system created by Congress, years of inattention and ineffective oversight by Congress, political interference by the DOJ with court dockets and scheduling, years of “ADR,” and glaringly incompetent so-called judicial management by DOJ. There are “too many chefs stirring the pot” and too few “real cooks” out there doing the job.

The DOJ’s inappropriate “Vatican style” bureaucracy has produced a bloated and detached central administrative staff trying unsuccessfully to micromanage a minimalist, starving court system in a manner that keeps enforcement-driven politicos happy and, therefore, their jobs intact.

How could a court system set up in this absurd manner possibly “guarantee fairness and due process for all?” It can’t, and has stopped even pretending to be focused on that overriding mission! And what competence would Jeff Sessions (who was turned down for a Federal judgeship by members of his own party because of his record of bias) and administrators at EOIR HQ in Falls Church, who don’t actually handle Immigration Court dockets on a regular basis, have to establish “quotas” for those who do? No, it’s very obvious that the “quotas” will be directed at only one goal: maximizing removals while minimizing due process

When EOIR was established during the Reagan Administration the DOJ recognized that case completion quotas would interfere with judicial independence. What’s changed in the intervening 34 years?

Two things have changed: 1) the overtly political climate within the DOJ which now sees the Immigration Courts as part of the immigration enforcement apparatus (as it was before EOIR was created); and 2) the huge backlogs resulting from years of ADR, “inbreeding,” and incompetent management by the DOJ. This, in turn, requires the DOJ to find “scapegoats” like Immigration Judges, asylum applicants, unaccompanied children, and private attorneys to shift the blame for their own inappropriate behavior and incompetent administration of the Immigration Courts.

In U.S. Government parlance, there’s a term for that: fraud, waste, and abuse!

PWS

10-17-17

NICKOLE MILLER IN THE WASHPOST: The Truth About Vulnerable Asylum Seekers Refutes Sessions’s False Narrative!

Safari – Oct 16, 2017 at 10:17 AM

Inaccurate claims from Mr. Sessions

The Oct. 13 news article “Citing ‘rampant abuse and fraud,’ Sessions urges tighter asylum rules” quoted Attorney General Jeff Sessions as saying that many asylum claims “lacked merit” and are “simply a ruse to enter the country illegally.” As one of the “dirty immigration lawyers” who has represented hundreds of asylum seekers, I find these claims wildly inaccurate and dangerous. When I ask my clients, the majority of them children, why they came to the came to the United States, they invariably tell me the same thing: I had no choice — I was running for my
life. Indeed, the U.N. High Commissioner for Refugees reported that 58 per cent of Northern Triangle and Mexican children displaced in the United States suffered or faced harms that indicated need for international protection. These children are not gaming the system; they are seeking refuge from rampant gender based violence, MS-13 death threats and child abuse.
While I like to think I am a “smart” attorney, even immigrants represented by the smartest attorneys do not stand a chance in places such as Atlanta, where the asylum grant rate is as low as 2 per cent. Yes, reform is needed, but the only reform we should consider is one that provides more robust protections and recognizes our moral and legal obligation to protect asylum seekers.

Nickole Miller, Baltimore The writer is a lawyer with the Immigrant Rights Clinic at the University of Baltimore School of Law.

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Nickole speaks truth. Almost all of the “credible fear” reviews involving folks from the Northern Triangle that I performed as a U.S. Immigration Judge, both at the border and in Arlington, presented plausible claims for at least protection under the Convention Against Torture (“CAT”) if the rules were properly applied (which they often are not in Immigration Court — there is a strong bias against granting even the minimal protection that CAT provides). Many also had plausible gender-based, religious, or political asylum claims if they were allowed to gather the necessary evidence.

Whether ultimately successful or not, these individuals were clearly entitled to their day in court, to be listened to by an unbiased judicial decision maker, to have the reasons for the decision to accept or reject them carefully explained in language they can understand, and to have a right to appeal to a higher authority.

Of course, without a lawyer and some knowledge of the complicated CAT regulations and administrative and Federal Court case-law, a CAT applicant would have about “0 chance” of success. The same is true of asylum which requires proof not only of the possibility of future harm, but also proof of causal relationship to a “protected ground” an arcane concept which most unfamiliar with asylum law cannot grasp.

