⚖️👍🏽NDPA:  TWO BIG WINS FOR THE GOOD GUYS ! — Crime — Nunc  Pro Tunc Order —Family-Based Asylum From El Salvador!😎

Matter of Dingus, 28 I&N Dec. 529 (BIA 2022)

https://www.justice.gov/eoir/page/file/1496311/download

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/matter-of-dingus-28-i-n-dec-529-bia-2022#

“In a decision dated May 21, 2020, an Immigration Judge found the respondent to be removable as charged, denied her application for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h) (2018), and ordered her removed from the United States. On appeal, the respondent contests the Immigration Judge’s determination that her Virginia conviction for distributing a controlled substance renders her ineligible for a section 212(h) waiver, arguing that a State court issued a nunc pro tunc order reflecting that she was not convicted of distributing a substance controlled by Federal law. The Department of Homeland Security (“DHS”) opposes the appeal. Because the nunc pro tunc order reflects the respondent has not been “convicted” of an offense relating to a controlled substance within the meaning of the INA, the respondent’s appeal will be sustained and the record will be remanded for further proceedings.”

[Hats off to Ben Osorio!]

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Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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Many congrats, Ben!😎 A rare win for the rule of law and the “good guys” at the BIA. And, give the BIA panel (Judges Goodwin, Gorman, & Greer) credit for rejecting the ICE position and getting this one right under the categorical approach.

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Hello all,

Just wanted to share some good news!  A client had her merits hearing yesterday afternoon in Seattle. Her asylum claim was based on her PSG of being an immediate family member of a police officer.  She had been threatened by some maras and approached because the maras knew her husband was an officer.  She fled within 2 weeks.  The judge granted and DHS surprisingly did not put up much of a fight.

Sincerely,

Ramon Trujillo

Ramon Trujillo

Law Offices of Ramon Trujillo

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Many congrats, Ramon! Clearly the correct result under Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). A former policeman is a PSG; so, undoubtedly the immediate family is also. And certainly, that relationship was “at least one central reason” for the persecution.

Imagine what a “Better Immigration Court” could look like if everyone had the awareness and integrity of the group in court for this case. Justice is a “team effort,” and it sounds like that’s what happened in your case.

That’s what should happen every day in every case at EOIR!

Also, I’ll bet there are more cases like this that were unfairly “locked out of our refugee/asylum system” by abusive use of Title 42 by the Trump and Biden Administrations.

🇺🇸 Due Process Forever!

PWS

04-23-22

🗽⚖️👍🏼GW CLINIC SAVES ANOTHER REFUGEE LIFE — But, It’s A Sobering Example Of The Type of Person Who Will Be Left To Die At Our Borders If Feckless, “Miller Lite” (Or, “Miller Genuine?”) Dems Are Able To Persuade Biden To Kill Asylum For Good  & Join GOP’s Racist Abrogation Of Rule Of Law! — Progressives Need To “Push Back Hard” On Latest Dem Cowardice & Nonsense — Insist On Restoration Of Rule Of Law For ALL Asylum Seekers @ Border!

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

“I really do not find enough words to let you know how grateful I am to all of you for your wise and timely guidance at all times and for the dedication and commitment that you assumed from the first moment towards our asylum case.”

Please join me in congratulating Immigration Clinic client T-G and her son F-P, from Venezuela, and their student-attorneys Karoline Núñez, Samuel Thomas, Alexandra Chen, and Jeremy Patton. The clients’ asylum application was filed April 28, 2017, their interview at the Asylum Office was on November 1, 2021, and the grant was issued March 21, 2022. T-G received the grant yesterday.

T-G is a survivor of domestic violence at the hands of her husband. He’d punch T-G, force her to have sexual relations, infected her with a STD, and he blamed her for their daughter’s neurological issues. Their daughter contracted Zika but was unable to receive the appropriate treatment because T-G was not a supporter of the Maduro government. Their daughter died at age 14.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

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Many congrats to the GW Immigration Clinic and all the GW All-Stars! 🤮⚖️

Let’s get behind the intentional dehumanization and the chronically misleading “numbers” being thrown around by nativists, some so-called “moderate” Dems, and the DHS. Put a “human face” on our nation’s dereliction of legal duty and abandonment of values at out Southern border.

Suffering at the Border
The Faces Of Human Suffering @ Our Border
PHOTO: The Guardian

This case is a compelling example of the types of refugees, many women and children and most people of color, who are stuck at our Southern Border as illegal suspension of asylum laws, based on racially- motivated bogus “public health” grounds grinds on. With some legal assistance and a fair and orderly system in place, many of those waiting could qualify for asylum if given a fair chance under the law. 

Access to the asylum system, representation, and fair and impartial adjudication are essential to success. Right now, the Biden Administration is denying all three.

Now, more amoral and weak-kneed Dems are urging Biden to kill asylum and refugees of color along with it by “delaying” the long overdue resumption of legal asylum processing at the border for another “60 days.” https://www.forbes.com/sites/joewalsh/2022/04/18/more-democrats-criticize-biden-for-plan-to-end-trump-era-border-restrictions/?sh=68b608c251d8  

Make no mistake, this disingenuous action would kill asylum for good! These guys don’t even have the guts to admit that they are now carrying out Stephen Miller’s xenophobic war on immigrants and refugees of color.

  • Biden ran on an elimination of Title 42 and restoration of the legal asylum process. If 18 months after the election they lack a “plan,” there is no reason to believe that 60 more days would make a difference. It’s now or never!
  • 60 days would bring us even closer to the mid-terms. If Dems are scared to follow the law now, that’s not going to improve as the midterms get even closer. 
  • You can be sure that once the midterms are past, particularly if Dems get “blown out” as they fear, they will claim that the time “isn’t right” for any immigration “reform” (although, following the law is hardly a real “reform”) in advance of the 2024 election. If the GOP wins in ’24, the effective elimination of legal immigration — with or without legislation — will be finalized.
  • This has nothing to do with COVID at this point. It never really did. It was always about finding a pretext to close the border and keep it closed — at least to non-White refugees. But, since COVID constantly mutates, there will always be some sort of “COVID emergency” out there for the foreseeable future. 
  • Asylum applicants have NOT been a significant source of COVID. They are far less of a threat to our health, safety, and security than GOP “magamorons” who eschew vaccination and basic public safety precautions. The Biden Administration should have a plan in place to insure that asylum seekers are tested and if necessary vaccinated before admission.
  • If we have no legal asylum system at the border, no functional refugee system abroad, and no hope for the future, the only way for individuals to seek protection will be by using smugglers to enter illegally and then hoping to “lose themselves” in a burgeoning “extralegal population” throughout out America. Once we abandon any pretext of a legal system for asylum seekers, the border will get further and further out of control. That will add to the GOP’s claims that more and more cruel, draconian, and punitive measures are necessary. But, they won’t stop desperate people from attempting entry until they either succeed or die in the process.
  • Contrary to the misguided blather of some Dems, there will never be a better time for Dems to support asylum seekers. They are concentrated in border areas, and eager to have their claims heard. Orderly processing and admitting as many as qualify, in a period of artificially reduced migration, would help the economy, raise tax revenues, and address supply chain issues. If not now, when?
  • Restoring asylum law is a legal requirement, not a “strategy,” “policy,” or “political choice.” If Dems turn their backs on the rule of law, what makes them different from the GOP?

If this divisive nonsense and backsliding on basic constitutional, racial justice, and social justice issues continues, progressive Dems are going to be faced with having to make a decision about the party’s future.

Progressive Dems make up a key part of the party’s core base and a disproportionate amount of the “boots on the ground, grass roots enthusiasm.” Republicans aren’t going to vote for Dems, no matter how xenophobic, hateful, and racist Dems are toward migrants. So-called “independents,” are neither going to fill the Dems coffers nor pound the pavement and work the phone lines to “get out the vote.”

