Asylum – Page 12 – immigrationcourtside.com

🏴‍☠️🤯☠️ INVITE ‘EM TO DEFECT, THEN ARBITRARILY REJECT — Russian Allies Find Broken U.S. Asylum System Akin To Russian Roulette! — “I don’t understand how we are denying Russians at all,” says Jennifer Scarborough, Refugees’ Lawyer!

Jennifer Scarborough, EsquireLaw Firm of Jennifer Scarborough PLLC Harlingen, TX PHOTO: Firm — Jennifer Scarborough, Esquire
Law Firm of Jennifer Scarborough PLLC
Harlingen, TX
PHOTO: Firm

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=df3af6fe-6f28-47f0-a65a-95a9e0272c10

Hamed Aleaziz & Tracy Wilkinson report for the LA Times:

WASHINGTON — Numerous Russians attempting to escape conscription onto the Ukrainian battlefield have made perilous journeys to the United States, trusting in the Biden administration’s declaration that the U.S. would “welcome” those fleeing the war and their forced participation in it.

Instead of winning asylum, however, some of these men have been detained and, in at least one case, deported back to Russia, where they could be thrown into the fight against U.S.-armed Ukraine — into “the meat grinder,” as the U.S. secretary of State recently put it.

The U.S. has deported nearly 190 Russians since the beginning of October 2022, almost three times as many as were removed during the entire prior year.

Some Russian conscripts have refused to board deportation flights, forcing U.S. immigration officers to return them to immigration detention and legal limbo.

Three Russians the U.S. detained and sought to deport told The Times that certain abuse awaited them at home, where draft dodgers are subject to imprisonment or swift dispatch to front lines. The three Russians said they felt bewildered — betrayed, even — bythe U.S. asylum system. The Times is withholding their identities because they fear retribution if they are returned to Russia.

“Death awaits me there if I go back,” said one Russian man in his 20s. He said he was slated to be deported but fainted when immigration officials loaded him onto the plane, which forced them to return him to detention.

Although Ukrainian President Volodymyr Zelensky urged Russians who opposed the war to stay at home and fight to topple Russian President Vladimir Putin, the Biden administration has explicitly encouraged Russians who do not want to fight in Ukraine to seek asylum in the United States.

“There are people out there in Russia who do not want to fight Putin’s war or die for it,” White House Press Secretary Karine Jean-Pierre said in September. “We believe that, regardless of nationality, they may apply for asylum in the United States and have their claim adjudicated on a case-by-case basis.

“We welcome any folks who are seeking asylum, and they should do that,” she said.

But Russians who have taken the U.S. up on that offer have quickly discovered that seeking asylum is not the same as winning it. The U.S. government’s willingness to help people who flee Russia — even if doing so undermines Russia’s war effort — is limited.

In some cases, the government has argued that being called up to serve in the Russian military is not alone sufficient grounds for asylum. Jennifer Scarborough, the lawyer for the three Russians The Times interviewed, has countered that they qualify for asylum because they did not want to be involved with the war for political reasons and would face unreasonable repercussions for refusing to serve.

“They could be deported back to a regime that is committing gross human rights violations,” she said. “I don’t understand how we are denying Russians at all.”

The number of Russians crossing the southern U.S. border surged in November and December, shortly after Putin, facing massive casualties among his troops, ordered up a fresh army mobilization and drafted up to 300,000 reservists.

Russians crossed the southern border more than 5,000 times in November and nearly 8,000 times in December, a major increase from earlier months.

More than 8 million Ukrainians have fled their homeland since Putin launched his invasion of the former Soviet Republic on Feb. 24, 2022. Their escapes have involved trains and commercial flights and massive assistance, and they have largely been welcomed in other countries.

By contrast, many of those fleeing Russia for the U.S. have used the same difficult and at times treacherous route that disfavored refugees from all over the world use. A flight from Dubai or Istanbul gets them to South America, where they continue on flights, buses and by foot northward, sometimes trekking through jungle, to reach Mexico and the U.S. border.

One man who spoke to The Times was picked up by immigration agents in December near Tecate. The man made the weeks-long journey to the U.S. with his younger brother.

The man fled Russia when his call-up notice arrived.

“Even in childhood, I understood that, for me, America was a symbol of freedom,” he said in a telephone interview from a detention center in Pennsylvania. “And yes, there was a dream to move here one day. Because during your entire life in Russia, it is difficult; you’re discriminated against at every turn.”

“I went through war,” the man said. “I know what this entails. I saw the war. And now they are trying to force me to bring this to Ukraine.”

. . . .

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

Read the complete report at the link.

Jenn Scarborough asks the right question. In a functioning protection system, one would expect most cases like this to be granted in short order. However, the BIA generally has restrictive precedents on draft evaders and deserters stemming largely from a desire to deny protection to applicants fleeing civil wars in Central America decades ago. See, e.g., Matter of A-G-, 19 I & N Dec. 502 (BIA 1987).

As “Courtsiders” know, the endemic problem is lack of expert, progressive, dynamic, courageous intellectual leadership in a system now solely controlled and operated by a Dem Administration that often acts more like an “old school GOP” one on immigration and human rights! Administration of both parties live in perpetual fear that making good on promises of fair treatment and legal protection would actually motivate refugees to seek it!

That’s a particular problem at EOIR which should be the legal intellectual leader here! We need practical, scholarly, generous, common sense precedents focusing on what should be easily grantable protection claims!

Instead, we have a leaderless, bureaucratic, non-expert mess, still retaining too many elements of the anti-immigrant, anti-asylum, any reason to deny, go along to get along, court as a “deterrent” system constructed and promoted by the Trump Administration. That has continued to churn out both egregious inconsistencies and backlog-building inefficiencies in critical “life or death” cases!

🇺🇸 Due Process Forever!

PWS

08-20-23

🏴‍☠️☠️⚰️💰 DECADES OF DEADLY FAILURE FAIL TO DIM PROFITS OF BORDER DETERRENCE GIMMICKS!

Border Death — Full coffins mean full coffers for the “border deterrence industry.” This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
To comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

Todd Miller reports for the BorderChronicle:

https://substack.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.w-bNM02eUaZHfY7ojKTD4aVI7br24RMUUozCM32pBPs?

When I first came across Cochrane International, the company that built the floating barrier deployed in Eagle Pass, Texas, I watched a demonstration the company gave with detached bemusement. I was at a gun range just outside San Antonio. It was 2017, three months after Donald Trump had been sworn in and the last day of that year’s Border Security Expo, the annual gathering of Department of Homeland Security’s top brass and hundreds of companies from the border industry. Among industry insiders, the optimism was high. With Trump’s wall rhetoric at a fever pitch, the money was in the bank.

All around me, all morning, Border Patrol agents were blasting away body-shaped cutouts in a gun competition. My ears were ringing, thanks in part to the concussion grenade I had launched—under the direction of an agent, but with great ineptitude—into an empty field as part of another hands-on demonstration. The first two days of the expo had been in the much-posher San Antonio convention center, where companies displayed their sophisticated camera systems, biometrics, and drones in a large exhibition hall. But here on the gun range we seemed to be on its raw edge.