In other words, our system sends back individuals who have established legitimate fears of death, rape, or torture, just because they fail to show that it is “on account” of race, religion, membership in a particular social group, or political opinion. These concepts are often applied, particularly in Immigration Court where respondents are unrepresented, in the manner “most unfavorable” to the claimant. This is in direct violation of the U.N. guidance which holds that credible asylum seekers should be given “the benefit of the doubt.”

Moreover, assuming that we have the “right” to send good folks, who have done no wrong, back to be harmed in the Northern Triangle, that doesn’t mean that we should be doing so as either a legal or moral matter. That’s what devices like Temporary Protected Status (“TPS”), Deferred Enforced Departure (“DED”), and just “plain old Prosecutorial Discretion (“PD”) are for: to save lives and maintain the status quo while deferring the more difficult decisions on permanent protection until later. Obviously, this would also allow at least minimal protections to be granted by DHS outside the Immigration Court system, thus relieving the courts of thousands of cases, but without endangering lives, legal rights, or due process.

I agree with Nickole that the “asylum reform” needed is exactly the opposite of that being proposed by restrictionist opportunists like Trump and Sessions. The first step would be insuring that individuals seeking protections in Immigration Court have a right to a hearing before a real, impartial judicial official who will apply the law fairly and impartially, and who does not work for the Executive Branch and therefore is more likely to be free from the type of anti-asylum and anti-migrant bias overtly demonstrated by Sessions and other enforcement officials.

PWS

10-16-17

COURTSIDE BRINGS YOU “LAW YOU CAN USE!” – Hon. Jeffrey Chase Tells “Do’s and Don’t’s” Of Challenging CREDIBILITY On BIA Appeals! EXTRA BONUS! NEW PWS COMMENTARY: Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

https://www.jeffreyschase.com/blog/2017/10/12/challenging-credibility-findings-before-the-bia

Jeffrey writes:

Oct 12 Challenging Credibility Findings Before the BIA

“As discussed in last week’s post, in 2002, the standard under which the BIA reviews credibility determination was changed as part of the reforms instituted by then Attorney General John Ashcroft. Furthermore, in 2005, Congress enacted the REAL ID Act, which provided immigration judges with broader grounds for determining credibility. These two factors combine to make it more difficult for the Board to reverse an immigration judge’s adverse credibility finding than it was prior to these changes. The following are some thoughts on strategy when appealing credibility findings to the Board.

1. Don’t offer alternative interpretations of the record.

You cannot successfully challenge an adverse credibility finding by offering an alternative way of viewing the record. If the IJ’s interpretation is deemed reasonable, the BIA cannot reverse on the grounds that it would have weighed the documents, interpreted the facts, or resolved the ambiguities differently. Or as the Supreme Court has held, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

2. Does the record support the IJ’s finding?

On occasion, the discrepancy cited by the IJ is not found in the transcript. IJs hear so many cases; some hearings are spread over months or years due to continuances; witnesses or their interpreters do not always speak clearly; documents are sometimes clumsily translated. For all of these reasons, it is possible that the IJ didn’t quite hear or remember what was said with complete accuracy, or might have misconstrued what a supporting document purports to be or says. It is worth reviewing the record carefully.

3. Does the REAL ID Act standard apply?

The REAL ID Act applies to applications filed on or after May 11, 2005. With the passage of time, fewer and fewer cases will involve applications filed prior to the effective date. However, there are still some cases which have been administratively closed, reopened, or remanded which involve applications not subject to the REAL ID Act standard. In those rare instances, look to whether the IJ relied on factors that would not support an adverse credibility finding under the pre-REAL ID standard. For example, did the IJ rely on non-material discrepancies to support the credibility finding? If so, argue that under the proper, pre-REAL ID Act standard, the discrepancies cited must go to the heart of the matter in order to properly support an adverse credibility finding.

4. Did the IJ’s decision contain an explicit credibility finding?

Under the REAL ID Act, “if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” See INA section 208(b)(1)(B)(iii) (governing asylum applications); INA section 240(c)(4)(C) (governing all other applications for relief). Therefore, review the decision carefully to determine if an explicit credibility finding was made. In some decisions, the immigration judge will find parts of the testimony “problematic,” or question its plausibility, without actually reaching a conclusion that the testimony lacked credibility. In such cases, argue on appeal that the statutory presumption of credibility should apply.