So, arrogant “Title 42 Dems” are assuming that they can “spit on” immigrant justice, racial justice, economic justice, and social justice and that their “core support” among progressives won’t diminish because they will always be preferable to “Trump Republicans.”  

All in all, it’s a “big middle finger” to progressives and their social justice agenda. That’s an agenda that Biden actually successfully ran on. 

If progressives really believe in a pro immigrant, pro rule of law, racial justice agenda, then they need to stand up to the backsliders and let them know that there will be real consequences of yet another “sellout of immigrants’ rights.” We’ll see whether progressive Dems have more backbone and courage than their “Title 42/Miller Lite wing.”

This morning, a WashPost editorial correctly pointed out that Ukrainian refugees “couldn’t afford to wait” for the Biden Administration to get its act together. https://www.washingtonpost.com/opinions/2022/04/19/united-states-ukraine-refugee-effort-slow-start/

But, the Post badly missed the larger point — NO refugee can afford to wait, be they White Ukrainians, Black Haitians, Cameroonians, and Congolese, or Latinos from the Northern Triangle, Venezuela, and Nicaragua! Our obligations to asylees are not supposed to be “race-based!”

The U.S. has had a legal refugee and asylum system for more than four decades. During that time, Congress has made several amendments of the law to allow DHS to rapidly process and summarily remove those appearing at the border who, after prompt expert screening by Asylum Officers, cannot establish a “credible fear” of persecution. 

Restrictionists and shamefully some so-called moderate Democrats, and sometimes CBP, seem to have conveniently “forgotten” that the law was designed to deal fairly and promptly with so-called “mass migrations” long before the advent of the bogus Title 42 charade.

For some periods during the 40 years since the enactment of the Refugee Act of 1980, the U.S. has run functional refugee and asylum programs. Not “perfect” or perhaps even “optimal,” but “functional.”

They have done this by employing experts, cooperating with NGOs (domestic and international), and building resettlement and support systems spearheaded by NGOs, using Government grants, and promoting teamwork and coordination with states and localities.

It has only been when Administrations of both parties have mindlessly turned away from human rights experts and followed the misguided and tone-deaf gimmicks advocated by nativists and apostles of “enforcement only deterrence” that the legal systems for refugees and asylees, and efficient, humane border enforcement, have fallen into disorder.

While refugee and asylum laws could undoubtedly be improved, contrary to the media blather and nativist grandstanding, we have the basic legal framework to deal with the current refugee and asylum situations at our borders and beyond. The question is whether the Biden Administration and Dems have the will, vision, competence, and willingness to cooperate with human rights experts to fix the mess intentionally created by Trump and return human decency, competence, and the rule of law to our borders! If not now, when?

🇺🇸Due Process Forever!

PWS

04-19-22

 

THE GIBSON REPORT — 04-11-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, National Immigrant Justice Center — FEATURE: Fifth Circuit 🏴‍☠️ Attacks Refugee Women With Absurdist “Analysis” In Sanchez-Amador v. Garland! 🤮  

Elizabeth Gibson
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.

 

CONTENTS (jump to section)

  • PRACTICE ALERTS
  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

 

PRACTICE ALERTS

 

EAD Rules Fully Vacated

NIJC: On Friday (4/8) we learned from the government that it would not file an appeal in AsylumWorks v. Mayorkas.  This means, happily, that the EAD Rules that delayed and in some cases denied access to EADs for asylum seekers are fully vacated.  The vacatur applies to both the 30-day adjudication rule and the larger rule that had more than a dozen changes to EAD eligibility for asylum seekers.

 

NY EOIR Asks ICE to Submit PD Stance 3 Days Before Hearings

EOIR: In an effort to reduce our interpreter non-usage and our continuance rates, the New York – Federal Plaza Immigration Court has asked DHS that PD positions be provided to the court on matters scheduled for a hearing at least three days before the hearing. This would allow cancellation of the interpreter order without cost to the court, and would permit another previously scheduled case to be advanced into the open hearing slot. In addition, the court is endeavoring to identify cases already scheduled which are likely to be granted PD based upon DHS guidelines. We have requested DHS’s assistance in this endeavor. [It is unclear whether other courts will request the same.]

 

Social Security Administration to Resume In-Person Services at Local Social Security Offices

 

NEWS

 

Disagreement and Delay: How Infighting Over the Border Divided the White House

NYT: The C.D.C. finally announced at the beginning of April that it would lift its public health border restrictions on May 23, around the time of the year when migration typically increases. But this past week, the issue of Title 42 flared up again as Senate Republicans and some Democrats in Congress held up Covid funding in an effort to protest the administration’s decision to lift the health rule and tensions over the issue flared in both parties. See also The Democratic revolt over Biden’s border policy.

 

Senators to restart bipartisan immigration reform talks

Hill: Sens. Thom Tillis (R-N.C.) and Dick Durbin (D-Ill.) told The Hill that they want to bring together a group of senators interested in trying to revive immigration discussions — a perennial policy white whale for Congress — after a two-week recess.

 

Immigrant rights groups say ICE’s no visitation policy taking toll on detainees’ mental health

NPR: Visitations at federal and state prisons have largely resumed. Last year, for example, the Washington state Department of Corrections determined it was safe to reinstate visitations. But those who want to talk to loved ones in ICE detention must still rely on old-fashioned phone calls or video.

 

As Haitian migration routes change, compassion is tested in Florida Keys

WaPo: Although the Florida Keys have been an entry point for refugees fleeing communist Cuba since the 1960s, officials say the increase in arrivals of migrants by boat represents a shift in migration patterns. Since the start of the year, more than 800 Haitians have landed in the 113-mile-long Florida Keys, made up 1,700 small islands. Two of the landings occurred in Ocean Reef, an exclusive gated community near Key Largo that is home to some of nation’s wealthiest residents, officials said.

 

Cubans arriving in record numbers along Mexico border

WaPo: Cuban migrants are coming to the United States in the highest numbers since the 1980 Mariel boatlift, arriving this time across the U.S. southern land border, not by sea.

 

Thousands of Ukrainian refugees arrive at U.S.-Mexico Border

NPR: Thousands of Ukrainians fleeing the war have come to the U.S.-Mexico border in Tijuana, where immigration agents are letting them into the U.S. on humanitarian grounds. See also Even with ties, Ukrainian families struggle to reach the United States.

 

Texas takes new border action; ex-Trump officials want more

AP: Texas Gov. Greg Abbott on Wednesday delivered new orders along the U.S.-Mexico border and promised more to come as former Trump administration officials press him to declare an “invasion” and give state troopers and National Guard members authority to turn back migrants.

 

LITIGATION & AGENCY UPDATES

 

CA2 blocks disclosure of docs on immigrant terrorist screenings

Reuters: U.S. appeals court on Wednesday said federal agencies properly withheld documents related to how they vet applicants for immigration benefits with the aim of uncovering possible terrorist ties, reversing a judge who ordered their disclosure.

 

3rd Circ. Says India Native’s Persecution Claims Inconsistent

Law360: The Third Circuit declined to halt the deportation of a man from India claiming he suffered political persecution there, reasoning that the immigration judge was correctly skeptical of his inconsistent accounts of the violence he claimed to have experienced.

 

CA5 on Unable or Unwilling to Control Persecutors

CA5: [W]hether an applicant’s subjective belief that authorities would be unwilling or unable to help them is sufficient for asylum eligibility when paired with country condition evidence supporting that belief, notwithstanding that the underlying events do not support that conclusion. We think not… When  she checked in, the police informed her “that the process would take at least two weeks.” She fled before those two weeks expired, and there is no evidence of  what  happened  with  the  claim.  Thus,  the  evidence  supports  the  BIA’s  finding  that  Sanchez-Amador  “successfully  reported  one  incident  with  the  gang member to the police, but did not pursue the issue.”

