"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera
Professor Alberto Benitez, Director of the GW Law Asylum Clinic reports:
On February 1, 2023 Immigration Clinic client, R-W-, was granted asylum by the Arlington Asylum Office. The interview was June 6, 2022, and we received the approval notice yesterday. R-W- was a women’s rights attorney in Afghanistan. Among her duties, she trained law students to help women access justice using the legal system and was training to become a prosecutor to try cases involving violence against women. When the Taliban entered Kabul, she had to quit her job at the organization she worked at and stop her training program. Because she feared being targeted based on her advocacy and her education, R-W- fled Afghanistan on her third evacuation attempt. The stress of her situation caused her to experience depression, anxiety, and fainting spells, which all required medical attention. Now that R-W- is in the United States, she is feeling better health-wise and is researching law school programs, as she hopes to continue practicing as an attorney. The above is what R-W- wrote in her affidavit in support of her asylum application. R-W can now begin the process of bringing her husband to the USA. He remains in Afghanistan.
Please join me and Professor Vera in congratulating Alex Chen and Julia Addison, who worked on the case.
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Great news! Thanks for passing it on, my friend!
This is the essence of why we have asylum laws and the heart of great legal education that teaches “practical scholarship” and real-life problem solving at the “retail level” of our justice system.
Congrats and deep appreciation for all involved. Also grateful that Ms. R-W- is part of our nation and that we can benefit from her courage, skills, and example.
“The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.” PHOTO: Creative Commons 4.0
Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:
Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.
This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?
While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.
Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.
Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!
I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!
Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.
So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit.SeeBah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).
Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!
More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.
Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.
Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.
But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.
And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.
Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expertIJ handling a non-detained docket.
That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”
As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.
But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”
That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing forupcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy.
A commentator writing years later could find no record of a malpractice claim or disciplinary complaint of any type having been filed against the attorney impugned in that case.2 The commentator cited this example in making the point that attorneys who are found to be Constitutionally deficient in criminal defense cases very rarely face disciplinary complaints.3 And the standard for establishing ineffective assistance laid out in Strickland does not require the filing of any such complaint.4
By contrast, the requirements for claiming ineffective assistance of counsel in immigration proceedings were set forth by the Board of Immigration Appeals in its 1988 decision Matter of Lozada.5 As immigration proceedings are civil in nature, the Sixth Amendment right to counsel was found not to apply; the Board determined that a right to counsel in the removal context “is grounded in the fifth amendment guarantee of due process.”6The BIA thus created its own standard in Lozada that requires (1) filing an affidavit attesting to the relevant facts; (2) informing prior counsel of the allegations, and providing any response received; and (3) if claiming “a violation of ethical or legal responsibilities” by prior counsel, indicating “whether a complaint has been filed with appropriate disciplinary authorities regarding such representation, and if not, why not.”7
A practice advisory of the American Immigration Council points out that requirement number three “on its face…does not require filing a bar complaint in all circumstances.”8 The AIC advisory cites circuit decisions excusing the filing of disciplinary complaints, including Fadiga v. Att’y Gen., 488 F.3d 142, 156-57 (3d Cir. 2007) (allowing no bar complaint “where counsel acknowledged the ineffectiveness and made every effort to remedy the situation”), and Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (holding that Lozada only requires an explanation of whether a bar complaint was submitted, not proof that the complaint was filed).9
Nevertheless, a 1996 BIA precedent, Matter of Rivera,10 underscores the risk of not filing a bar complaint. In that case, the requirements of Lozada were satisfied. As to the third requirement, new counsel indicated that a disciplinary complaint was not filed against prior counsel because “if any error was made in this case it was a postal error or an error of inadvertence by [former counsel].”11 Although this explanation accorded with Lozada, as it was explained both whether a bar complaint was filed and why, the Board rejected the explanation as insufficient.