So when a red truck with a camo-painted trailer showed up and announced its demonstration, it wasn’t too much of a surprise. The blasting bullets still echoed all around as if they would never cease. Two men jumped out of the truck wearing red shirts and khaki pants. They frantically ran around the camo trailer, like mice scurrying around a piece of cheese trying to figure out the proper angle of attack. Then the demo began. One of the men got back in the truck, and as it lurched forward, coiling razor wire began to spill out of its rear end as if it were having a bowel movement. As the truck moved forward, more and more of Cochrane’s Rapid Deployment Barrier spilled out until it extended the length of a football field or more. It was like a microwavable insta-wall, fast-food border enforcement.

Little did I know that six years later, this same company, Cochrane, would give us the floating barrier, with its wrecking ball–sized buoys connected side by side with circular saws. The floating barrier, as the Texas Standard put it, is the “centerpiece of Operation Lone Star,” Texas governor Greg Abbott’s $4.5 billion border enforcement plan. For this barrier, which has now been linked to the deaths of at least two people, the Texas Department of Public Safety awarded Cochrane an $850,000 contract.

. . . . .

When I first saw Cochrane back in 2017 among the ear-ringing gunfire on the last day of the Border Security Expo, I had a feeling I might see them again. No matter how ludicrous the rapid barrier deployment camo truck seemed to me then, there was, indeed, plenty of money to be made.

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

Money and profit over humanity, common sense, and the rule of law. Read the full article at the link.

🇺🇸 Due Process Forever!

PWS

0-19-23

🇺🇸⚖️🗽🧑‍⚖️ CONGRATULATIONS TO HON. KATHERINE E. (“KATE”) CLARK, NEWLY APPOINTED APPELLATE JUDGE AT THE BIA: Practical Scholar, Legacy Arlington Immigration Court Intern Alum, Former EOIR JLC, Georgetown Law Grad, AYUDA Supervisor, Hill Staffer, Civil Servant, Judge Clark’s Broad Background Appears “Just What The Doctor Ordered” For Failing & Flailing “Supreme Court of Immigration!”😎

Hon. Katherine E. Clark — Honorable Katherine E. Clark
Appellate Immigration Judge & Board Member
U.S. Board of Immigration Appeals
PHOTO: AYUDA website

Here’s the EOIR press release:

https://www.justice.gov/eoir/page/file/1593116/download

EOIR Announces New Appellate Immigration Judge

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katharine E. Clark as a Board Member of EOIR’s Board of Immigration Appeals (BIA).

The BIA is the highest administrative body for interpreting and applying immigration laws, having nationwide jurisdiction to hear appeals of decisions by adjudicators, including Immigration Judges.

Biographical information follows:

Katharine E. Clark, Appellate Immigration Judge

Attorney General Merrick Garland appointed Katharine E. Clark as an Appellate Immigration Judge in August 2023. Judge Clark earned a Bachelor of Arts, magna cum laude, in 2003 from Brown University and a Juris Doctorate in 2006 from Georgetown University Law Center. From 2022 to 2023, and 2007 to 2018, she served as a senior litigation counsel and trial attorney at the Office of Immigration Litigation, Civil Division, Department of Justice. From 2019 to 2021, she was a managing attorney at Ayuda in Silver Spring, Maryland, where she also handled cases on a pro bono basis. From 2018 to 2019, she was counsel for the U.S. Senate Judiciary Committee. From 2006 to 2007, she served as a Judicial Law Clerk at the Boston Immigration Court, entering on duty through the Attorney General’s Honors Program. Judge Clark is a member of the Maryland State Bar and the Pennsylvania State Bar.

— EOIR —

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

Proud to say Judge Clark is a graduate of not only Georgetown Law (where I am an Adjunct), but one of many distinguished alums of the Legacy Arlington Immigraton Court Internship Program, established by my good friend and colleague Retired U.S. Immigraton Judge Mario Christopher Grant. I later inherited the “Mentor Judge” position upon Judge Grant’s retirement. Judge Clark is the first, hopefully of many, of those we mentored to be appointed to the BIA.

I am also a member of the Advisory Board at AYUDA, where Judge Clark worked as a supervisory attorney from 2019-21.

Judge Clark’s experiences give her an exceptionally broad, varied perspective. She has seen the system from the inside, at EOIR, as an NGO advocate assisting those struggling to deal with EOIR’s dysfunction and institutional unfairness, as an OIL attorney defending EOIR’s work, and as a legislative aide attempting to address the system’s many shortcomings.

She is well positioned to help the BIA and EOIR move beyond the flawed decision-making, unrealistic guidance, and backlog-building “Aimless Docket Reshuffling” that has plagued the Immigration Court System over the past two decades. Hopefully she will be a force in returning EOIR to it’s proper (though long-abandoned) vision of: Through teamwork and innovation, becoming the world’s best administrative tribunals, guaranteeing fairness and due process for all!

It’s far away from that now! But, there are some judges at EOIR like Judge Clark qualified and capable of leading a “due process renaissance” at the beleaguered tribunals. Whether and to what extent they will be able to do so remains to be seen.

Congratulations again and good luck to Judge Clark!

🇺🇸 Due Process Forever!

PWS

08-16-23

☠️👎🏼 ANOTHER SUPER-SHODDY PERFORMANCE BY BIA ON CENTRAL AMERICAN ASYLUM OUTED BY 9TH CIR. — Reyes-Corado v. Garland

Four Horsemen — BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house?
Albrecht Dürer, Public domain, via Wikimedia Commons

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/11/18-70225.pdf

SUMMARY** Immigration

The panel granted a petition for review of the Board of Immigration Appeals’ denial of Francisco Reyes-Corado’s motion to reopen removal proceedings based on changed circumstances, and remanded.

The Board denied reopening based, in part, on Reyes- Corado’s failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corado’s failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.

The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncle’s family members to discourage him from avenging his father’s murder by his uncle’s family. The Board previously concluded that personal retribution, rather than a protected

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

REYES-CORADO V. GARLAND 3

ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.

As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corado’s claims for relief because they rebutted the agency’s previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Board’s previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corado’s family against his uncle’s family for at least fourteen years after Reyes-Corado’s father’s murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corado’s evidence was not qualitatively different than the evidence at his original hearing.

The panel also declined to uphold the Board’s determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corado’s new evidence likely undermined the Board’s prior nexus finding, and the Board applied the improperly high “one central reason” nexus standard to Reyes-Corado’s withholding of removal claim, rather than the less demanding “a reason” standard.

4 REYES-CORADO V. GARLAND

The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.

COUNSEL

David A. Schlesinger

(argued), Kai Medeiros, and Paulina

Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.

Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.

OPINION

KOH, Circuit Judge:

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

Congrats to David A. Schlesinger & colleagues!

I’ve often discussed EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.

There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?