 

CA5 Equitable Tolling Remand: Boch-Saban V. Garland

LexisNexis: “Petitioner Jose Santos Boch-Saban, a citizen of Guatemala, seeks review of a Board of Immigration Appeals decision dismissing, as untimely, his appeal of an immigration judge’s order denying, as time and number barred, his motion to reopen and dismiss. We VACATE the Board’s decision and REMAND the case for consideration in the first instance of the issue of equitable tolling.”

 

Al Otro Lado Class Action Notice of Preliminary Injunction

DHS: Al Otro Lado v. Mayorkas is a lawsuit that relates to the U.S. government’s use of “metering” at land  ports  of  entry  on  the  U.S.-Mexico  border.    The  Court  in  this  lawsuit  issued a Preliminary Injunction(PI) prohibiting the U.S. government from applying a rule known as the “third-country transit rule”(TCT)to certain people who were subject to “metering” before the rule took effect on July 16, 2019.

 

Pennsylvania State Police settle profiling, immigration suit

AP: Pennsylvania State Police settled a federal lawsuit alleging troopers routinely and improperly tried to enforce federal immigration law by pulling over Hispanic motorists on the basis of how they looked and detaining those suspected of being in the U.S. illegally, officials announced Wednesday.

 

11 Set Up Hundreds of Sham Marriages for Green Card Seekers, U.S. Says

NYT: Clients paid fees up to $30,000 as part of the yearslong scheme, an affidavit said. Some applications falsely claimed the clients had been abused by their spouses, prosecutors said.

 

San Antonio To Pay Texas $300K To End ‘Sanctuary City’ Fight

Law360: The city of San Antonio, Texas, has agreed to pay the state $300,000 to settle both allegations lodged by the state’s attorney general that it was violating the state’s “anti-sanctuary city law,” and a subsequent lawsuit seeking to remove the police chief from office for the alleged violations.

 

Banned Travelers Ask Judge To Revisit Dead Visa Applications

Law360: People who were banned from the U.S. under now-defunct Trump-era travel restrictions urged a California federal judge to order the Biden administration to revisit their denied visa applications, saying the administration’s attempts to redress the harm don’t go far enough.

 

Feds Keep Diversity Visa Order Paused, But Must Update Tech

Law360: A D.C. federal judge extended the stay of his order directing the State Department to issue more than 9,000 diversity visas while the Biden administration appeals to the D.C. Circuit, but he unfroze his directive for the department to update the technology for processing the visas.

 

House Committee Advances Bill Slashing Visa Country Caps

Law360: The House Judiciary Committee voted to advance a bill that would eliminate the Immigration and Nationality Act’s per-country cap for employment-based visas and raise similar caps on family-based visas, aimed at trimming immigration backlogs.

 

CDC Provides Public Health Determination and Order on Termination of Title 42

AILA: On 4/1/22, CDC released an order to terminate its Title 42 public health order on 5/23/22. The document assesses the current state of the COVID-19 pandemic, provides legal considerations, and describes plans for DHS to mitigate COVID-19 and resume use of Title 8. (87 FR 19941, 4/6/22)

 

CBP Issues Memo on Title 42 Exceptions for Ukrainian Nationals

AILA: On 3/11/22, CBP issued a memo to its Office of Field Operations stating that noncitizens in possession of a valid Ukrainian passport or other valid Ukrainian identity document, and absent national security or public safety risk factors, may be considered for exception from Title 42.

 

USCIS Extends EADs for Certain TPS Syria Beneficiaries

AILA: USCIS is issuing individual notices to certain TPS Syria beneficiaries whose applications to renew Form I-766 are pending. The notices extend the validity of their EADs until September 24, 2022. Guidance on filing Form I-9 is available.

 

DHS/CBP/PIA-072 Unified Immigration Portal (UIP)

DHS: The U.S. Customs and Border Protection (CBP) Unified Immigration Portal (UIP) provides agencies involved in the immigration process a means to view and access certain information from each of the respective agencies from a single portal in near real time (as the information is entered into the source systems). CBP is publishing this Privacy Impact Assessment (PIA) to provide notice of implementation of the UIP and assess the privacy risks and mitigations for the UIP.

 

USCIS Implements Risk-Based Approach for Conditional Permanent Resident Interviews

USCIS: U.S. Citizenship and Immigration Services (USCIS) today announced a policy update to adopt a risk-based approach when waiving interviews for conditional permanent residents (CPR) who have filed a petition to remove the conditions on their permanent resident status.

 

Request for Comments: Form G-639; Online FOIA Request: Due 5/5/22.

 

RESOURCES

 

GENERAL RESOURCES

 

EVENTS

 

NIJC EVENTS

 

GENERAL EVENTS

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

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

www.immigrantjustice.org | Facebook | Twitter

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

As always, thanks Elizabeth. 

Sanchez-Amador v. Garland — The 5th Circuit Goes Off The Rails Again To Threaten Refugee Women of Color!

https://www.ca5.uscourts.gov/opinions/pub/20/20-60367-CV0.pdf

The issue in Sanchez-Amador is whether a reasonable person in her position would believe that the Government of Honduras is “unwilling or unable” to protect her. On the facts set forth in the court’s decision, any reasonable person in her position would hold such a objectively reasonable view. Therefore asylum should have been granted.

For some context, Honduras has one of the highest femicide rates in the world. Indeed, it is “one of the most dangerous places in the world to be a woman.” See, e.g., https://news.sky.com/story/the-most-dangerous-place-in-the-world-to-be-a-woman-11950981

The Honduran Government is so totally corrupt, inept, and disinterested in protecting its citizens, particularly women, that recent past “President Juan Orlando Hernandez [is] on the United States’ Corrupt and Undemocratic Actors list, under Section 353 of the United States–Northern Triangle Enhanced Engagement Act.” https://www.state.gov/u-s-actions-against-former-honduran-president-juan-orlando-hernandez-for-corruption/

Ricardo Zuniga, the U.S. Special Envoy to Central America recently said: “‘All we’re trying to do now is halt the slide’ of democracy and accountability, Zúniga said in an interview with The [L.A.] Times, ‘so that we can have some place to build from.’” https://apple.news/A9FpzsjRAQ2OoAyQZzHZm1A. 

In other words, any a semblance of the rule of law and honest, minimally effective government in the Northern Triangle has long disappeared. Conditions are rapidly getting worse, rather than better. Conditions are so bad, that a better Administration or a better BIA could probably establish a “rebuttable presumption of failure of state protection in the Northern Triangle,” thus properly shifting to the DHS the burden of establishing, against all odds, that “state protection” against gangs and other basically uncontrolled third-party actors would actually be effective in a particular case.

This common sense action would also facilitate rapid, efficient, consistent, and correct approval of many credible, valid asylum claims now stuck in the endless, largely self-inflicted, backlogs at the Asylum Office and in Garland’s dysfunctional courts, not to mention at the border following two years of illegal suspension of our asylum laws. That’s as opposed to the unseemly “Institutionalized Refugee Roulette” now being played by Garland and his subordinates.

According to the Supremes in Cardoza-Fonseca and the BIA itself in Matter of Mogharrabi, asylum law is supposed to be generously applied to grant protection even where persecution, although reasonably possible, is significantly less than likely. But, in Garland’s dysfunctional “courts,” the current reality for vulnerable asylum seekers has moved far, far away from those supposed “norms.”

Although most asylum applicants come from nations with well-established records of serious endemic human rights abuses, “asylum denial rates” at EOIR range from 10% or less to a beyond outrageous 98% or more denials! Cases with basically the same facts might be routinely granted in one courtroom while being uniformly denied, usually for specious reasons, in the next.

Moreover, while the overall nationwide grant rate of around 37% appears unreasonably low but perhaps still within the outer bounds of “plausibility,” most of those grants are “concentrated” in a relatively small number of Immigration Courts, basically in the Northeast and in California. A disturbing number of IJs and courts are allowed, perhaps even encouraged, by Garland and his denial-oriented, Trump-holdover BIA to establish “asylum free zones.” In other words, Garland has looked the other way while some of “his courts” have basically become de facto “asylum death squads.”