5. Did the credibility finding cover all or only part of the testimony?

As an IJ, I commonly stated in my opinions that credibility findings are not an all or nothing proposition. A respondent may be credible as to parts of his or her claim, but incredible as to other aspects. There are instances in which a single falsehood might discredit the entirety of the testimony under the doctrine of falsus in uno, falsus in omnibus. However, there are variations in the application of the doctrine among the circuits, and there are exceptions. For example, the Second Circuit in Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007) recognized the doctrine, but laid out five specific exceptions under which a false statement will not undermine the overall credibility. However, the Seventh Circuit, in Kadia v. Gonzales, 501 F.3d 817 (7th Cir, 2007) rejected falsus in uno,referring to it as a “discredited doctrine.” The Ninth Circuit, in Shouchen Yang v. Lynch, 815 F.3d 1173 (9th Cir. 2016), acknowledged that an IJ may apply the doctrine, but that the Board itself could not (for example, to deny a motion to reopen based on a prior adverse credibility finding). Therefore, determine whether under the applicable circuit case law the falsehood cited by the IJ was sufficient to undermine all of the testimony. If not, determine whether the remainder of the testimony is sufficient to meet the burden of proof.

6. Did the IJ rely on a permissible inference, or impermissible speculation?

In Siewe v. Gonzales, supra, the Second Circuit discussed the difference between a permissible inference and impermissible “bald” speculation. The court cited earlier case law stating that “an inference is not a suspicion or a guess.” Rather, an inference must be “tethered to the evidentiary record:” meaning it should be supported “by record facts, or even a single fact, viewed in the light of common sense and ordinary experience.” Generally, findings such as “no real Christian wouldn’t know that prayer” or “the police would never leave a copy of the arrest warrant” would constitute bald speculation unless there was expert testimony or reliable documentation in the record to lend support to such conclusion.

7. Did the IJ permissibly rely on an omission under applicable circuit law?

There is a body of circuit court case law treating omissions differently than discrepancies. For example, several circuits have held that as there is no requirement to list every incident in the I-589, the absence of certain events from the written application that were later included in the respondent’s testimony did not undermine credibility. Look to whether the omission involved an event that wasn’t highly significant to the claim. Also look for other factors that might explain the omission, i.e. a female respondent’s non disclosure of a rape to a male airport inspector; a respondent’s fear of disclosing his sexual orientation to a government official upon arrival in light of past experiences in his/her country. Regarding omissions in airport statements, please refer to my prior post concerning the questionable reliability of such statements in light of a detailed USCIRF report. See also, e.g., Moab v. Gonzales, 500 F.3d 656 (7th Cir. 2007); Ramseachire v. Ashcroft, 357 F.3d 169 (2d Cir. 2004), addressing factors to consider in determining the reliability of airport statements.

8. Was the respondent provided the opportunity to explain the discrepancies?

At least in the Second and Ninth Circuits, case law requires the IJ to provide the respondent with the opportunity to respond to discrepancies. The Second Circuit limits this right to situations in which the inconsistency is not “dramatic,” and the need to clarify might therefore not be obvious to the respondent. See Pang v. USCIS, 448 F.3d 102 (2d Cir. 2006).

9. Did the “totality of the circumstances” support the credibility finding?

Even under the REAL ID Act standards, the IJ must consider the flaws in the testimony under “the totality of the circumstances, and all relevant factors.” INA sections 208(b)(1)(B)(ii), 240(c)(4)(C). The circuit courts have held that the standard does not allow IJs to “cherry pick” minor inconsistencies to reach an adverse credibility finding. For a recent example, note the Third Circuit’s determination in Alimbaev v. Att’y Gen. of U.S. (discussed in last week’s post) finding two inconsistencies relied on by the BIA as being “so insignificant…that they would probably not, standing alone, justify an IJ making an adverse credibility finding…”

REPRINTED WITH PERMISSION

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Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

For those of you who don’t know him, Judge Jeffrey Chase has a unique perspective starting his career in private practice, becoming a U.S. Immigration Judge in New York, and finally finishing his Government career as an Attorney Advisor writing decisions for the BIA.

Great stuff, Jeffrey! I love being able to help folks “tune in” to things the they can actually use in the day to day practice of immigration law!