The majority opinion in Rivera went on to provide a list of reasons why it considered “[t]he requirement of a bar complaint” important in ineffective assistance claims. A dissenting opinion written by then-BIA chair Paul Schmidt addressed the issue far more sensibly:
I do not need a Lozada motion or a state bar complaint to find that ineffective assistance has occurred here. The respondent’s affidavit and that of former counsel are sufficient to establish that former counsel’s duties to the respondent were not properly discharged. There is no hint of collusion between former counsel and the respondent. Under these circumstances, I see no basis for making the filing of a state bar complaint the determinative factor…12
Thus, in Rivera (and in a subsequent precedent, Matter of Assaad,13 the Board reframed the need to file a disciplinary complaint as a categorical requirement under Lozada. But in its circumstance-specific approach, Judge Schmidt’s dissent raised the question of whether this requirement is really necessary.
Nearly six years after Rivera, the answer to that question came from an unlikely source. Matter of Lozada was briefly vacated in the final days of the Bush Administration by then Attorney General Michael Mukasey.14His decision reframed ineffective assistance claims from a due process right into a discretionary agency action, and in doing so, created a new, tougher standard for establishing ineffective assistance that far fewer respondents would be able to satisfy. But interestingly, the A.G.’s decision felt the need to rethink the Board’s disciplinary complaint requirement:
By making the actual filing of a bar complaint a prerequisite for obtaining (or even seeking) relief, it appears that Lozada may inadvertently have contributed to the filing of many unfounded or even frivolous complaints. See, e.g., Comment filed by the Committee on Immigration & Nationality Law, Association of the Bar of the City of New York (Sept. 29, 2008), in response to the Proposed Rule for Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances, 73 Fed. Reg. 44,178 (July 30, 2008) (“Under the Lozada Rule, an ineffective assistance of counsel charge is often required in order to reopen a case or reverse or remand an unfavorable decision. The practice of filing such claims is rampant, and places well-intentioned and competent attorneys at risk of discipline.”). Such unfounded complaints impose costs on well-intentioned and competent attorneys, and make it harder for State bars to identify meritorious complaints in order to impose sanctions on lawyers whose performance is truly deficient. The new approach is intended to avoid these problems by requiring only that the [noncitizen] submit to the Board a completed and signed but unfiled complaint…15
In light of these concerns, the new Compean standard still required the preparation of a disciplinary complaint against prior counsel, but (perhaps in a bizarre nod to Moses E. Herzog) added that the respondent “need not actually file the complaint with the appropriate State bar or disciplinary authorities, as Lozada had required.”16
Less than five months after its issuance, Compean was vacated by Mukasey’s successor, Attorney General Eric Holder, thus restoring the Lozada standard, along with its mandatory bar requirement.17 Holder’s decision further directed EOIR to draft proposed regulations on the topic for public comment “as soon as practicable.”18
When the agency finally published those proposed regulations more than seven years later, they retained Rivera’s mandatory complaint requirement.19 In its comments to the proposed rule, the American Immigration Lawyers Association opined that the mandatory complaint requirement should be eliminated, stating that “rather than centering on attorney discipline, the rules governing ineffective assistance of counsel should focus on assisting and protecting the noncitizen victim…” The comment continued that “EOIR already has ample existing procedures to police the immigration bar without requiring the filing of a formal complaint.”20As no final rule was ever published, we don’t know EOIR’s reaction to the comment.
Another six years later, the question first raised in the Rivera dissent, and to which a Bush Administration Attorney General and leading bar groups seem in agreement on the answer, remains unresolved.Recently, immigration law experts have revived the issue.21As those experts again point out, the purpose of reopening a proceeding in which attorney error occurred is to remedy a harm that was beyond the respondent’s ability to control. The focus on correcting the harm (as opposed to punishing the lawyer) is why in the criminal context bar complaints rarely if ever accompany ineffective assistance claims. The lack of sucha requirement allows attorneys to admit to their occasional errors without fear of retribution.
In its unique approach to the contrary, the BIA discourages attorneys from being forthcoming about their errors, and further forces counsel to turn on their own colleagues for acts that would not warrant the extreme action of a bar complaint in any other context. It seems remarkable that even an Attorney General decision issued during the Bush Administration acknowledged that most bar complaints filed pursuant to Lozada are “unfounded” and “impose costs on well-intentioned and competent attorneys,” while also hampering state bars from identifying and disciplining genuine incidents of malpractice.