Back to Ms. Sanchez-Amador. Under the circumstances shown by Ms. Sanchez-Amador, a “reasonable woman” would not expect any effective protection from the Honduran Government. The respondent has shown that her “expectation of no protection” was “fulfilled” in this case.

The respondent credibly testified that a gang member said she had a week to either pay him money or become “his woman,” join the gang, and have involuntary sex with him, that is, he threatened to rape her. When she dutifully reported this to the police (despite their well-deserved reputation for indifference to attacks on women), she was told that they would investigate but that it would take two weeks, and offered her no other protection or options in the interim.

In other words, in response to an imminent, credible threat of harm, the police told the respondent that they would do nothing to stop the harm that would be inflicted upon her in a week. By the time the police “investigated,” assuming they ever did which seems doubtful in light of conditions in Honduras, the respondent would be either extorted or raped and forced to join a gang against her will. While police in Honduras might have a well-deserved reputation for corruption and ineffectiveness, gangs, on the other hand, have a reputation for being ready, willing, and able to carry out their threats against women, usually with impunity.

Elementary asylum law tells us that it is neither reasonable nor required that a refugee wait to actually be persecuted before fleeing to safety. That’s exactly what a “well-founded fear” is!

Yet a panel of male, right-wing judges of the Fifth Circuit nonsensically and disingenuously concludes that “one would be hard-pressed to find that the authorities were unable or unwilling to help her [because] she never gave them the opportunity to do so.” Poppycock! 

The police failed to offer the respondent any semblance of effective protection. Given the conditions in Honduras, and the credible threats the respondent had received, a reasonable woman in the respondent’s position would flee to safety at the first opportunity rather than waiting for the gang to carry out its credible threat of harm and for the police to, perhaps, but likely not, investigate after the fact!

Indeed, it’s no stretch to say that under the facts of this case, NO reasonable woman would have remained in Honduras if able to escape.  Moreover, NO reasonable factfinder would conclude that she lacked a reasonable possibility of persecution there!

The panel judges have perverted, perhaps intentionally, the criteria for asylum, the standard for review, and misconstrued the record to deny legal protection to this refugee woman. But, there is an even deeper problem here. And, it goes to Attorney General Garland and his mismanagement of the entire, broken Immigration Court system.

I daresay that NO asylum expert would have handled this potentially perfectly grantable case the way this Immigration Judge and the BIA did. This whole process documents an ongoing, biased, unprofessional, designed-to-deny asylum system that unfairly attacks and threatens “the most vulnerable among us” — targeting women of color in a particularly racist-misogynistic way!

I hope that this particular example of injustice, inhumanity, and unprofessionalism at all levels of the judiciary isn’t what awaits long suffering asylum seekers if and when the Administration finally lifts the illegal “Title 42 Blockade/Charade” on May 23. But, I have little reason for optimism. 

Beyond long overdue reversals of several Sessions/Barr bogus anti-asylum, anti-immigrant “precedents,” neither Garland or Mayorkas has shown much inclination to actually get asylum law right. Nor have they empowered or employed the human rights and due process experts who could lead them out of the wilderness in which their entire “denial and deterrence-oriented” system now wanders.

Perhaps ironically, the all-too-often lawless Fifth Circuit refuses to acknowledge even those modest actions by Garland to correct the law, notwithstanding the supposed “great deference” they claim to show the Executive in the area of immigration. Like much that the Fifth Circuit does these days, that “deference” appears reserved for White men and is not applied to vindicate the rights of “persons” who happen to be migrants, women, or people of color.

“Dred Scottification” of “the other” is NOT a legitimate legal theory. No, it’s part of the “anti-democracy activism” that threatens to destroy our legal system and take our nation down with it! ☠️

🇺🇸Due Process Forever!

PWS

04-12-22

⚖️👩🏽‍⚖️👨🏼‍⚖️⚔️🛡LATEST ROUND TABLE AMICUS BRIEF FOCUSES ON GENDER-BASED PSG! — Chavez-Chilel v. A.G., 3rd Cir., Petition For Rehearing

Hon. Susan G. Roy
Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

 

Hon. “Sir Jeffrey” Chase reports:

The attached is the final “as filed” version of our latest brief in Chavez-Chilel v. Garland, in support of the motion for rehearing/rehearing en banc.  This one is very “all in the family,” as Sue Roy is our counsel, Sue and I drafted the brief, and decisions from Miriam Hayward and Charles Honeyman are attached as exhibits.

There is also an amicus brief by law school professors, and joining NJ attorney Ted Murphy as petitioner’s counsel is Paul Hughes, who argued Kisor v. Willkie before the Supreme Court (as well a Nasrallah v. Barr, a Supreme Court victory in which we were amici).

Best, Jeff

Chavez-chilel RT amicus FINAL

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

Thanks to our wonderful colleague Judge Sue Roy for taking the lead on this!

🇺🇸Due Process Forever!

PWS

03-31-22

⚖️10TH CIR. SAYS TRANSGENDER WOMEN FACE “PATTERN OR PRACTICE OF PERSECUTION” IN HONDURAS — Gonzalez Aguilar v. Garland — Latest Setback For Garland’s “Asylum Deniers’ Club” (A/K/A “BIA”)!👎🏽 “Refugee Roulette” ☠️⚰️  The “Order Of The Day” @ Garland’s Dysfunctional & Unjust DOJ!

Dan Kowalski reports for LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca10-2-1-on-honduras-transgender-women-gonzalez-aguilar-v-garland

Immigration Law

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Daniel M. Kowalski

29 Mar 2022

CA10 (2-1) on Honduras, Transgender Women: Gonzalez Aguilar v. Garland

Gonzalez Aguilar v. Garland

“Kelly Gonzalez Aguilar is a transgender woman from Honduras. She came to the United States and applied for asylum, withholding of removal, and deferral of removal. In support, Kelly claimed • past persecution in Honduras from her uncle’s abuse, • fear of future persecution from pervasive discrimination and violence against transgender women in Honduras, and • likely torture upon return to Honduras. The immigration judge denied the applications and ordered removal to Honduras. In denying asylum, the immigration judge found no pattern or practice of persecution. Kelly appealed the denial of each application, and the Board of Immigration Appeals dismissed the appeal. The dismissal led Kelly to petition for judicial review. We grant the petition. On the asylum claim, any reasonable adjudicator would be compelled to find a pattern or practice of persecution against transgender women in Honduras.”

[Hats off to Nicole Henning, Tania Linares Garcia and Keren Hart Zwick!  And…nota bene…this PFR was filed in 2018!]

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Imagine what it would be like if we had an AG with the guts and decency to appoint a BIA of real judges — asylum experts who would adhere to due process and fairly, properly, and consistently interpret asylum laws rather than spewing out specious, life-destroying, bogus denials? Backlogs might even start decreasing!

Remarkably, even the Trump-appointed dissenting Circuit Judge Joel M. Carson concedes that EOIR easily could have decided this case in favor for the respondent and perhaps should have. 

No doubt a person could view the record before us differently—the majority does so today—and I might on de novo review.

He then willingly gets lost in a forest of bogus reasons for abusing “standards of review” as an excuse for Article III Judges to avoid responsibility for life-threatening miscarriages of justice.

In stark terms, a reasonable judge could have saved this respondent and probably should have. But, this IJ and the BIA chose not to. So, who cares because it’s only a brown-skinned asylum seeker whose life is so insignificant that we should relegate it to the realm of chance and happenstance. Next case, please!

Asylum law, according to the Supremes in Cardoza-Fonseca is supposed to be interpreted generously in favor of protection. If legal protection from persecution or death is one possible outcome, it should be the the only acceptable outcome! Saying that some humans should potentially die while others be protected basically depending on a Federal Judge’s personal philosophy and mood on a particular day isn’t just legally wrong and a denial of due process and equal protection — it’s immoral!