One of the best ways to fight “Gonzoism” and uphold due process is by winning the cases one at a time through great advocacy. Don’t let the “false Gonzo narrative” fool you! Even under today’s restrictive laws (which Gonzo would like to eliminate or make even more restrictive) there are lots of “winners” out there at all levels.

But given the “negative haze” hanging over the Immigration Courts as a result of Gonzo and his restrictionists agenda, the best way of stopping the “Removal Railway” is from the “bottom up” by: 1) getting folks out of “Expedited Removal” (which Gonzo intends to make a literal “killing floor”); 2) getting them represented so they can’t be “pushed around” by DHS Counsel and Immigration Judges who fear for their jobs unless they produce “Maximo Removals with Minimal Due Process” per guys like Gonzo and Homan over at DHS; 3) getting them out of the “American Gulag” that Sessions and DHS have created to duress migrants into not seeking the protection they are entitled to or giving up potentially viable claims; 4) making great legal arguments and introducing lots of corroborating evidence, particularly on country conditions, at both the trial and appellate levels (here’s where Jeffrey’s contributions are invaluable); 5) fighting cases into the U.S. Courts of Appeals (where Gonzo’s false words and perverted views are not by any means the “last word”); and 5) attacking the overall fairness of the system in both the Courts of Appeals and the U.S. District Courts — at some point life-tenured Article III have to see the absolute farce that an Immigration Judiciary run by a clearly biased xenophobic White Nationalist restrictionist like Sessions has become. Every time Gonzo opens his mouth he proves that the promise of Due Process in the Immigration Courts is bogus and that the system is being rigged against migrants asserting their rights.

Sessions couldn’t be fair to a migrant or treat him or her like a human being if his life depended on it! The guy smears dreamers, children whose lives are threatened by gangs, hard-working American families, LGBTQ Americans, and women who have been raped or are victims of sexual abuse. How low can someone go!

Virtually everything Gonzo says is untrue or distorted, aimed at degrading the humanity and legal protections of some vulnerable group he hates (Gonzo’s “victim of the week”), be it the LGBTQ community, asylum seekers, women, children, immigrants, Muslims, African-Americans, attorneys, the Obama Administration, or U.S. Immigration Judges trying to do a conscientious job. Perhaps the biggest and most egregious “whopper” is his assertion that those claiming asylum at the Southern Border are either fraudsters or making claims not covered by law.

On the contrary, according to a recent analysis by the UNHCR, certainly a more reliable source on asylum applicants than Gonzo, “over 80 percent of women from El Salvador, Guatemala, Honduras, and Mexico who were screened on arrival at the U.S. border ‘were found to have a significant possibility of establishing eligibility for asylum or protection under the Convention against Torture.'” “Majority of Asylum Seekers have Legitimate Claims: Response to Sessions Statement,” available online at https://www.wola.org/2017/10/no-basis-claims-rampant-abuse-us-asylum-system-response-sessions-statement/.

This strongly suggests that the big fraud here isn’t coming from asylum seekers. No, the real fraud is the unusually high removal rate at the border touted by Gonzo and his EOIR “patsies” — the result of improper adjudications or unlawful manipulation of the system (intentional duress – misinforming individuals about their rights) by DHS, the U.S. Immigration Court, or simply wrong constructions of protection law.

I think that the majority of Immigration Court cases are still “winners” if the respondents can get competent representation and fight at all levels. Folks, Jeff “Gonzo Apocalypto” Sessions has declared war on migrants and on the Due Process Clause of our Constitution.

He’s using his reprehensible false narratives and “bully pulpit” to promote the White Nationalist, Xenophobic, restrictionist “myth” that most claims and defenses in Immigration Court are “bogus” and they are clogging up the court with meritless claims just to delay removal. The next step is to eliminate all rights and expel folks without any semblance of due process because Gonzo has prejudged them in advance as not folks we want in our country. How biased can you get!