This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”

Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!

Lots of “talk,” not much “walk” from Dems!

🇺🇸 Due Process Forever!

PWS

08-15-23

⚖️ I DISSENT FROM BIA’S (NON) GUIDANCE ON “UNDER COLOR OF LAW” FOR THOSE WHO SUFFERED TORTURE BY GOVERNMENT OFFICIALS IN MATTER OF J-G-R-, 23 I &N DEC. 733 (BIA 2023)

Star Chamber Justice — Unless you work at Merrick “Garland’s BIA, it would be reasonable to assume that torture by government officials is “under color of law!”

https://www.justice.gov/eoir/page/file/1592801/download

BIA HEADNOTE:

(1) Torturous conduct committed by a public official who is “acting in an official capacity,” meaning acting under color of law, is covered by the regulations implementing the Convention Against Torture, but such conduct by an official who is not acting in an official capacity is not covered. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020), followed.

(2) The key consideration in determining if an official’s torturous conduct was undertaken “in an official capacity” for purposes of CAT eligibility is whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government.

FOR THE RESPONDENT: Ethan R. Horowitz, Esquire, Lawrence, Massachusetts

BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; CREPPY and HUNSUCKER; Appellate Immigration Judges.

MALPHRUS, Deputy Chief Appellate Immigration Judge:

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

SCHMIDT, RETIRED JUDGE OF THE ROUND TABLE, DISSENTING:

I dissent.

A far fairer, more logical, efficient, and uniformity-promoting solution is staring us in the face: An applicant who credibly establishes torture by a public official or officials should be entitled to a rebuttable presumption that the torture was inflicted “under color of law.” The DHS should then be required to establish by a preponderance of evidence that the official was acting in another capacity if it wishes to contest that presumption.

The information and evidence that might overcome a logical presumption that government officials act “under color of law” is much more likely to be available to the DHS than to the applicant. This is particularly true in the many cases where CAT applicants are detained, unrepresented, or both.

This rebuttable presumption would also, as a practical matter, close the gap between our interpretation and the rule in the Ninth Circuit which wisely recognizes no exceptions when torture is inflicted by government officials. See, e.g., Barajas-Romero v. Lynch, 846 F.3d 351, 362 (9th Cir. 2017).

In adjudicating claims from individuals who have already suffered torture at the hands of government officials we must err on the side of protection, not rejection. The panel’s mushy guidance amounts to no practical guidance at all. It will certainly result in conflicting results, increased trial times and backlogs, arbitrary denials, and violations of due process. More backlog-promoting, avoidable Circuit Court remands are sure to follow.

Consequently, I dissent.

🇺🇸 Due Process Forever!

PWS

08-14-23

🇺🇸⚖️🗽 ANDREA R. FLORES @ NYT: We Know That “Uber Deterrence” Fails At The Border — Title 42 Debacle Under Trump Proves It: Biden Must Abandon The Restrictionist Remnants & Restore Legality & Integrity To Our Current Refugee & Asylum Systems!

Andrea Flores
Vice President for Immigration Policy and Campaigns at FWD.us.
PHOTO: Linkedin

https://nl.nytimes.com/f/newsletter/H7Demr4HzkuwqSIi_5Cg4g~~/AAAAAQA~/RgRmt1VqP0TpaHR0cHM6Ly93d3cubnl0aW1lcy5jb20vMjAyMy8wOC8xMC9vcGluaW9uL2FzeWx1bS1zZWVrZXJzLWltbWlncmF0aW9uLXJlZm9ybS5odG1sP2NhbXBhaWduX2lkPTM5JmVtYz1lZGl0X3R5XzIwMjMwODEwJmluc3RhbmNlX2lkPTk5NzE5Jm5sPW9waW5pb24tdG9kYXkmcmVnaV9pZD03OTIxMzg4NiZzZWdtZW50X2lkPTE0MTYxOCZ0ZT0xJnVzZXJfaWQ9OGExZjQ3Mzc0MGIyNTNkOGZhNGMyM2IwNjY3MjI3MzdXA255dEIKZNNq0NRk4LcZOlISamVubmluZ3MxMkBhb2wuY29tWAQAAAAD

Andrea writes in a NYT Op-Ed:

U.S. asylum laws were designed to protect people fleeing harm. They were enacted in the decades following the Holocaust to ensure that the United States never again turned away people fleeing persecution. But now, many blame these laws for the chaos and inhumanity at the nation’s southern border.

The biggest blow to America’s commitment to asylum came during the pandemic, when former President Donald Trump invoked Title 42, an emergency measure that allowed border agents to turn away asylum seekers, under the justification of preventing the spread of the virus.

When Title 42 restrictions were lifted in May, President Biden enacted a carrot-and-stick approach aimed at deterring new asylum seekers from traveling by foot to the border. These new measures included a set of legal pathways, including a parole program that allows people from select countries, including Cuba and Haiti, to legally enter the country for at least two years, provided they have a financial sponsor in the United States. Doing so has discouraged would-be migrants from taking a dangerous trek with a smuggler, often through multiple continents.

This approach would have been a great step forward if it wasn’t paired with a counter measure that prohibits some asylum-seekers at the border from applying for protection in the United States. The vast majority of migrants must secure an appointment at an official port of entry, which are difficult to obtain, or else they will be subject to expedited removal if they cannot prove that they sought legal protection in another country along the way.

. . . .

If proponents of a secure border are serious about lowering border crossing numbers and decreasing unauthorized migration, they should support Mr. Biden’s attempts to create new legal pathways. Instead, a coalition of Republican attorneys general is challenging the president’s parole program. In Congress, Senate Republicans are trying to eliminate the same parole authority that allowed Afghans to temporarily resettle in the United States. There have been no challenges to the use of the parole authority to bring Ukrainians to the United States.

These actions reveal that our current fight over the border is not about the number of people trying to come here — it is about which should be allowed to come. American voters may not have strong opinions about the future of the asylum system or the legal pathways being created, but voters of both parties dislike the chaos and human suffering that have subsumed this issue for the past 10 years. Over a million American citizens have signed up to sponsor migrants from Cuba, Haiti, Venezuela and Nicaragua.

At a moment of record global displacement, we can’t keep waiting for Congress to modernize our immigration laws. Safe legal pathways are good for the people who use our immigration system. Mr. Biden has taken some critical steps to give migrants better options, but with no hope of congressional action in the near future, more is needed.

Andrea R. Flores is the vice president for immigration policy and campaigns at FWD.us.

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

Read the complete op-ed at the link.

Much of what Andrea says echoes what I have said over and over on Courtside and has been repeatedly recommended by experts, who are then largely ignored by the Biden Administration.

As I have argued before, the “low hanging fruit” here would be EOIR reform: A new BIA of “practical scholars;” better IJs with proven asylum and human rights experience; ending “Aimless Docket Reshuffling On Steroids” (which drives many poor policy and legal decisions); and getting some dynamic, fearless, expert leadership on human rights and immigration at the DOJ — which is either the driver or the facilitator of many of the problems at the border, depending on how you look at it.