The point is obvious. Better qualified judges at the BIA would put an end to this treatment of life or death decisions as a “crap shoot” — dependent on which IJ is drawn, the composition of the BIA “panel,” the Federal Circuit in which the case arises, the “luck of the draw” on the Circuit panel, and probably the “day of the week.” This is no way to run a justice system. And, Garland and his complicit lieutenants know that!

A better AG would long ago have installed a better BIA. It’s classic “Refugee Roulette” ☠️⚰️ being promoted by a Dem Administration! Instead of putting an end to this disgraceful “intellectual game of chance with human lives” being played by ivory tower bureaucrats and judges who have “immunized” themselves from the traumatic real life consequences of their bad decisions, Garland has chosen to “play along” 

I’m not the only one to express frustration with Garland’s failure to do his job, to prioritize accountability, and to take justice, human lives, and the rule of law seriously! See, e.g., https://www.huffpost.com/entry/merrick-garland-justice-department-contempt-charges-lag-capitol-riot-investigation_n_62427a3ae4b0e44de9b8451f

When he’s not carrying out Stephen Miller’s anti-asylum policies @ EOIR with Miller’s holdover acolytes  as “judges” and “senior executives,” Garland is busy helping Trump and his fellow GOP insurrectionists “run out the clock” on the House Jan. 6 Panel!

🇺🇸Due Process Forever!

PWS

03-30-22

🚂🛤GARLAND’S DEPORTATION RAILROAD KEEPS ROLLIN’ — WITH A LITTLE HELP FROM TWO GOP JUDGES IN 4TH — Mejia-Velasquez v. Garland — After 6 Years, 3 Flawed Tribunals, A Woman Claiming Politically-Motivated Gang Abuse In Honduras Sent Packing Back To Danger & Corruption Without A Merits Hearing!

 

Train
Train
Dennis Adams, Federal Highway Administration; levels adjustment applied by Hohum
Public domain. — Garland’s Deportation Railway retains most of his predecessors’ engineers, conductors, and crew.  It’s often slow, unreliable, erratic, and subject to arbitrary unannounced schedule changes. It continues to bypass “Due Processville” and “Fundamental Fairness City.”

 

https://www.ca4.uscourts.gov/opinions/201192.P.pdf

Mejia-Velasquez v. Garland, 4th Cir., 02-16-22, published

PANEL: NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.

OPINION BY: Judge Niemeyer

DISSENT: Judge Motz

KEY QUOTE FROM DISSENT:

Under the current immigration statutes, DHS has good reason to require applicants for relief from removal to submit fingerprints and other biometrics. But before DHS does so, it must first comply with specified notice obligations. Where, as here, DHS fails to do so, I would not fault the applicant. As the Supreme Court explained in Niz-Chavez, “[i]f men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.” 141 S. Ct. at 1486.

I respectfully dissent.

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

The IJ and the BIA relied on a wrong BIA precedent. The 4th Circuit majority judges recognized its incorrectness, but took OIL’s invitation to fashion another rationale for denying this asylum applicant a hearing on the merits of her life or death claim. While the respondent was represented by counsel, the disputed “warnings” and dialogue relating to the missing biometrics were not translated into Spanish, the only language she understood.

While this case was pending, USCIS finally delivered the long and inexplicably delayed biometrics appointment letter to the respondent. But, that made no difference to a group of judges anxious to railroad her back to Honduras (one of the most dangerous and thoroughly corrupt countries in the hemisphere) without a meaningful chance to be heard.

With a dose of macabre ☠️ irony, the 4th Circuit’s tone-deaf decision came just as the US was requesting extradition of former Honduran President, and Obama and Trump Administrations’ buddy, Juan Orlando Hernández on drug trafficking charges! https://lawprofessors.typepad.com/immigration/2022/02/violence-in-honduras-tied-to-ex-president-now-arrested.html

Of all the Federal Judges who looked at this case over the years, only Judge Motz was interested in providing the respondent a due process hearing on her life-determining claim. The rest evidently were more fixated on creating reasons for NOT hearing her case. With the same amount of judicial and litigation effort, likely less, the respondent probably could have received a due process hearing on the merits of her claim. Additionally, there would have been consequences for the BIA’s defective “good enough for government work” precedent.

Of course, like Garland, none of the exalted judges involved in this disgraceful dereliction of duty have actually represented an asylum applicant in Immigration Court and had to deal with the confusing, convoluted, backlogged, and often notoriously screwed up DHS/EOIR biometrics process. See, e.g., “USCIS Biometrics Appointment Backlog,” https://www.stilt.com/blog/2021/02/biometrics-appointment-backlog/.

I suspect that folks contesting a parking ticket get more consideration in our system than this asylum applicant got from Garland’s unfair and dysfunctional Immigration Courts and the OIL lawyers who defend these mis-handled cases. And, in the world of “refugee roulette,” where human lives are treated like lottery tickets, a different Circuit panel of judges might have joined Judge Motz in getting it right.

The problem starts with EOIR — tribunals that receive deference without earning it through expertise, quality scholarship, and prioritizing due process, fundamental fairness, and best practices. It’s aggravated and multiplied by Garland — an Attorney General indifferent to injustice and the trail of broken lives and dashed hopes left in its wake. And, it’s aided, abetted, and enabled by judges like the panel majority here, who can’t be troubled with the hard work of understanding the consequences of their dilatory approach and demanding fair, competent, and reasonable expert judging from EOIR.

As several of my colleagues have said about the broken, dysfunctional, unfair Immigration Court system, the haphazard review by some Circuit Courts, and the disturbing systemic lack of judicial courage when it comes to fairly applying the Due Process Clause of our Constitution to migrants of color: “The cruelty is the point.”

It’s also worthy of note that the failure of all the Federal Judges, save Judge  Motz, to make any meaningful inquiry into the respondent’s clearly expressed fear of return to Honduras appears to violate mandatory requirements for withholding of removal under the INA and international conventions. Perhaps that’s not surprising as Federal Judges have allowed Garland, Mayorkas, and their predecessors to use the transparent pretext of “Title 42” to systemically violate the legal and human rights of refugees at our borders — every day!

It’s also worth putting into context the Biden Administration’s continuing pontification about the human rights of Ughyurs, Afghans, women, and other persecuted minorities, as well as their professed commitment to racial justice in the U.S., which has not been matched by actions. Indeed, the Biden Administration’s actual approach to human rights looks much more like “Miller Lite Time” than it does a courageous, competent, and fair reinstitution of the rule of law!

According to recent reports, many of the Ughyurs and Afghans who were fortunate enough to reach the U.S. and avoid arbitrary “turn backs” at our borders, are now mired in the endless, mindless Mayorkas/Garland bureaucracy that masquerades as an “asylum system” — subject to long waits, missing work authorizations, and sometimes arbitrary and secretive “denials” blasted by human rights advocates. In a functional system these would be the “low hanging fruit” that could rapidly be removed from limbo and given the ability to fully function in our society. But, not in the “Amateur Night at the Bijou” atmosphere fostered by Mayorkas and Garland.

The “strict enforcement” of regulatory requirements on the respondent in this case stands in remarkable contrast with the lackadaisical “good enough for government work” approach of Garland’s BIA and DOJ to the Government’s intentional non-compliance with the statutory requirements for a Notice to Appear (“NTA”).  See, e.g., https://immigrationcourtside.com/2022/02/01/%f0%9f%97%bd%e2%9a%96%ef%b8%8fhon-jeffrey-chase-garland-bias-double-standard-strict-compliance-for-respondents-good-enough-for-govern/ Talk about “double standards” at Garland’s DOJ!

🇺🇸 Due Process Forever!