So, we’ve got to prove that many, probably the majority, of the cases in Immigration Court have merit! Removal orders are being “churned out” in “Gonzo’s world” by using devices such as “in absentia orders” (in my extensive experience, more often than not the result of defects in service by mail stemming from sloppiness in DHS and EOIR records, or failure of the DHS to explain in Spanish — as required by law but seldom actually done — the meaning of a Notice to Appear and the various confusing “reporting requirements”); blocking folks with credible fears of persecution or torture from getting into the Immigration Court system by pushing Asylum Officers to improperly raise the standard and deny migrants their “day in court” and their ability to get representation and document their claims; using detention and the bond system to “coerce” migrants into giving up viable claims and taking “final orders;” intentionally putting detention centers and Immigration Courts in obscure detention locations for the specific purpose of making it difficult or impossible to get pro bono representation and consult with family and friends; using “out-of-town” Immigration Judges on detail or on video who are being pressured to “clear the dockets” by removing everyone and denying bonds or setting unreasonable bonds; sending “messages” to Immigration Judges and BIA Judges that most cases are bogus and the Administration expects them to act as “Kangaroo Courts” on the “Removal Railroad;” taking aim at hard-earned asylum victories at all levels by attacking and trying to restrict the many favorable precedents at both the Administrative and Court of Appeals levels that Immigration Judges and even the BIA often ignore and that unrepresented aliens don’t know about; improperly using the Immigration Court System to send “don’t come” enforcement messages to refugees in Central America and elsewhere; and shuttling potentially winning cases to the end of crowded dockets through improper “ADR” and thereby both looking for ways to make those cases fail through time (unavailable witnesses, changing conditions) and trying to avoid the favorable precedents and positive asylum statistics that these “winners” should be generating.

Folks, I’ve forgotten more about immigration law, Due Process, and the Immigration Courts than Gonzo Apocalypto and his restrictionist buddies on the Hill and in anti-immigrant interest groups will ever know. Their minds are closed. Their bias is ingrained. Virtually everything coming out of their mouths is a pack of vicious lies designed to “throw dirt” and deprive desperate individuals of the protections and fairness we owe them under our laws, international law, and our Constitution. Decent human beings have to fight Gonzo and his gang of “Bad Hombres” every inch of the way so that their heinous and immoral plan to eliminate immigration benefits and truncate Due Process for all of us on the way to creating an “Internal Security Force” and an “American Gulag” within the DHS will fail.

Remember,”as you did it to one of the least of these my brothers, you did it to me.” Gonzo’s going to have some ‘splainin top do at some point in the future!

Stand Up For Migrants’ Rights! “Gonzo and His Toxic Gang Must Go!” Sen. Liz Warren was absolutely right. Demand a “recount” on the NYT “Worst Trump Cabinet Member” poll. Gonzo is in a class by himself!

PWS

10-14-17

PARTY OF INFAMY AND GROSS INDECENCY: GOP’S WHITE NATIONALIST WING SEEKS TO DESTROY U.S. ASYLUM LAW, SCREW THE MOST VULNERABLE – Want To Turn America Into A “Rogue Nation” That Trashes Human Rights! – THEY MUST BE EXPOSED AND STOPPED!

http://www.motherjones.com/politics/2017/10/trumps-immigration-proposal-could-make-it-radically-harder-to-get-asylum/

Noah Lanard reports for Mother Jones:

“When people arrive at the border seeking asylum from persecution, the United States gives them the benefit of the doubt. As long as they can show there’s a “significant possibility” that they deserve protection, they’re allowed to stay and make their case to an immigration judge. President Donald Trump and Republicans in Congress want to change that.

On Sunday, the Trump administration demanded that Congress overhaul the US asylum system as part of any legislation to protect the nearly 700,000 undocumented immigrants known as Dreamers from deportation. The White House’s asylum proposal, laid out in nine bullet-pointed items as part of the broader immigration plan, appears to be modeled on the Asylum Reform and Border Protection Act, a bill that Republicans on the House Judiciary Committee approved in July. The bill, which has not been passed by the full House, would make it easier for the Department of Homeland Security to quickly reject asylum claims and force most asylum seekers to remain in detention while their cases are decided. The overall effect would be to transform a system for protecting persecuted people, created in the wake of World War II, into a much more adversarial process.

At a hearing in July, Rep. Zoe Lofgren (D-Calif.) warned that the GOP proposal would “all but destroy the US asylum system.” Now Trump is trying to fold those changes into a deal to protect the Dreamers—undocumented immigrants who came to the country as children—who were previously covered by Barack Obama’s Deferred Action for Childhood Arrivals program.