According to one proponent of amending the standard, attorney Rekha Sharma Crawford, the current Lozada requirement pits members of the private bar against one another in a very destructive way, and adds unnecessary stress on the immigration removal defense counsel who are often at the forefront of these claims-many which are meaningless and done only to comply with Lozada.22
Hopefully, this will be the year that the agency finally gets around to resolving this issue by removing the mandatory complaint requirement of Lozada, and thus bringing the standard in immigration proceedings into alignment with those required in other civil and criminal courts and tribunals.
Copyright 2022 Jeffrey S. Chase.All rights reserved.
Notes:
466 U.S. 668 (1984).
Joseph H. Ricks, Raising the Bar: Establishing an Effective Remedy against Ineffective Counsel, 2015 BYU L. Rev. 1115, 1120 (2016).
Id.
The Strickland standard requires a finding that (1) counsel’s performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability that the result would have been different if not for counsel’s inadequate performance.
12.Id. at 608. It bears noting that Judge Schmidt, and two of the three Board Members who joined in his dissent (Lory Rosenberg and Gustavo Villageliu) are presently members of the Round Table of Former Immigration Judges.
20.Comment filed by the American Immigration Lawyers Association (Sept. 26, 2016), in response to the Proposed Rule for Motions Reopen Removal, Deportation, or Exclusion Proceedings Based Upon a Claim of Ineffective Assistance of Counsel, 81 Fed. Reg. 145 (July 28, 2016).
21.See, e.g., an October 3 AILA Roundtable, “Changing the Bench: A New Narrative on Lozada and Bar Complaints.”
22.Private email to the author.
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Republished by permission.
As “Sir Jeffrey points out,” in Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec. 1 (A.G. June 3, 2009), AG Eric Holder directed EOIR to promulgate new regulations providing guidance on ineffective assistance of counsel. More than seven years later, in 2016 — essentially the entire Obama Administration — DOJ/EOIR issued flawed “proposed” regulations. Not surprisingly, no final regulations were ever issued. A dozen yers after the AG directed EOIR to take action — a big “nothingburger.”
This by no means is the only example of EOIR/DOJ’s unsuitability to the task facing it. It’s reminiscent of the tortured history of the “gender based asylum” regulations ordered by former AG, the late Janet Reno, but issued only as a badly flawed proposal and never finalized.
Additionally, incoming President Joe Biden made issuing “gender based regulations” one of his Administration’s highest priorities, ordering action by October 2021. A year later — nothing!
Meanwhile, EOIR Judges’ applications and interpretations of the governing precedent on gender-based asylum — Matter of A-R-G-G- — are wildly inconsistent. Beyond that, the 5th Circuit has taken the right-wing misogynistic “liberty” of simply ignoring the law on gender-based asylum.
“Lozada reform” is long overdue. But, so is meaningful EOIR reform!
Ultimately, America needs and deserves an independent U.S. Immigration Court with exceptionally well-qualified judges, at all levels, who are recognized experts in asylum law and unswervingly committed to due process and best judicial practices.
Until then, those appearing in Immigration Court — disproportionately individuals of color and women — and their hard-working attorneys — will continue to receive grossly substandard “justice” from “Justice!”
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA! Public Domain
Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published
PANEL:KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
OPINION: Judge FLOYD
KEY QUOTE:
In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would
2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.
11
have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).
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Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
3
On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.
Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution! Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
NOT, a “mere mistake.”
EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.
Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?
If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!
“What are legal ethics? Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers! So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.
TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.
Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.
CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.
CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.
AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.
Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.
Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.
Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.
BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.
Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.
LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.
Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”
Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.
Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.
AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.
AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.
USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implementedby the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!
Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.
In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions!
But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ millionEOIR backlog, following this remand from the Second Circuit.
Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.”
It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).
The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”
“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW?
Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.”
That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!
There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!
“Nexus? What nexus? These “just happen to be” women facing a little “random violence!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
With credible testimony and harm that rises to the level of persecution for a woman in El Salvador, who was the victim multiple rapes, on its face, this should have been an easy grant for a competent IJ.
Essentially, this judge argues that harm rising to the level of persecution — multiple rapes — inflicted on a woman in El Salvador, where femicide and misogyny run rampant, has nothing to do with her being a woman. Such a conclusion is unlikely — some experts would say facially absurd!
Indeed, the IJ’s apparent view that multiple rapes had nothing to do with a gender-based protected ground of being a woman would be totally “off the wall” for any experienced asylum adjudicator who truly understood the well-documented nature of violence against women as a widespread form of persecution worldwide!
According to the UN Handbook for Determining Refugee Status, adjudicators should give credible applicants “the benefit of the doubt.” “It is therefore frequently necessary to give the applicant the benefit of the doubt.” (Par. 203). That’s not what this IJ did!
Also, in the remand order, the BIA specifically rejected the IJ’s finding that this gross harm to the respondent was “individualized” and “personalized” and therefore not a basis for an asylum claim — something not mentioned by the IJ in his “certification.”
Counsel for the applicant is well aware of this “better analysis” and could have argued it.But, in his snarky haste to prejudge and deny needed protection, this Houston IJ didn’t even give the parties a chance to participate in his “return to sender” (“certification”) nonsense.
A better functioning expert BIA would have long ago provided precedential guidance granting cases like this — adopting and amplifying the rationale of the IJ in the Honduran case.
Additionally, the BIA remand instructed the IJ to inquire of the DHS as to whether this victim of multiple rapes with no apparent criminal record or other adverse factors was and “enforcement priority” under applicable DHS guidelines — something that the IJ contemptuously and improperly did not do! Indeed,he didn’t seek any input from the parties despite being instructed to do so.
Unquestionably, being an El Salvadoran woman is a) immutable or fundamental to identity; b) highly particularized, and c) socially visible, as recognized by the Salvadoran government and everyone in El Salvador, thereby clearly qualifying as a “particular social group.”
There is also plenty of reliable evidence that El Salvador, like the rest of the Northern and Triangle Governments, is basically a failed state — something publicly admitted by some Administration officials, including Special Envoy to the Northern Triangle Ricardo Zuniga. https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A (“democracy, the rule of law and the security situation continue to deteriorate”). The Salvadoran government is neither willing nor able to provide a reasonable level of protection to women like this applicant. Indeed, there is likely sufficient evidence for a better BIA to establish a “rebuttable presumption of failure of state protection” in El Salvador and the rest of the Northern Triangle.
Temporary Appellate Immigration Judge Gabe Gonzalez, author of the remand, is one of the better BIA judges. But, his remand could have been even stronger. He could have reversed this IJ and granted asylum on this record. Why “beat around the bush” on grantable cases that are being mishandled by “chronically over-denying IJs” below? At this point, removal of this particular judge from the case would be more than justified. Cases like this certainly raise the legitimate question of why IJs who sit around inventing reasons to deny relief to those in need of protection are on the Immigration Bench in the first place. There are certainly better-qualified judicial choices — many of them located in Texas — who could bring legitimacy, quality, and efficiency to Garland’s dysfunctional courts!
“Bogus lack of nexus” is one of the most overused grounds for improper denials of protection by EOIR judges at all levels. It’s part of the “any reason to deny” approach enabled by EOIR’s current “anti-asylum culture” — one that was overtly encouraged and promoted by the Trump DOJ.
Inexplicably selecting Houston as one of the “test locations” for the new asylum regulations is “built to fail.” Without expert, positive guidance from qualified IJs in Houston (and the BIA) on granting asylum — something that this “denial centered court” simply doesn’t possess — there is every reason to believe that asylum seekers will not receive professional treatment or correct decisions from either the Asylum Office or the Immigration Court in Houston. And, relying on the BIA or, worse yet the “over the top” 5th Circuit,” to guarantee fairness and justice for asylum seekers? That’s a sick joke under current conditions!