We can also see how Garland’s lackluster performance on immigration affects other areas of justice such as civil rights, women’s rights, and LGBTQ rights, to name a few of the most obvious ones. Nobody at today’s DOJ appears to possess the “big picture” knowledge and experience to “connect the dots” on these critical issues.

🇺🇸 Due Process Forever

PWS

08-10-23

🇺🇸⚖️🗽 GW IMMIGRATION CLINIC STUDENTS SAVE ANOTHER LIFE!😎 — “[He] clicked the trigger of the gun, which made a sound, but did not fire a bullet.”

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera

Professor Alberto Benítez reports:

This past Wednesday, August 2, Immigration Judge (IJ) Dinesh Verma of the Hyattsville Immigration Court granted asylum to Immigration Clinic clients R-R- and her 17-year-old son, D-R-. R-R- and D-R- have been Clinic clients since 2019 and their asylum applications were filed that year with the assistance of the Clinic. Their merits hearing was originally scheduled for 2020, but was postponed until this past Wednesday due to the pandemic. They were represented at their hearing by Immigration Clinic summer intern Brennan Eppinger, a rising 2L.

R-R- and D-R- fled Honduras after R-R- stood up to a gang member who was trying to recruit her son, D-R-, to transport drugs. D-R- was 11 years old at the time. The gang member later broke into their home, put a gun to R-R- ‘s head, asked R-R- if she had ever played Russian roulette, and the quote in the subject line is what happened next. R-R- and D-R- sought safety in the United States shortly after.

Please join me and Professor Vera in congratulating Navil Infante, Alex North, Rachel Kidd and Jasmine Elsmasry, who all worked on the case. IJ Verma is a GW Law alum and was a student in my Immigration Law I class in 1997. Brennan noted this fact on the record but the IJ (who did remember me) and the ICE trial attorney waived any conflict issue.

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

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…

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

Many congrats to all involved!

Interestingly, I used the “Russian Roulette analogy” yesterday in referring to AG Merrick Garland’s dismissive attitude toward the outrageous inconsistencies and abuses in his EOIR asylum adjudications.

⚖️☠️ BLOWING THE BASICS! — IJ Misapplies “Under Color Of Law Doctrine” In CAT Case; BIA Affirms; 10th Circuit Reverses, Blowing Away Garland DOJ’s BS “No Jurisdiction” Argument In The Process — “[The IJ’s] interpretation defies logic and the law.” — We Deserve Much Better From Dem AG!

This is a wonderful, inspiring result, produced by great student lawyering, a thoughtful IJ, and an ICE ACC with a sense of justice and practicality. It should be the rule, not the exception, in EOIR asylum adjudication! But, sadly, it isn’t!

Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

I virtually guarantee that if this case had been adjudicated at the border, in detention, and/or on one of Garland’s “expedited/dedicated” dockets, the result would have been unfavorable. And, depending on the circumstances, it’s not even clear that an applicant with this type of very grantable claim would have access to the asylum adjudication system under Biden’s “enjoined but stayed transit rules!” See, e.g., https://twitter.com/Haleaziz (A “temporary win” for the Biden Administration, engineered by two 9th Cir. Dem judicial appointees, is a big loss for humanity and the rule of law, defended only by dissenting Trump appointee, Judge VanDyke, a result that should leave advocates scratching their heads about their place in today’s mushy Dem Party.)

Cases like this illustrate how the EOIR system could be run in a fair, efficient, professional, and properly humane manner! But, they don’t answer the question of why isn’t set up to run that way in every case under Garland!

Also, and quite perversely, the failure of the Biden system to produce fair and equitable results at the border puts a premium on individuals who can avoid border processing and get to the interior (the exact opposite of the result Biden claims to be trying to achieve)!

This is a totally screwed up system being “administered” by a Dem Administration that sorely lacks both courage and a clear vision of how to insure that asylum seekers and other immigrants, particularly those of color, receive due process and justice in America!

🇺🇸Due Process Forever!

PWS

08-04-23

⚖️☠️ BLOWING THE BASICS! — IJ Misapplies “Under Color Of Law Doctrine” In CAT Case; BIA Affirms; 10th Circuit Reverses, Blowing Away Garland DOJ’s BS “No Jurisdiction” Argument In The Process — “[The IJ’s] interpretation defies logic and the law.” — We Deserve Much Better From Dem AG!

Laura Lunn, Esquire
Director of Advocacy & Litigation
Rocky Mountain Immigrant Advocacy Network (“RMIAN”)
PHOTO: RMIAN

Colorado AILA reports:

From: ColoradoAILA@groups.io <ColoradoAILA@groups.io> on behalf of Aaron Hall via groups.io <aaron=immigrationissues.com@groups.io>
Sent: Tuesday, August 1, 2023 2:29 PM
To: ColoradoAILA@groups.io <ColoradoAILA@groups.io>
Subject: [ColoradoAILA] Arostegui-Maldonado v. Garland

A HUGE congratulations to RMIAN and Laura Lunn on today’s 10^th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.

Incredible work to Laura and all others involved!

Please note that you can contact your attorney and paralegal at their direct phone lines. For all future phone communications, please contact us directly instead of using the main phone number. Our direct phone lines are listed at the bottom of our emails, located in our signature blocks.

Aaron C. Hall

Senior Partner

Pronouns: he/him/his

12203 East Second Avenue

Aurora, CO 80011

Direct: 303.962.6630

www.immigrationissues.com

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

Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!

After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.

There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!

It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”

In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”

🇺🇸 Due Process Forever!

PWS

08-03-23

🤯 INCREDIBLE! — 2d Cir. Schools EOIR On Adverse Credibility — Chen v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca2.uscourts.gov/decisions/isysquery/58f9e14a-e986-4263-9590-1f525ff8d4f9/2/doc/19-715_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-credibility-chen-v-garland

“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”

[Hats off to Gary Yerman!]

Gary Yerman, Esquire
Managing Partner
The Yerman Group
NY, NY

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

My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.”

But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?

Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!

As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.”

I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.

Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!

That’s why it is critical to have individuals effectively represented at the trial level! At each level thereafter, the law skews heavily in favor of the Government!

That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!

It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!

That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR!

Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance?

It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!

🇺🇸 Due Process Forever!

PWS

08-01-23

🇺🇸🗽⚖️👍🏼😎 CONGRATS TO GW LAW IMMIGRATION CLINIC ON “WIRE TO WIRE” SUCCESS!📣

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera — They have dedicated their professional careers to teaching skills and values that change lives and advance a vision of a better future America!

Professor Alberto Benítez reports to Courtside:

Victory is the only option!

A shout-out to our student-attorneys Julia Yang, Spoorthi Datla, Cornelia Waugh, and Kelly Zhang. Yesterday our client S-L, from China, Kelly, and Paulina Vera attended an interview at USCIS. The client is a survivor of domestic violence and we had filed several applications on her behalf, including one for naturalization. Today all the applications were granted. S-L’s oath ceremony will be scheduled.