Eleanor Acer, an expert on refugees at the advocacy group Human Rights First, saidin a statement Monday that Trump’s demands will “block those fleeing persecution and violence from even applying for asylum, and punish those who seek protection by preventing their release from immigration detention facilities and jails.”

But Republicans like Rep. Bob Goodlatte (R-Va.) argue that asylum reform is needed to address “pervasive” fraud, such as false claims of persecution. Asylum claims from the “Northern Triangle” countries of Guatemala, El Salvador, and Honduras have been a major focus for Republicans. Between 2013 and 2015, there were more asylum claims from the Northern Triangle, which has been terrorized by MS-13 and other gangs, than in the previous 15 years combined. A 2015 report from the Government Accountability Office found that the United States has “limited capabilities to detect asylum fraud.” But the scope of the problem is not known. Leah Chavla, a program officer at the Women’s Refugee Commission, says going after fraud is misguided in light of the many checks and balances that are already in place.

Trump’s proposal calls for raising the standard of proof for asylum seekers to establish that they have a “credible fear” of persecution, entitling them to make their case to a judge. That tracks language in the House bill that would require asylum seekers to show in their initial screening that is “more probable than not” that they deserve asylum. Immigrant advocates say that threshold, which would replace the “significant possibility” standard that exists today, is ill-suited to the realities of seeking asylum. Asylum seekers often don’t have a lawyer and may be exhausted from their time in immigration detention when the initial screening with an asylum officer takes place, says Olga Byrne, an asylum and refugee expert at Human Rights First. As a result, the screenings are designed to weed out what Byrne calls “obviously frivolous cases.”David Bier, an immigration policy analyst at the libertarian Cato Institute, believes it’s “absurd” to expect asylum seekers to be able to prove their claims soon after they arrive. “Many asylees have to flee under cover of darkness or swim through streams to escape their persecutors,” he wrote in July. “They often set out without any concept of where they will end up, let alone with documentary evidence in their pockets.”In the 75 percent of cases where a “credible fear” of persecution is established, the asylum seeker then faces the more difficult task of convincing an immigration judge to allow him or her to stay in the United States indefinitely. In the 2016 fiscal year, 57 percent of asylum claims were denied, according to data from the nonpartisan Transactional Records Access Clearinghouse. Due to a 632,000-case backlog in immigration courts, asylum seekers often spend months, and sometimes more than a year, in detention while they wait for their cases to be decided. (The Supreme Court will decide this term whether detaining asylum seekers without a bond hearing is constitutional.)In 2009, the Obama administration ordered US Immigration and Customs Enforcement to release asylum seekers from detention if they did not pose a danger to others or a flight risk, though it later changed that policy as part of its effort to deter Central American migrants. Trump’s proposal calls vaguely for ensuring “only appropriate use” of the executive branch’s authority to release asylum seekers. That is similar to language in the House bill that would block the president from releasing large groups of asylum seekers. People who remain in immigration detention are much less likely to have a lawyer and win their cases, according to a 2015 studypublished in the University of Pennsylvania Law Review.Trump’s framework also says Congress should expand the administration ability to return asylum seekers to “safe third countries.” Again, that follows language in the House bill that would allow asylum seekers to be sent to Mexico, even if they are from other countries. Mexico does not want to receive these asylum seekers and is already struggling to deal with its own surge in asylum claims by Central Americans. Under the Republican bill, unaccompanied child migrants could be among those sent to Mexico, where more than 2,200 people were murdered in June, the deadliest month on record. The Trump administration has already taken steps to make it harder to obtain asylum. In February, the Department of Homeland Security released a memothat makes it easier for asylum officers to reject asylum claims. Advocacy groups have also reported that border officials are now more likely to summarily reject asylum claims when people present themselves at the border. And in June, the Trump administration ended a program that paired 630 families seeking asylum—almost all of them Central American mothers and children—with social workers who help them navigate life in the United States. The women are likely to be tracked by ankle monitors instead, the Associated Press reported in June. If Trump’s demands become law, the US asylum system will change fundamentally. Those calling for the reforms are “just trying to get people in and out as quickly as possible,” Chavla says. “And there’s no regard for their protection. There’s no regard for due process.”

Republicans’ asylum proposals “don’t just chip away at our nation’s asylum program,” Lofgren said in July. “They decimate it.”