8) Poorly reasoned, legally incorrect asylum denials and frivolous actions like the IJ’s “certification” in this case are a major factor in generating a 1.8 million case EOIR backlog and enabling a lawless, non-expert, anti-immigrant “culture of denial” at EOIR. Many grantable asylum cases languish in the backlog, are subjected to “Aimless Docket Reshuffling,” and then are wrongfully denied by poorly performing judges at both levels of EOIR.
9) EOIR suffers from poor leadership, a poorly performing BIA that overall lacks the expertise and courage to grant the large number of deserving asylum cases currently languishing in the EOIR backlog, and to set proper legal standards that will guide Immigration Judges and Asylum Officers in efficiently granting deserving cases at the first level of the system.
10) Garland should remove or reassign the “under-performers” and “non-performers” at EOIR and replace them with qualified experts committed to best practices and “guaranteeing fairness and due process for all” (EOIR’s now long-forgotten and dishonored mission).
11) Lives and the future of democracy are at stake here! America simply can’t afford the “institutionalizednonsense” still rampant at EOIR as illustrated by this case!
12) Also, EOIR’s performance in this cases is inconsistent with almost every sentence of the recent “LA Declaration.” Issuing statements of principle that are directly contradicted by your actual practices is a bad idea!
This has been a bad week for individual rights and particularly the rights and humanity of women in America. Garland can’t fix the out of control, “fringe-right,” Supremes’ majority. But, he can fix EOIR! And, that would be a long overdue and desperately needed first step toward fixing the entire broken and foundering Federal Court system. Start “at the retail level” with what you have the power to fix and work from there!
Here’s a comment from Hon. “Sir Jeffrey” Chase of the Round Table:
You probably already know this, but Hiroko [Kusuda] is a real NDPA star.She was awarded AILA’s Excellence in Teaching Award a few years ago, and received the NGO Attorney of the Year Award this year from the FBA’s Immigration Law Section.She has tirelessly represented the respondent in Matter of Negusie for years.
Beautifully written and reasoned decision by Judge Marsteller. Highly effective presentation by Professor Kusuda and the Loyola NO Immigration Clinic. No appeal of correct decision from ACC Robert Weir. It all adds up to a proper, efficient application of the law to save a life!
In addition to his very cogent analysis of why “Honduran women” is immutable, particularized, and socially distinct, Judge Marsteller got the nexus, “unwilling or unable to protect,” and reasonably available internal relocation issues in Honduras correct. These are things that too many Immigration Judges get wrong on a frequent basis — life-threatening mistakes that the BIA seldom corrects and never provides “positive guidance” in a precedential cases! Why?
The process could work like this in every case! Why doesn’t it?
This case is is a great illustration of a well-functioning system that EOIR, DHS, and the private bar could “build upon” to restore order, integrity, and efficiency to the Immigration Courts. It’s a shame that Garland hasn’t installed the right dynamic, practical, expert, due-process-oriented “leadership team” at EOIR and the BIA to get the job done!
Many congrats to Hiroko and all involved in this success story.
Here’s an obvious question: Why aren’t Hiroko and many other “practical scholars” like her appellate judges on the BIA, fashioning the positive practical precedents on asylum and other forms of relief and articulating and requiring “best practices” that will “move” cases through the Immigration Courts in an efficient and orderly manner — without stomping on anybody’s legal and human rights?
Why not have Judge Marsteller teach his colleagues at EOIR how to “get to yes” in the many similar cases now languishing and often being wrongly denied in Immigration Courts?
Why was Judge Marsteller able to figure out the correct answer when it often eludes the BIA?
Why can’t EOIR under Garland “build on success” rather than “institutionalizing failure?”
There are plenty of similar cases out there in the EOIR backlog and waiting at the border for the Administration to start following asylum law!(Others have been unlawfully and immorally returned to persecution without meaningful opportunities to present their claims.)