PWS

02-16-22

🔮PROPHETS: MORE THAN SEVEN MONTHS AGO, “SIR JEFFREY”🛡 & I SAID IT WOULD TAKE MORE THAN HOLLOW PROMISES IN AN E.O. TO BRING JUSTICE  FOR VICTIMS OF GENDER VIOLENCE! — Sadly, We Were “Right On” As This Timely Lament From CGRS Shows!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

The problem is very obvious: The “practical scholars” and widely respected international experts in asylum law who should be drafting gender-based regs and issuing precedents as appellate judges @ EOIR remain “frozen out” by Garland and the Biden Administration. Meanwhile, those who helped carry out the Miller/Sessions misogynistic policies of eradicating asylum protection for women of color not only remain on the bench but still empowered by Garland to issue controlling interpretations of asylum law. 

https://cgrs.uchastings.edu/sites/default/files/Deadly%20Inertia%20-%20PSG%20Regs%20Guide_Feb.%202022.pdf

Deadly Inertia: Needless Delay of “Particular Social Group” Regulations Puts Asylum Seekers at Risk

February 10, 2022

On February 2, 2021, President Biden issued an executive order (“EO”) which directed executive branch agencies to review and then take action on numerous aspects of our shattered asylum system.1 Of particular interest to the Center for Gender & Refugee Studies (CGRS), and many asylum seekers, legal experts, and allies, was a provision ordering the Departments of Justice and Homeland Security to conduct a comprehensive examination of whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule on the meaning of “particular social group,” as that term is derived from international law (emphasis added).2

The deadlines set by the President – August 1, 2021 for the examination of current law on domestic violence and gang claims, and October 30, 2021 for the proposed regulations on particular social group – have come and gone. We are concerned that the administration has offered no indication of its progress on what should be a simple task, given that international law and authoritative international standards on particular social group are clear.3

This reference guide explains why regulations on particular social group are important, why this legal issue has become so contentious, and why there is no good reason for the delay in proposing regulations. We point out that there is a clear path forward for the United States to realign its treatment of asylum claims with established international standards, which is precisely what the EO mandates.

Why are regulations on particular social group important?

While “particular social group” may sound like an arcane topic in the notoriously complex area of asylum law, there is a reason it merited the President’s attention in an EO signed just two weeks after he took office.4 Persecution on the basis of membership in a particular social group is one of only five grounds for refugee status in U.S. and international law and has become the most hotly contested asylum law issue in the United States.

Why has particular social group jurisprudence become so contentious in the United States?

First, the phrase “particular social group” is less intuitively clear than the other grounds for asylum of race, religion, nationality, and political opinion. This ground is understood to reflect a desire on the part of the treaty drafters – and U.S. legislators who incorporated the international refugee definition into our own immigration law – to protect those who don’t fit neatly into the other four categories, and to allow asylum protection to evolve in line with our understanding of human rights. Such refugees might include, for example, women fleeing domestic violence, or LGBTQ+ people persecuted because they do not conform to social norms regarding sexual orientation or gender identity. They might be people fleeing violent retaliation by criminal gangs because they

200 McAllister Street | San Francisco, CA 94102 | http://cgrs.uchastings.edu

reported a crime or testified against a gang member. Or they might simply be related to someone who has defied a gang, and that alone makes them a target.

These people are clearly facing enormous harm, and equally clearly belong to a particular social group under a correct interpretation of the law. 5 But merely belonging to a particular social group does not result in being granted asylum. Only if a person meets all the other elements of the refugee definition, including the heavy burden of showing their group membership is a central reason they will be targeted, will they obtain protection in the United States.

Second, some policymakers and adjudicators fear that if particular social group claims qualify for protection, the “floodgates” will open. The Department of Justice’s Board of Immigration Appeals (BIA) established the legal test for particular social group in 1985 in Matter of Acosta (see below).6 But beginning in 2006, the BIA altered the Acosta test by imposing additional requirements that are nearly impossible to meet.7 The result is that with only one exception, no new particular social groups from any country, no matter how defined, have been accepted in a published BIA decision since that time.

But there is no evidence to support the “floodgates” concern. Decades ago, when women who fled female genital cutting/mutilation were first recognized as a particular social group, some people argued that the United States would be inundated with such claims.8 Those fears never materialized. History shows, and the governments of both the United States and Canada acknowledged at the time, that acceptance of social group claims does not lead to a skyrocketing number of applicants.9

Third, asylum law, including the legal interpretation of particular social group, has been politicized. As part of an overtly anti-immigrant agenda, some politicians have seized upon the floodgates myth to promote increasingly restrictive policies and legal interpretations that depart from international standards. Politically oriented interference with asylum law reached new lows under the previous administration, most notably in 2018 when former Attorney General Sessions overruled his own BIA to issue his unconscionable decision in Matter of A-B-.10

Matter of A-B- was so widely reviled and justly condemned that all major Democratic candidates seeking their party’s presidential nomination in the last election promised to reverse the decision. Doing so was part of candidate Biden’s campaign platform.11 As President he made good on this promise by including the legal questions of domestic violence, gang brutality, and particular social group in the February 2021 EO.

Furthermore, and very much to his credit, Attorney General Garland granted CGRS’s request as counsel to vacate Matter of A-B- in June 2021.12 The law now stands as it did before Sessions’ unlawful interference, with the key precedent case Matter of A-R-C-G-13 recognizing a certain defined particular social group that may provide the basis for asylum for some domestic violence survivors.

However, as explained above, the problem goes beyond Sessions’ decision in Matter of A-B- and stretches back at least as far as 2006, when the BIA began to encumber particular social group claims with additional legal hurdles. As correctly noted in the EO, it is necessary to assess whether U.S. law concerning not only domestic and gang violence claims, but all claims based on particular

2

social group, is consistent with international law. Fortunately there is ample international guidance, which is itself largely based on Acosta, on this exact question.

So why the delay in proposing new regulations?

We can think of no good reason for the agencies’ delay in proposing new regulations on particular social group. From the perspective of both binding international law and authoritative international standards, each of which are named as the framework for particular social group regulations in the EO, the legal analysis is not at all complicated.

To begin with, this is not a new area of the law. The Convention Relating to the Status of Refugees, the source of the refugee definition in which the phrase appears, was drafted in 1951. Our domestic law followed suit in the 1980 Refugee Act. As noted above, the key BIA precedent case interpreting particular social group, Matter of Acosta, was decided in 1985.14 The UN Refugee Agency’s (UNHCR) guidelines on particular social group, which adopt Matter of Acosta, were issued 20 years ago, in 2002.15

Making the job of proposing regulations even simpler, international guidance is clear. It is critical to note that as an inter-governmental organization, UNHCR routinely takes the concerns of governments, including the United States, into account in crafting its legal advice. UNHCR’s guidelines on particular social group were drafted only after a thorough review of State practice, including U.S. law, and an extensive process of external expert consultations with government officials and judges in their personal capacities, academics, and practitioners.16 The consultations process began with a discussion paper on particular social group drafted by a leading U.S. scholar who had previously served as Immigration and Naturalization Service General Counsel.17

How should the United States interpret particular social group to be consistent with international law?

The United States should adopt the “immutability” standard that the BIA set forth in Matter of Acosta, with an alternative – not additional – test of “social perception” which was initially developed by courts in Australia.18 The Acosta test rests on the existence of immutable or fundamental characteristics such as gender to determine whether there is a particular social group. What must be discarded are the BIA’s extraneous requirements of “particularity” and “social distinction.” They have no basis in international law, are not consistent with international standards, are not compelled by the text of the statute, and are not coherent or internally logical. They have themselves spawned an enormous number of confused and confusing cases, including at the federal courts of appeals level, as judges attempt to apply them to real world cases.19

Key Democratic members of Congress with deep knowledge on refugee issues have taken this position, which is consistent with UNHCR’s views. The Refugee Protection Act of 2019, for example, reflects international guidance in its clarification of particular social group.20 Then-Senator Kamala Harris was one of the bill’s original cosponsors.

Additionally, in response to the EO, U.S. and international legal experts have explained that Matter of Acosta provided a workable test, that the BIA’s additional requirements distorted U.S. law in violation

3

of international standards, and that a return to Acosta would be consistent with international standards and offer an interpretation most faithful to the statutory text.21

Why does it matter?