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The real “fraudsters” here are the GOP restrictionists, led by folks like Goodlatte, Miller, and Sessions, trying to fob off their knowingly false and contrived narrative on America. Shame!

Second, the current system intentionally denies lawyers to the respondents in detention in obscure locations along the Southern Border, specifically selected to make it difficult for individuals to exercise their rights. Raising the standards would virtually guarantee rejection of all such asylum seekers without any hearing at all. The standard for having asylum granted is supposed to be a generous “well-founded fear” (in other words, a 10% chance or a “reasonable chance”). In fact, however, DHS and EOIR often fail to honor the existing legal standards. Forcing unrepresented individuals in detention with no chance to gather evidence to establish that it is “more likely than not” that they would be granted asylum is a ridiculous travesty of justice.

Third, access to lawyers, not detention, is the most cost-effective way to secure appearance at Immigration Court hearings. Individuals who are able to obtain lawyers, in other words those who actually understand what is happening, have a relatively low rate of “failure to appear.” In fact, a long-term study by the American Immigration Council shows that 95% of minors represented by counsel appear for their hearings as opposed to approximately 67% for those who are unrepresented. See,e.g., https://www.americanimmigrationcouncil.org/research/taking-attendance-new-data-finds-majority-children-appear-immigration-court

Rather than curtailment of rights or expensive and inhumane detention, the best way of insure that all asylum applicants appear for their scheduled hearings and receive full due process would be to insure that the hearings take place in areas with adequate supplies of pro bono and “low bono” counsel and that hearings are scheduled in a predictable manner that does not intentionally outstrip the capabilities of the pro bono bar.

Fourth, a rational response to fraud concerns would be building better fraud detection programs within DHS, rather than denying vulnerable individuals their statutory and constitutional rights. What would a better system look like: more traditional law enforcement tools, like undercover operations, use of informants to infiltrate smuggling operations, and much better intelligence on the operations of human trafficking rings. And, there’s plenty of resources to do it. DHS just lacks the ability and/or the motivation. Many of the resources now wasted on “gonzo” interior enforcement and mindless detention — sacking up janitors and maids for deportation and detaining rape victims applying for asylum — could be “redeployed” to meaningful, although more challenging, law enforcement activities aimed at rationally addressing the fraud problem rather than using it as a bogus excuse to harm the vulnerable.

Fifth, Goodlatte’s whole premise of fraud among Southern Border asylum applications is highly illogical. Most of the Southern Border asylum claims involve some variant of so-called “particular social groups” or “PSGs,” But, the entire immigration adjudication system at all levels has traditionally been biased against just such claims. and, it is particularly biased against such claims from Central America. PSG claims from Central America receive “strict scrutiny’ at every level of the asylum system! No fraudster in his or her right mind would go to the trouble of “dummying up” a PSG claim which will likely be rejected. No, if you’re going to the trouble of committing fraud, you’d fabricate a “political or religious activist or supporter claim” of the type that are much more routinely granted across the board.

Don’t let Trump, Miller, Sessions, Goodlatte, and their band of shameless GOP xenophobes get away with destroying our precious asylum system! Resist now! Resist forever! Stand up for Due Process, or eventually YOU won’t any at all! Some Dude once said “as you did it to one of the least of these my brothers, you did it to me.” While arrogant folks like the restrictionists obviously don’t believe that, it’s still good advice.

PWS

10-10-17

Category: Nexus

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

A truce ends

A not-quite-independent judiciary

Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

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Dec 2 Honor Killings and Particular Social Group

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HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

Deena N. Sharuk

Tanishka V. Cruz

Rachel C. McFarland

II. WHO IS A REFUGEE?

A. Refugee Definition

B. Standard of Proof

C. What Is Persecution?

D. Nexus

III. PARTICULAR SOCIAL GROUP

A. The Three Requirements

B. Success Stories

C. The Usual Losers

D. What Can Go Wrong?

E. A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

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‘We see the police as terrorists’

A truce ends

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“They fled danger at home to make a high-stakes bet on U.S. immigration courts

A not-quite-independent judiciary

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Oct 12 Challenging Credibility Findings Before the BIA

Don’t Let “Gonzo’s” Lies & His Agenda Of Hate & Intentional Dehumanization Of Our Most Vulnerable Populations Win — Fight His Bogus Distorted Attack On Our Humanity & Our Legal System Every Inch Of The Way!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

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