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

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…

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

Many, many congrats to all involved!

Given the endemic delays at every level of the dysfunctional USG immigration bureaucracy, seeing a case through from the initial application to eventual naturalization is no mean feat!😎 THIS, NOT the total disgraceful BS emanating from Trump, DeSantis, Abbott, and the rest of the GOP xenophobes, is what the REAL “American Dream” is all about and what REALLY “Makes America Great” — NOT totally disingenuous slogans and “throwaway lines” from those afraid to embrace and celebrate the REAL America!🇺🇸

The future of American immigration advocacy looks promising, notwithstanding the incredibly dark visions being falsely promoted by GOP restrictionists and the disturbingly feeble response from the Biden Administration and Dems in Congress. The talent in the “New Generation” of the NDPA continues to grow thanks to the inspiration and tutelage of Professors Benitez and Vera and many others like them who have dedicated their lives to making things better for everyone!

As a result, there is a rapidly expanding talent gap between the NDPA and the sluggish, unresponsive, “go along to get along” USG immigration bureaucracy — right up to the White House where so-called “policy makers” fear standing up for the rule of law and American values! Getting the talent from the “outside” to the “inside” where they can solve problems and advance progressive, practical American values is the challenge that will determine the future of our democracy!

🇺🇸 Due Process Forever!

PWS

07-31-23

⚖️ LAW YOU CAN USE! — 1st Cir. & Hon. “Sir Jeffrey” Chase Combine To Provide Expert Guidance On How To Handle BIA’s Inexpert Treatment Of Experts! 👍🏼

https://www.jeffreyschase.com/blog/2023/7/28/expert-guidance-from-the-first-circuit-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Expert Guidance from the First Circuit

For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable.

However, Immigration Judges are provided remarkably little guidance on how to assess expert testimony. A 2020 decision of the U.S. Court of Appeals for the Ninth Circuit, Castillo v. Barr,1 illustrates the problem. In that case, both the Immigration Judge and the BIA chose to discount the testimony of a qualified country expert because his testimony was not corroborated by other evidence of record. As the Ninth Circuit noted, “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”2 Obviously, this simple, logical rule should have been incorporated in a BIA precedent decision by now.

When attorneys SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire brought an appeal involving this issue with the U.S. Court of Appeals for the First Circuit, our Round Table of Former Immigration Judges was most happy to file an amicus brief in the matter. We used the opportunity to inform the court “how IJs and the BIA need, and lack, a clear standard for whether to admit—and how to weigh— expert evidence.”

Although the court issued an unpublished decision (and explained why it was precluded by Supreme Court precedent from establishing the uniform standard that we had requested), I believe the opinion offers wisdom on the topic that Immigration Judges might find useful in spite of its nonbinding nature. The case name is G.P. v. Garland, No. 21-2002 (1st Cir., July 13, 2023).

Rather than review the entire decision, in the hope of increased convenience, I have instead listed the issues raised in the case that are likely to arise in removal proceedings, and then summarized how the First Circuit addressed each issue.

The recency of the expert’s knowledge:

May an Immigration Judge discount an expert’s country knowledge as “stale” due to the passage of time since the expert’s last visit to the country in question or contact with its government’s officials?

In G.P., the court found no support for such approach where: (1) the record contained no evidence of changed conditions over the period of time in question; (2) the expert testified to the lack of significant changes in country conditions over that same time period; (3) such testimony regarding the lack of significant change went unchallenged by ICE, which did not call its own expert or offer other country evidence to the contrary; and (4) the conclusion was not contradicted by the petitioner.

The basis of the expert’s knowledge

Can an expert’s testimony be discounted for lack of firsthand “knowledge, research, or connections” to the country in question?

In G.P., the court pointed to the BIA’s own precedent decision in Matter of J-G-T- in which the Board adopted the Federal Rules of Evidence standard that an expert’s testimony is reliable when it is “`based on sufficient facts or data’ that the expert `has been made aware of or personally observed’ or from sources that `experts in the particular field would reasonably rely on.'”3

In addition to finding that the IJ had overlooked sources of firsthand knowledge, the court in G.P. found further error in the IJ’s failure to either mention or explain why sources that experts in the field would rely on that were mentioned by the expert in his voir dire, which included crime rates, DEA reports, and U.S. Department of State Country Reports, were not sufficient to credit the expert’s testimony.

The expert’s lack of personal knowledge of a specific criminal organization

Can an expert’s testimony be discredited where the expert lacked personal knowledge of the specific criminal organization that the applicant fears?

In G.P., the court found that the IJ erred in discounting the expert’s testimony for this reason. The court again referenced the Board’s statement in J-G-T- quoted above, and cited another BIA precedent, Matter of Vides Casanova, in which the Board held that an expert “need not have personal knowledge of the facts underlying” their opinion.4

Applying the above BIA guidance, the court observed that the expert witness learned specifics about the organization in question from reading the respondent’s affidavit, and importantly, that the facts contained in the respondent’s testimony and later testified to in court “were never challenged by the government or questioned by the IJ, who found G.P. credible.” The court added that “An expert cannot be ‘undermined by his reliance on facts . . . that have not been disputed’” (quoting from the Ninth Circuit’s decision in Castillo, supra at 1284).

The feared persecutors are based outside of the country of expertise

Can an expert’s testimony about a crime group based in the U.S. be discredited where the witness was qualified as an expert on organized crime in the Dominican Republic?

In G.P., although the group in question was based in New England, connected to a cartel based in Sinaloa, Mexico, and “served as a conduit between the Mexican drug cartels and customers in Northern New England,” the group did not fall outside of the witness’s area of expertise (i.e. organized crime in the Dominican Republic) where the expert testified to the Sinaloa Cartel’s strong presence in the Dominican Republic, influence over government officials there, and treatment of government cooperators.” The court therefore found that the IJ’s statement that the expert lacked direct knowledge of the criminal organization “mischaracterizes the evidence as a whole” and was not supported by substantial evidence of record.

Prior statements of the expert

How should a prior statement of the expert that is offered by ICE be treated by the IJ?

In G.P., ICE introduced a quote from the expert’s 2011 book in which he wrote that he “couldn’t honestly say that torture is something deportees [to the Dominican Republic] should expect.”

However, the First Circuit found error in the IJ’s reliance on the quote, because (1) the quote was in the context of an entirely different set of facts and employed a highly narrow definition of torture; (2) the expert was only asked whether he recalled the quote and to provide its context, and not whether he agreed with it; (3) the quote addressed the general risk of torture faced by deported noncitizens, and not the specific risk faced by G.P.; and (4) the IJ failed to explain why the 2011 book deserved significant weight when it was older than other evidence the IJ found to be stale.

Conclusion

Petitioner’s counsel has moved the First Circuit to publish the decision. But regardless of the outcome, counsel may wish to bring the court’s analysis to the attention of Immigration Judges, who in turn may find it highly useful in navigating the treatment of experts in cases before them.