These types of cases could be identified, represented, and timely granted by a “better EOIR” led by a “better BIA.” These are the decisions that should be binding precedents. Practical, positive legal guidance shows how to “build on” gender-based and family-based asylum to grant more protection, encourage good preparation and presentation on both sides, rein in “never asylum judges,” and to clear dockets of cases of individuals who deserve to be on their way to green cards, citizenship, and full participation in our society.
A fair, consistent, timely application of asylum and refugee laws would establish that many of those wrongly characterized as “law violators” are, in fact, legal immigrants. And, that’s something our country needs!
What if the “powers that be” would “institutionalize” this type of judicial performance rather than the “denial factory/good enough for government work” culture that continues to operate widely at EOIR under Garland? Wouldn’t that be the type of “good government” that Biden and Harris promised, but have yet to deliver, particularly on immigration?
Personal note:Judge Balasquide was the widely respected ICE Chief Counsel in Arlington when I arrived at the Arlington Immigration Court in 2003. He was initiallyappointed as a Immigration Judge in New York in July 2006 by then AG Alberto Gonzalez. I always enjoyed working with Judge Balasquide during my time in Arlington. (He actually appeared before me in court on a few occasions.)
“Tough noogies, ladies, suck it up and accept your fate,” say Federal Judges Southwick, Jones, and Oldham of the 5th Cir! Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsNo “particular social group” here says 5th Circuit Judge Southwick and his buddies Jones and Oldham. Just a little “good old fashioned trial by ordeal.” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Toxic Trio of “America’s Worst & Most Cowardly Judges” sticks it to Salvadoran refugee woman who survived domestic violence in country where femicide is rampant and uncontrolled by corrupt and inept government.
Lopez Perez v. Garland, 5th Cir., 06-02-22, published
BEFORE:Edith Jones (Reagan), Andrew Oldham (Trump), and Leslie H. Southwick (Bush II) Circuit Judges
OPINION: Judge Southwick
Lopez-Perez argues here that the IJ erred under Matter of A-R-C-G- by concluding that she had not established a nexus between her persecution and her social group. Further, she argues that the IJ incorrectly decided that the government of El Salvador was willing and able to protect her.2 These issues were identified in her Notice of Appeal and are preserved for our review here.
It is true that the IJ concluded that Lopez-Perez had not demonstrated the requisite nexus and further that she had not shown that the government was unable or unwilling to help her. Although the IJ’s analysis was cursory, we nonetheless conclude that his decision must be upheld because remand would be futile. Jaco, 24 F.4th at 406. The IJ intimated that Lopez-Perez’s proffered social groups — “Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” — were cognizable.
2 Lopez-Perez also argues for the first time that we should remand to the IJ for consideration in light of intervening decisions in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) and Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020). We decline this invitation. In addition to the fact that this argument was not raised in her Notice of Appeal, Matter of A- B- has been overruled, see A-B- III, 28 I. &. N Dec. 307 (Att’y Gen. 2021), and this court specifically rejected Grace in Gonzales-Veliz, 938 F.3d at 233–34. See also Meza Benitez v. Garland, No. 19-60819, 2021 WL 4998678, at *4 (5th Cir. Oct. 27, 2021) (explaining this Circuit’s rejection of Grace).
7
Case: 20-60131 Document: 00516340524 Page: 8 Date Filed: 06/01/2022
No. 20-60131
We have disagreed, holding that circularly defined social groups are not cognizable. See id. at 405; accord Gonzales-Veliz, 938 F.3d at 226. Indeed, the social groups identified in Jaco are nearly identical to those claimed by Lopez- Perez: “Honduran women who are unable to leave their domestic relationships . . . and Honduran women viewed as property because of their position in a familial relationship.” Jaco, 24 F.4th at 399. Because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Lopez-Perez’s social groups were not cognizable, thus ending the analysis. See In re Ramos, 23 I. & N. Dec. 336, 341 (BIA 2002) (noting that the BIA is “unquestionably bound” to follow circuit court rulings).
We DENY the petition for review.