Lives hang in the balance. Women who have survived domestic violence, and all other asylum applicants who must rely on the particular social group ground, are stuck on a deeply unfair playing field. Existing law, even with the vacatur of Matter of A-B-, gives far too much leeway for judges to say no to valid claims. For people wrongly denied protection, deportation can be a death sentence.22

We are concerned that the delay in proposing particular social group regulations reflects an unwillingness on the part of some key actors within the administration to accept that the United States is bound by international law and should realign itself with international standards. The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

1 Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Feb. 2, 2021, 86 Fed. Reg. 8267 (Feb. 5, 2021).

3 Instead, on the one-year anniversary of the EO, USCIS Director Ur Jaddou held a virtual briefing on USCIS’s progress on this and three other immigration-related EOs, but provided no substantive details.

4 The EO otherwise encompasses the enormous operational, logistical, foreign policy, development, and other challenges required to create a comprehensive regional framework to address root causes, manage migration throughout North and Central America, and provide safe and orderly processing of asylum seekers at the U.S. border.

5 For example, when Harold Koh, a senior State Department advisor, resigned in October 2021 in protest over the expulsion of Haitian and other asylum seekers, he wrote: “Persons targeted by Haitian gangs could easily have asylum claims as persons with well-founded fears of persecution because of their membership in a ‘particular social group’ for purposes of the Refugee Convention and its implementing statute. Indeed, this is precisely the issue that faces the interagency group on joint DOJ/DHS rulemaking pursuant to President Biden’s February 2, 2021 Executive Order, which directed examination of whether

 2 EO, Sec. 4(c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall:

(i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in

8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

 4

 the United States is providing appropriate asylum protection for those fleeing domestic or gang violence in a manner consistent with international standards.’” See https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000.

6 19 I&N Dec. 211 (BIA 1985).

7 Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, May 28,

2021, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. 8 Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

9 Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 132-133 (2007), available at: https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1560&context=faculty_scholarship.

10 27 I&N Dec. 316 (A.G. 2018). The applicant was a domestic violence survivor whose asylum claim based on particular social group had been granted by the BIA.

11 “The Trump Administration has … drastically restrict[ed] access to asylum in the U.S., including … attempting to prevent victims of gang and domestic violence from receiving asylum [.] Biden will end these policies [.]” See https://joebiden.com/immigration/.

12 28 I&N Dec. 307 (A.G. 2021). He also vacated other problematic decisions that touched on particular social group and gender claims. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021); Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021).

13 26 I&N Dec. 388 (BIA 2014). 14 19 I&N Dec. 211 (BIA 1985).

15 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, available at: https://www.refworld.org/docid/3d36f23f4.html.

16 UNHCR, Global Consultations on International Protection, Update Oct. 2001, available at: https://www.unhcr.org/3b83c8e74.pdf.

17 T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group’”, in Refugee Protection in International Law: UNHCR’s Global Consultations on International

Protection (Feller, Türk and Nicholson, eds., 2003), available at: https://www.refworld.org/docid/470a33b30.html.

18 This is the approach recommended by UNHCR, n.15 above.

19 Legomsky and Musalo, Asylum and the Three Little Words that Can Spell Life or Death, n. 7 above, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. See also, Sabrineh Ardalan and Deborah Anker, Re-Setting Gender-Based Asylum Law, Harvard Law Review Blog, Dec. 30, 2021, available at: https://blog.harvardlawreview.org/re-setting-gender-based-asylum-law/.

21 Scholars letter to Attorney General Garland and DHS Secretary Mayorkas, June 16, 2021, available at: https://cgrs.uchastings.edu/sites/default/files/2021.06.16_PSG%20Scholars%20Letter.pdf. See also, letter to Attorney General Garland and DHS Secretary Mayorkas, May 27, 2021, signed by 100 legal scholars discussing the “state protection” element of the proposed regulations, available at: https://cgrs.uchastings.edu/sites/default/files/Law%20Scholars%20State%20Protection%20Letter%205.27.21%20%28FINAL%2 9.pdf.

22 When Deportation Is a Death Sentence, Sarah Stillman, The New Yorker, January 8, 2018, available at: https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.

             20 The Refugee Protection Act of 2019, Sec. 101(a)(C)(iii) reads: “the term ‘particular social group’ means, without any additional requirement not listed below, any group whose members—

(I) share—

(aa) a characteristic that is immutable or fundamental to identity, conscience, or the exercise of human rights; or (bb) a past experience or voluntary association that, due to its historical nature, cannot be changed; or

(II) are perceived as a group by society.”

See https://www.congress.gov/bill/116th-congress/senate-bill/2936/text?r=4&s=1#toc- idA272A477BC814410AB2FF0E6C99E522F.

      5

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“Sir Jeffrey and Me
“Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

You can check out what “Sir Jeffrey” and I had to say back in June 2021 here:

https://immigrationcourtside.com/2021/06/22/sir-jeffrey-chase-garlands-first-steps-to-eradicate-misogyny-anti-asylum-bias-eoir-are-totally-insufficient-without-progressive-personnel-changes/

Unfortunately, my commentary then remains largely true today:

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!

    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.

    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!

    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.

    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 

    • No regulation can bring decisional integrity and expertise to a body that lacks both!

As the CGRS cogently says at the end of the above posting:

The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

If you follow some of the abysmal anti-asylum, poorly reasoned, sloppy results still coming out of Garland’s BIA and how they are being mindlessly defended by his OIL, you know that a “principled application” of asylum law to protect rather than arbitrarily reject isn’t in the cards! Also, as I have pointed out, even if there were a well written reg on gender based asylum, you can bet that the “Miller Lite Holdover BIA” would come up with intentionally restrictive interpretations that many of the “Trump-era” IJs still packed into EOIR would happily apply to “get to no.” 

You don’t turn a “built and staffed to deny in support of a White Nationalist agenda agency” into a legitimate court system that will insure due process and fair treatment for asylum seekers without replacing judges and bringing in strong courageous progressive leaders.

That’s particularly true at the BIA, where harsh misapplications of asylum law to deny worthy cases has been “baked into the system” for years. And, without positive precedents from expert appellate judges committed to international principles and fair treatment of asylum seekers in the U.S., even a well-drafted reg won’t end “refugee roulette.” 

By this point, it should be clear that the Biden Administration’s intertwined commitments to racial justice and immigrant justice were campaign slogans, and not much more. So, it will be up to advocates in the NDPA to continue the “relentless fight” to force an unwilling Administration and a “contentedly dysfunctional” DOJ that sees equal justice and due process as “below the radar screen” to live up to the fundamental promises of American democracy that they actively betray every day!

🇺🇸Due Process Forever!

PWS

02-13-22

🏴‍☠️☠️⚰️GARLAND’S FAILURES LOOM LARGE AS EOIR’S ABUSES OF BLACK REFUGEES EMERGE! 🤮 —  Biased, Thinly Qualified “Judges” Fingered In HRF Report On Wrongful Returns To Cameroon Remain On Bench Under Garland — Anti-Asylum BIA & Ineffective Leadership From Trump Era Retained By Garland In EOIR Fiasco!

Kangaroos
What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

 

https://lawprofessors.typepad.com/immigration/2022/02/deported-cameroonian-asylum-seekers-suffer-serious-harm.html


From HRF:

. . . .

Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branchnot the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.

. . . .

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

The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.

For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.

Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!

How bad were things at EOIR? Judges who denied the most asylum cases were actually promoted to the BIA so they could spread their jaundiced views and anti-asylum bias nationwide. See, e.g.https://immigrationcourtside.com/2019/11/01/corrupted-courts-no-stranger-to-improper-politicized-hiring-directed-against-migrants-seeking-justice-the-doj-under-barr-doubles-down-on-biased-ideological-hiring-promot/

Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!

The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or  past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”

This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!

Unpacking
“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!”
“Unpacking”
Photo by John Keogh
Creative Commons License

All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!