– –

Hats off to SangYeob Kim and Gilles Bissonnette on their outstanding litigation in the First Circuit, which led to this satisfying decision. Our Round Table is most thankful to attorneys Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Greg Merchant of the law firm of Cooley LLP, for their expert drafting of our amicus brief in this case.

Copyright 2023 by Jeffrey S. Chase. All Rights Reserved.

Notes

980 F.3d 1278 (9th Cir. 2020).

Id. at 1284.

Matter of J-G-T-, 28 I&N Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703).

Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015). Interestingly, in VIdes Casanova, the country expert had been called by DHS to establish that the respondent was a persecutor of others. Under those circumstances, the BIA in its decision noted that an expert “is permitted to base her opinion on hearsay evidence and need not have personal knowledge of the facts underlying those opinions.”

JULY 28, 2023

Republished with permission

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

The BIA spends far too much time cooking up bogus ways to deny asylum and other forms of protection. This leaves a “vacuum” on providing sound advice and needed guidance for effectively presenting and fairly analyzing the large untapped potential for more grants of protection currently “bouncing around the EOIR backlog” or alternatively being mindlessly rushed through “dedicated deterrence dockets” with neither time for advocates to properly prepare nor opportunity for thoughtful analysis by IJs! It’s a real (totally preventable) “lose-lose” for our justice system and asylum applicants!

Fortunately those from outside EOIR, including Article III Judges, subject matter experts like Judge Sir Jeffrey, and his loyal colleagues in the Round Table 🛡 have stepped in to fill the void. Wouldn’t it be better (and easier) to just aggressively recruit and hire the right expert, experienced, due-process-focused candidates for EOIR judgeships in the first place?

🇺🇸 Due Process Forever!

PWS

07-30-23

⚖️🗽 TRIPLE HEADER! — Cornell Immigration Clinic Wins 3 @ BIA!

Professor Stephen Yale-Loehr reports:

Paul: Thanks to the excellent work of our law students, our Cornell asylum clinic received three BIA remands this spring.  A short summary of each case follows.  A longer summary of each case is attached, as well as redacted versions of the BIA’s decisions. If anyone wants redacted copies of our briefs, have them contact me directly.

Please mention on Immigration Courtside. Thanks, Steve

1: IES is a citizen of Mexico and a former gang member.  The immigration judge (IJ) denied withholding and CAT relief, holding that his conviction in California was a particularly serious crime and that our client did not meet the requirements for CAT relief. For the particularly serious crime argument, our brief argued that the IJ improperly analyzed IES’ offense, ignored credible evidence that the drugs were for personal use, and relied on boilerplate sentencing documents instead. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense. We used case law where crimes like sexual contact with a minor (Afridi v. Gonzalez) and strangulation (Flores-Vega v. Barr) were remanded because the facts and circumstances of the offense had not been considered.

For our CAT argument, we focused on 6 IJ errors: 1) the IJ did not consider that his prolonged mental pain would cause future torture (we had psychological evaluation reports and decided to use them for this argument). This is an underutilized argument in CAT claims, so there isn’t much case law. We used the interpretation from an OLC opinion on prolonged mental harm to bolster this argument. 2) The IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%. 3) The IJ did not consider country conditions and did not admit 400 pages into evidence. 4) The IJ mischaracterized his attempts to flee cartels 8 times as “relocation.” 5) The IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’ complaints. 6) The IJ did not aggregate IES’ risk of torture. The BIA remanded.

2: LRG is a citizen of El Salvador who fled to the US in 1989.  While in the US he joined the MS-13 gang. He is in U.S. prison for a criminal conviction. The IJ denied withholding and CAT relief. Our client’s info was part of the November 2022 ICE data leak, but the IJ did not address that concern.

Our brief argued that our client is more likely than not to face torture if removed to El Salvador. We posited several theories under which our client is likely to be tortured: 1) by the Salvadoran government, especially if our client is incarcerated there; 2) by Salvadoran gangs, in or out of prison, with the acquiescence of the Salvadoran government; and/or 3) by Salvadoran anti-gang death squads, with the participation or acquiescence of the Salvadoran government. We argued that our client’s identifying characteristics, including his gang tattoos and criminal history, would subject him to targeting and torture by any of these groups. We also argued that the IJ insufficiently aggregated our client’s risk of torture in El Salvador and that the IJ erred by failing to consider the impact of the ICE data leak on our client.  Finally, we argued that the IJ afforded insufficient weight to the evidence offered by our client. The IJ admitted Dr. Patrick McNamara’s universal expert declaration only as background evidence, rather than for his expert opinions. The BIA remanded.

3: REC is a citizen of El Salvador who fled to the US in 2022.  REC was not a gang member, but his brother was, and was killed by the police.  REC’s family filed a lawsuit against the police for murdering REC’s brother, and the police retaliated against REC.  The IJ denied asylum, withholding, and CAT relief.

On asylum and withholding, we argued that the IJ erred by ignoring the Salvadoran government as a persecutor of REC and by failing to assess the proper particular social group that REC had proposed, based on his membership in his family. On CAT, we argued that the IJ effectively ignored part of REC’s claim by failing to analyze whether the MS gang would be more likely than not to torture him. We further argued that the IJ’s analysis about the Salvadoran government as a torturer of REC was flawed because the IJ herself found that Salvadoran officials “misused their power” when they beat him. We argued that the IJ also erred because she did not aggregate all potential sources of torture, including the government and the MS gang. The BIA remanded.

Stephen Yale-Loehr

Professor of Immigration Law Practice, Cornell Law School

Faculty Director, Immigration Law and Policy Program

Faculty Fellow, Migrations Initiative

Co-director, Asylum Appeals Clinic

Co-Author, Immigration Law & Procedure Treatise

Of Counsel, Miller Mayer

Phone: 607-379-9707

e-mail: SWY1@cornell.edu

Twitter: @syaleloehr

Check out my Green Card Stories book:

http://www.greencardstories.com.

See more of my books at amazon.com/author/stephenyaleloehr

You can access my papers on SSRN at: http://ssrn.com/author=109503

Cornell 1 Cornell 2 Cornell 3 Cornell 4 Cornell 5 Cornell 6

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

Get all the details in the six attachments above!

Thanks, Steve! And, congrats and “hats way off” (as my friend Dan Kowalski would say) to the clinic students involved!

Interesting to contrast the careful work of the clinic with the sloppy, result-oriented work of the IJs in these cases.

🇺🇸 Due Process Forever!

PWS

07-29-23

🏴‍☠️ ADMINISTRATIONS CHANGE, BUT SCOFFLAW MISTREATMENT OF ASYLUM SEEKERS DOESN’T — US District Judge Jon S. Tigar Blows Away 💨 Biden Administration’s Bogus Asylum Rules — Again! — Round Table 🛡⚔️ Weighs In On Winning Side — Again! — Order Delayed Pending Filing of Appeal, So The Carnage Continues for Now!☠️

EBSC III MSJ order

Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.

District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.