********************************
It’s worthy of note that neither party challenged the propriety of the “particular social group!” So, this panel actually went beyond the issues before them to “stick it to” this abused refugee woman by gratuitously rejecting a well-established formulation of a “particular group” that has been the basis for granting protection in literally thousands of cases going back over two decades. (I note that even before A-R-C-G-, in Arlington the DHS Counsel routinely accepted this formulation of a “PSG” based on the so-called “Martin Memo” from DHS.)
Perhaps, that’s because even this panel acknowledged that the IJ’s “nexus analysis,” the actual ground of denial was “cursory.” In other words, this vulnerable women sought legal protection only to be shafted by poorly qualified Federal Judges at every level — the Immigration Court, the BIA, and the Fifth Circuit!
Here’s what Wade Henderson, then President and CEO of the Leadership Conference on Civil and Human Rights had to say about Judge Leslie H. Southwick in opposition to his confirmation:
Given the tremendous impact that federal judges have on civil rights and liberties, and because of the lifetime nature of federal judgeships, no judge should be confirmed unless he or she demonstrates a solid commitment to protecting the rights of all Americans. Because Judge Southwick has failed to meet this burden, we must oppose his confirmation.
Here’s what the progressive group “Suit Up Maine” had to say about Judge Andrew Oldham at the time of his confirmation:
ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.
All these fears, criticisms, and predictions of bias have proved to be all too well-founded in the mal-performance of this “Toxic Trio” of far right ideologues.
“Heard (not Amber) on the street:
“So the one BIA precedent in the past 20 years that actually recognized a PSG as valid isn’t worthy of Chevron deference, but A-B- was?!!”
“No more judicial restraint? Why is DOJ not changing position and or dropping these cases?”
“The 5th Circuit decision claims to direct all IJs in the 5th NOT to apply ARCG. And, most 5th Circuit IJs are high deniers anyway, so they don’t exactly need encouragement.”
“Perhaps better IJs could think of creative ways to work around the 5th’s decision. But, they don’t exist in the 5th Circuit in Garland’s EOIR.”
“It also shows the problems caused by Garland’s failure to “redo” the BIA and the IJ corps on “Day 1.” By now, it’s too late.”
Unqualified, far-right Federal Judges, egged on and supported by Stephen Miller and GOP State AGs, have basically usurped the power of Congress and the Executive to set immigration policies. There is lots of contempt for humanity, racism, misogyny, religious intolerance, and disrespect for true individual liberty driving their vile and illegal agenda.
The Constitutional rights of all Americans and the future of our democracy is at stake here. Will enough folks wake up and resist this takeover before it ‘s too late? TBD!
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
Professor Alberto Benitez reports:
Please join me and Professor Vera in congratulating Immigration Clinic client, K-H-, from Indonesia, and her student-attorneys, Jordan Nelson, Julia Yang, and Alex Chen. The client’s asylum application was filed on December 3, 2018, she had two interviews at the Asylum Office, on November 10, 2021 and March 2, 2022, and she was granted asylum on May 24, 2022. We received the notice today. The above-captioned is what K-H- said upon learning about her asylum grant.
K-H- is a lesbian woman. Throughout her life, she has had to hide her identity for fear that her family would disown her and that she would be arrested, physically harmed, or even killed if she was outed in her country. K-H- came to the U.S. in 2017 to work as a nanny. During that time, her host family was also hostile towards members of the LGBTQ+ community. Afraid once again, K-H- moved households and with the support of that host family and the Immigration Clinic, she decided to apply for asylum so that she could live her life openly as a lesbian woman. K-H- now volunteers for several LGBTQ+ initiatives, including a theater program for LGBTQ+ people of color. She finds that sharing her story is therapeutic. When Professor Vera asked how K-H- planned to celebrate, she replied that she will be celebrating with her new girlfriend.
Congrats again to my friends Alberto and Paulina and their talented students!
Jason Dzubow The Asylumist
Proving the “Dzubow Rule:”“The winners are out here! We just have to get them represented and to merits determinations before competent adjudicators in a hopelessly backlogged system.”