From Judge Tigar’s order:

“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…

The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

The order is stayed for 14 days to allow the government to appeal.

Our group has once again helped make a difference in providing fairness and due process. Congrats to all.

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

Congrats to the plaintiffs and to my Round Table colleagues!

This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it.

Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?

How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:

While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.

See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16

16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).

Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!” Why is it coming from a Dem AG?

🇺🇸Due Process Forever!

PWS

07-25-23

👎🏼 EOIR’S 3-DECADE QUEST TO DENY PROTECTION TO COPTIC CHRISTIAN ENDS BADLY IN 3RD CIR. — BIA Applies “Overly Rigorous Standard” & Fails To Recognize A Prima Facie Case For Asylum In Latest Blow To DOJ’s “Asylum Wrecking Crew!” 🏴‍☠️

https://www2.ca3.uscourts.gov/opinarch/212957np.pdf

Gebra v. A.G., 3d Cir, 07-19-23, unpublished (unfortunately)

PANEL: AMBRO, RESTREPO, FUENTES, Circuit Judges

OPINION: JUDGE RESTRO

KEY QUOTE:

i. The BIA applied an overly rigorous standard to the new evidence.

Gebra argues that the BIA applied an “overly rigorous standard” when analyzing the new evidence presented when determining whether he established a new claim. Pet’r Br. 44 (citing Tilija v. U.S. Att’y Gen., 930 F.3d 165 (3d Cir. 2019)). In Tilija, we held that unless the new evidence is inherently unbelievable, it must be taken as true. 930 F.3d at 172; see also Shardar, 503 F.3d at 313 (“Facts presented in the motion to reopen

are ‘accepted as true unless inherently unbelievable.’”) (cleaned up). If the BIA fails to accept new evidence as true, then it applies an “overly rigorous standard.” Tilija, 930 F.3d at 172. Furthermore, not accepting such evidence as true is an abuse of discretion if the petitioner would have established a prima facie case for eligibility with the rejected evidence. Id. (citing Shardar, 503 F.3d at 313).

Here, the BIA did not find that the new evidence was inherently unbelievable but nevertheless refused to accept new evidence, such as Gebra’s medical report after the 2009 attack, as “persuasive” or true because it “provide[d] little specificity or detail with respect to the alleged attack.” JA4; cf. Tilija; 930 F.3d at 172 (finding that where the BIA asked for “more details” and questioned the veracity of the evidence, it impermissibly failed to accept the evidence as true). By requesting that the medical record, on its own,

corroborate that the injuries were caused by “Islamic fanatics,” the BIA imposed an

overly rigorous standard. JA4; Tilija, 930 F.3d at 172. Similarly, the BIA’s conclusion that the report from the Egyptian Union of Human Rights Organization (“EUHRO”) pro- vides “no details” with respect to when, where, how, nor “any other details surrounding the circumstances of the alleged incident,” was an abuse of discretion. JA4; Tilija, 930

11

F.3d at 172. The BIA treated the new evidence with the same “overly vigorous standard” that it applied to the new translation of the 1993 police report that was previously dis- credited.

Having concluded that the BIA held Gebra to an excessively rigorous standard, we next determine whether Gebra established a prima facie case for asylum.

ii. Gebra’s new evidence established a prima facie case for asylum.

Gebra’s new evidence, accepted as true, establishes a prima facie case for asylum. A motion to reopen an asylum case must establish prima facie eligibility for relief. Se- voian v. Ashcroft, 290 F.3d 166, 173, 170–71 (3d Cir. 2002). This standard requires an applicant to produce objective evidence that shows a “reasonable likelihood” that they can establish eligibility for relief. Id. at 173. In this context, to “establish” means that the evidence in favor of asylum outweighs the evidence against. Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004), as amended (Dec. 3, 2004). A “reasonable likelihood” merely means showing a realistic chance that the applicant can later establish that asylum should be granted. Id. Prima facie “would lack meaning” if it required that evidence submitted at the prima facie stage conclusively establish eligibility for asylum. Id. Thus, Gebra need only provide objective evidence that shows a reasonable likelihood that he is

entitled to asylum relief. Tilija, 930 F.3d at 172. Specifically, Gebra would need to

demonstrate that he suffered past persecution, or has a well-founded fear of future perse- cution, on account of his religious beliefs. 8 U.S.C. § 1158(b)(1)(B) (enumerating reli- gion as a protected ground).

12

Here, Gebra provided objective evidence in the form of medical records and hu- man rights reports regarding his 2009 attack. For example, a December 8, 2009, medical report from Victoria Hospital in Egypt corroborates the statement in his affirmation that, due to the attack, he was “wounded and sent into the Victoria Hospital due to multiple contusions and dermal bleeding on [his] back and different parts of [his] body.” JA167, 175; see Doe v. U.S. Att’y Gen., 956 F.3d 135, 145 (3d Cir. 2020) (holding that a single

beating, “if sufficiently egregious,” may constitute persecution, such as where petitioner was beaten by a mob, causing him to bleed and suffer injuries to his head and back). Ge- bra also included medical reports of the psychological trauma he experienced and therapy sessions he attended as a result of the attacks. Doe, 956 F.3d at 145–46 (“Persecution may be emotional or psychological, as well as physical.”) (citation omitted). Further- more, the December 30, 2009, report from EUHRO stated that they independently “veri- fied” Gebra was “attacked by some [Islamic] fanatics” who thought Gebra was behind demonstrations for the rights of Coptic Christians due to his work as a cameraman for Fa- ther Zacharia Botros, a Coptic Christian priest known for critiquing Islam. JA173.

Taken together, this evidence demonstrates a reasonable likelihood that Gebra could es- tablish he was persecuted due to his religious beliefs.

In sum, the BIA abused its discretion when it did not accept Gebra’s evidence ask true and concluded that he did not establish a new claim for asylum in his third motion to reopen.

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

Let’s apply a tiny bit of common sense here, in contravention of the BIA’s current practices. How likely is it that a guy would pursue asylum claims for 30 years, even after being denied, deported, and actually persecuted in Egypt upon return, if there weren’t some merit in the claim? At least enough to earn him a new hearing! It’s not rocket science to know that Coptic Christians often face persecution in Egypt! Was it really wise to push this clearly flawed (one could say “scofflaw”) denial all the way to the Circuit, thus wasting even more time and further undermining the BIA’s credibility? What are they thinking at Garland’s DOJ?

Think what efficiencies, not to mention due process and fundamental fairness, a BIA of well-qualified judges who were actual experts in asylum law — focused on legal protection, not specious rejection — could bring to our broken asylum system! Why not give due process and justice a chance at DOJ?

🇺🇸 Due Process Forever!

PWS

07-21-23

🗽 BORDER: WashPost’s Maria Sacchetti’s Nuanced Report Is Well Worth A Read: “The perceived success of Biden’s approach depends on which side of the border the migrants are on.” — Right to apply for asylum is a “simple rule” that politicos of both parties lack the will & skill to follow!🤮

https://www.washingtonpost.com/immigration/2023/07/18/border-asylum-us-mexico-biden-legal/

Maria writes:

. . . .

Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.

. . . .

One border, two realities

The perceived success of Biden’s approach depends on which side of the border the migrants are on.

Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.

The streets are quiet, thanks to a 70 percent drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.

In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.

On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app — including some Mexicans, even though the rule change is not supposed to apply to them.

“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”

Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection — and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.

But advocates are powerless to navigate around the new rules until the court case is resolved.

In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.

. . . .

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

Read Maria’s full article, one of the more balanced treatments I have encountered, at the link.

A few thoughts:

Even this fine article misses the biggest point: Most asylum seekers want to “do things the right way.” But there has been no “right way” for years because of the unlawful and bogus use of Title 42 by both the Trump and Biden Administrations. It’s still being unlawfully restricted by the arbitrary Biden Administration regulations. Yet, remarkably, asylum seekers are willing to risk their lives waiting in Mexico for an opportunity to apply in an orderly, legal manner under a broken and biased system unfairly “rigged” against them! THAT’S the “real big takeaway” about the reduction in unauthorized border crossings. It’s one that that nobody except experts and advocates are willing to fully acknowledge! Indeed, during the Title 42 charade, an asylum seeker’s only chance of getting into the system was to cross without authorization. Otherwise, they would have been summarily returned without any chance to present their claims.
Some asylum seekers will qualify for protection, some won’t. That’s what the legal, asylum system is supposed to determine — in a fair, expert, and timely manner. That our asylum system has become dysfunctional and ludicrously backlogged lies squarely with poor performance by Congress, the Executive, and the Courts, in many cases “egged on” by right-wing nativists’ myths and distortions. Blaming the victims — asylum seekers — for massive USG failures over decades is totally disingenuous!
Statistically, it’s true that most asylum applicants from the Southern Border do not achieve asylum under our current dysfunctional system. But, the question we should be asking is why aren’t more qualifying, given the horrible conditions in “sending countries” and the generous legal standards — including a presumption of future persecution based on past persecution — that are supposed to apply, but often don’t in practice.
For years, the Executive, through its captive EOIR “courts,” has been unfairly manipulating and intentionally misapplying the law, as well as misreading and ignoring evidence, to achieve unrealistically high asylum denial rates for applicants of color, particularly those arriving at our borders from Latin American and Haiti. See, e.g., https://immigrationcourtside.com/justice-betrayed-the-intentional-mistreatment-of-central-american-asylum-applicants-by-the-executive-office-for-immigration-review/; https://immigrationcourtside.com/appellate-litigation-in-todays-broken-and-biased-immigration-court-system-four-steps-to-a-winning-counterattack-by-the-relentless-new-due-process-army/. This continues to happen, as documented by the unusually large number of rebukes by Article III Courts (even some of the most conservative) of the flawed decision-making coming out of Garland’s broken EOIR. See, e.g., https://immigrationcourtside.com/2023/07/14/🌊-tsunami-of-bad-☠️-bia-decisions-hits-garlands-doj-wrong-on-nexus-4th-2-1-wrong-on-nta-4th-2-1-wrong-on-agfel-8th-wrong-on-past-political-per/.
One of the most egregious EOIR-led anti-asylum “scams” is abuse and misuse of the “nexus” requirement for asylum to send legitimate refugees back into harm’s way. See, e.g., immediately preceding reference. “Persecution” must relate to race, religion, nationality, membership in a particular social group, or political opinion. But, the asylum statute does NOT require that that be the sole or even the primary motivation for the persecution. It just has to be “at least one central reason.” And, usually, persecution is carried out by the persecutor for a variety of reasons. It’s called “mixed motive analysis” and EOIR Judges, particularly at the precedent-setting BIA, routinely ignore or mis-apply it to deny grantable claims.
Harm resulting from things like “work, poverty, natural disaster, and bad governments” does not automatically qualify an individual for asylum. But, contrary to what many suggest, neither do these circumstances preclude asylum. For example, while a “natural disaster” might not make an individual a “refugee” under law, if that individual were forced to live in a known danger zone or denied life-saving assistance at least in part because of religious, ethnic, or political identity, that WOULD qualify. Was the infamous “Kristallnacht” in Nazi Germany systemic persecution of Jews for ethic and religious reasons? Or was it “mere vandalism, random violence, and hooliganism?” I would say clearly the former. But, I can imagine today’s BIA attributing it to the latter, to deny protection to a large group of individuals. I adjudicated thousands of asylum cases as both a trial and an appellate judge during 21 years at EOIR. I found that harm where a “protected ground” was “at least one central reason” was the rule, not the exception as EOIR tries so hard to make it.
Other often “trumped up” methods EOIR uses for denying valid asylum claims include bogus “adverse credibility” findings; unreasonable “corroboration” requirements; fabricated “reasonable internal relocation” opportunities; nonsensical, ahistorical “changed circumstances” conclusions; ignoring or misconstruing expert testimony; “selective reading” or mis-reading of country background reports; coercive detention in substandard conditions; and restricting or limiting access to counsel. If you think this sounds like a national disgrace on “Garland’s watch,” you’re absolutely right!
Undoubtedly, under a properly functioning system, with true expert adjudicators and judges — those whose career experiences demonstrated sound scholarship and understanding of the life-threatening circumstances of asylum seekers and the inherent limitations of both the Asylum office and EOIR — many more asylum cases from those applying at the Southern Border and elsewhere would be granted. So, Government policies based largely on “deterrence” or on the self-fulfilling prophecy that “few will qualify” should be viewed as fatally flawed. Without a better EOIR and an asylum adjudication system run by well-qualified experts, we can’t possibly formulate rational and humane border policies or indeed workable immigration policies at all. Tragically, we’re a long way from that right now!

🇺🇸 Due Process Forever!

PWS

07-19-23

Hamed Aleaziz & Tracy Wilkinson report for the LA Times:

🇺🇸 Due Process Forever!

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Todd Miller reports for the BorderChronicle:

🇺🇸 Due Process Forever!

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Here’s the EOIR press release:

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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BIA HEADNOTE:

🇺🇸 Due Process Forever!

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Andrea writes in a NYT Op-Ed:

🇺🇸 Due Process Forever

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Professor Alberto Benítez reports:

🇺🇸Due Process Forever!

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Colorado AILA reports:

🇺🇸 Due Process Forever!

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Dan Kowalski reports for LexisNexis Immigration Community:

🇺🇸 Due Process Forever!

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Professor Alberto Benítez reports to Courtside:

Victory is the only option!

🇺🇸 Due Process Forever!

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🇺🇸 Due Process Forever!

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Professor Stephen Yale-Loehr reports:

🇺🇸 Due Process Forever!

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Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

🇺🇸Due Process Forever!

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Gebra v. A.G., 3d Cir, 07-19-23, unpublished (unfortunately)

🇺🇸 Due Process Forever!

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Maria writes:

🇺🇸 Due Process Forever!

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