How many refugees like K-H- have been arbitrarily and illegally returned to danger and harm by the Biden and Trump Administrations with no process at all, let alone due process of law? Cutting off the right to make and be fairly heard on claims to asylum and mandatory legal protection is a major human rights violation by our Government!
Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.
P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!
Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?
I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?
Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!
The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.
It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?
Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!
Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?
These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”
When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.
The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
As Dean Caplow cogently points out:
Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.
While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!
As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!
There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”
Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence).All of us who care about the future of American justice should be asking why he isn’t doing his job!
GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera
Please join me and Professor Vera in congratulating Immigration Clinic client, R-A-, from Nigeria, and his student-attorneys, Olivia Russo, LinLin Teng, Kennady Peek, Lea Aoun, and Megan Elman. The client’s asylum application was filed on December 3, 2018, his interview at the Asylum Office was on September 3, 2021, and he was granted asylum on May 18, 2022. We received the approval notice yesterday. The above-captioned is what R-A- said upon learning about his asylum grant.
R-A- is a gay man and LGTBQ+ activist. Throughout his entire life, R-A- experienced bullying and threats and had to keep his dating life a secret. However, things got even worse for him once he started an LGTBQ+ online magazine that received international attention. His family disowned him. A former classmate also set him up and he was physically beaten, sexually assaulted, called derogatory names, blackmailed, and outed. Since coming to the U.S., R-A- has continued to work on his online publication and volunteer for other LGBTQ+ initiatives. He hopes to one day attend law school in the U.S.
Thanks for the update and for all you and your student attorneys do for American justice! Once again this shows the effect of expert representation of asylum seekers and the critical importance of winning cases at the first possible level, in this case the USCIS Asylum Office. Who knows what might have happened if this had been sent over to the “EOIR roulette wheel,” where life or death justice for immigrants has become a “high-stakes game of chance?” 🎰
Perhaps even more remarkably, most of the folks who participated in that “intentional misdirection” remain on the agency payroll under Garland, a number in their same positions.
The lack of an Attorney General who “gets it” (apparently a staple of Dem Administrations) and who is willing to clean house and make the necessary aggressive progressive reforms to restore due process at EOIR and throughout the Immigration bureaucracy is yet another reason why the work of clinics and other battalions of the NDPA remains so critical! With a Government whose contempt for Due Process is amply illustrated by foot-dragging on Title 42 revocation, bogus, justice-denying “Dedicated Dockets,” and an appellate body that cuts corners while eschewing positive asylum guidance that would save lives, advocates for respondents are the only folks seriously interested in carrying out our Constitution and insuring that the rule of law is honored.
If that sounds like an indictment of Garland’s “leadership” on human rights, racial justice, and immigrant justice, that’s because it is!
Just think how much better this system would work if Immigration Judges were getting guidance from the BIA to get these correct in the first place.
Also raises additional questions of why: 1) cases like this aren’t precedents; and 2) so-called “Temporary” Appellate Immigration Judges like Judge Gabe Gonzalez are “outperforming” most “permanent” BIA Judges?
There is more helpful, practical guidance in Judge Liebmann’s “two-pager” than in most BIA precedents. So, why isn’t this a precedent?
A.G. Garland overruled Session’s abominable, wrong-headed precedent nearly one year ago. Yet, there has been no further guidance from the BIA on the meaning of the “reinstated A-R-C-G-.” Nor, have the so-called “gender-based regulations” ordered by Biden and referenced by Garland ever seen the light of day.
Meanwhile, there are many cases like this out there in the backlog. Most of them could be granted with proper guidance and supervision from a “Better BIA.” No wonder the backlog continues to grow!
My prediction that the “ascension” (she was a “mere TBM” at the time of this particular decision) of Judge Liebmann to join Judge Saenz on the BIA would be a “breath of fresh air” for practitioners appears to be gaining at least some traction. But, it’s going to take more than two well-qualified judges to pull the BIA out of its current “death spiral.”