🇺🇸Due Process Forever!

PWS

02-11-22

🇺🇸⚖️🗽ATTN NDPA: LAW YOU CAN USE: Hon. Jeffrey S. Chase’s “Practical Scholarship” Outs Garland BIA’s Disingenuous Approach To “Nexus” — Use These Arguments To Litigate Garland’s Dysfunctional “Denial Factory” To A Standstill!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

The Proper Test for Nexus

On November 4, the Board of Immigration Appeals issued its precedent decision in Matter of M-F-O-.1,2  At first glance, the decision seems to be a correction regarding  when the accrual of continuous presence for voluntary departure ends, necessitated by a Supreme Court decision rejecting  the Board’s prior take on the question.  The headnote summarizing the decision mentions only this issue.

However, reading further into the decision reveals an additional motive.  It turns out that the respondent in M-F-O- sought asylum; it was the denial of that protection that brought voluntary departure into play.  The respondent stated that he feared being persecuted by a violent  gang on account of his membership in a particular social group consisting of “indigenous Guatemalan youths who have abstained from joining the street gangs.”

The BIA uncharacteristically assumed the above group to be a valid one for asylum purposes.  In doing so, the Board was aware of proposed regulations being drafted by the Departments of Justice and Homeland Security, which are likely to create a more inclusive standard for particular social group determinations than that currently employed by the Board.

But in M-F-O-, the Board sought to make the point that even where such groups are legally recognized, no asylum will be forthcoming unless a nexus is found between the group membership and the harm.  And the Board in upholding the asylum denial in M-F-O- aimed to bolster a standard it has employed in recent years to make it remarkably easy to deny the existence of such a nexus.

Our asylum laws state that a nexus exists when persecution is “on account of” one of the five statutorily-protected grounds.3  Whether or not a nexus is found depends on what is meant by those three words.  Let’s therefore take a deeper dive into the meaning of that term.

The Traditional Standard 4

“On account of” is by no means a phrase specific to immigration law; it long predates the Refugee Act of 1980.  The Fifteenth Amendment of the U.S. Constitution, ratified in 1870, states in part that  “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  The Nineteenth Amendment, ratified in 1920, similarly prohibits denying or abridging one’s right to vote “on account of sex.”

As to how that term should be interpreted, the Supreme Court recently addressed the question outside of the asylum context in Bostock v. Clayton County,5  a case involving employment discrimination under Title VII of the 1964 Civil Rights Act.  The Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of.”6

The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test.  As the Court explained, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”7

The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”8  The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”9

According to the Court:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.10

The Court also provided a hypothetical:

Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.11

So under the Court’s hypothetical, any argument that the “real” or “primary” reason for terminating the employment was being a Yankees fan, and that the gender of the employee was merely “incidental” because women who aren’t Yankees fans aren’t fired, and in fact are treated equally as a group to men, is rejected because removing the gender of the Yankees fan from the equation brings about a different result.  Note that under this test, the question is not the general treatment of women, but rather the impact of being a woman on the treatment of the specific employee.  Also, the test does not require a test to determine the dominant reason for the unequal treatment; in the hypothetical, there was no concern over whether being a Yankees fan or a woman was the stronger motivation for the termination. This is in fact a clear standard that is easy to both understand and apply in practice.

The Asylum “One Central Reason” Standard

Let’s turn back to the asylum context.   In 2005, Congress included language in the REAL ID Act requiring a statutorily-protected ground to be “at least one central reason” for the persecution in order to meet the “on account of” requirement.  Did this added language create a different standard for asylum cases than that described in Bostock?

One leading authority points out that an earlier version of the 2005 legislation would have required the protected ground to be “the central motive” behind the persecution.  However, in the final version, “the” was changed to “at least one,” meaning that a protected ground need be only one of multiple causes behind the harm.12

Also, note the replacing of “motive” with “reason.”  The Cambridge English Dictionary defines “reason” as “the cause of an event or situation or something that provides an excuse or explanation,” providing the example: “the reason for the disaster was engine failure, not human error.”  “Reason” would thus seem to cover more territory than “motive,” as an engine has no motive to fail.

The change from “motive” to “reason” lends itself to what scholars of international refugee law have termed the “predicament approach,” in which a causal connection between the persecution and a protected ground satisfies the nexus requirement irregardless of evidence of a specific persecutorial intent.13  The concept is illustrated through the example of a conscientious objector who is imprisoned for evading mandatory military service.  While the conscription law applies equally to all, the real cause may be a protected ground where noncompliance with the law was because of a religious or political belief.14

It is for this reason that one leading scholar viewed the choice of word as an indication “of increased conformity with international standards” in line with the fact that the Refugee Act was enacted to bring U.S. law into conformity with international treaty obligations under the 1967 Protocol.15

The BIA’s Initial Take on “One Central Reason”

The BIA initially interpreted “one central reason” as a reason that is not “incidental, tangential, superficial, or subordinate to another reason for harm.”16   In doing so, the BIA  explicitly rejected the view that “one central reason” must be “dominant.”  As the Board explained, “[t]he problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”17  (It is worth noting the Board’s use of the word “motive” rather than “reason.”).

However, the Board’s inclusion of the word “subordinate” in its definition was rebuffed by the U.S. Court of Appeals for the Third Circuit, which found it to be the “mirror image of the rejected ‘dominance’ test: the requirement that a protected ground, even if a ‘central’ reason for persecution, not be subordinate to any other reason.”18  In other words, the court found no difference between requiring a reason to be dominant (which the Board correctly found it could not do) and prohibiting a reason from being subordinate (which the Board then did instead).  The Board has since dropped the word “subordinate” when describing the standard.

So in summary, the “at least one central reason” standard allows a cause for persecution to be one of many, and does not require the protected ground to be dominant in comparison with the others.  It only prevents the reason from being incidental, tangential, or superficial.  And again, the word is “reason” and not “motive;” surely, Congress saw a difference between those words or it wouldn’t have changed the latter to the former in the final version.

In its recognition that there may be multiple causes for persecution, in its substitution of “reason” for motive, and in its rejection of a dominance test, the “one central reason” test is indistinguishable from the standard described in Bostock.

Circuit Courts Have Applied the Bostock “But-For” Test in Asylum Cases

The Fourth Circuit has addressed the “one central reason” standard in a number of decisions in which it has consistently applied the “but-for” test.19  In one, a woman from El Salvador sought asylum after members of Mara 18 threatened to kill her for blocking them from recruiting her son.  The BIA upheld the Immigration Judge’s finding of no nexus, on the grounds “that gang recruitment was the central motivation for these threats;” while claiming that “the fact that the person blocking the gang members’ recruitment effort was their membership target’s mother was merely incidental to the recruitment aim.”20

Note the Board’s citing of a completely incorrect standard: “the central motivation,” referencing the wording that Congress rejected in place of the language it ultimately adopted.  As a practical matter, the Board viewed the recruitment aim as ending its nexus inquiry, whereas I would argue that it should have served as the starting point.  Once we know that the gang sought to recruit the son, we gain a perspective that allows us to better understand how the particular social group membership might put the asylum seeker in harm’s way.

Properly applying the “but-for” test described in Bostock to the above fact pattern required removing the family relationship from the equation to see if the threat of harm would remain.  Of course, it would not; it was the specific fact that the asylum-seeker was the intended recruit’s mother that put her between the gang and her son, blocking the recruitment.  And it was because she stood between the gang and her son that the former sought to kill her.  The maternal relationship wasn’t tangential or incidental to the recruitment; it was precisely the reason that the asylum-seeker was an obstacle that needed to be eliminated.

That is why the Fourth Circuit concluded that the family relationship was “at least one central reason” for the threatened harm: because the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.  The court added “The BIA’s conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these facts.”21

The Eleventh Circuit also applied the traditional “but-for” test in a 2019 decision in which the Board had found no nexus because a cartel  had a financial motive in targeting the Petitioner in order to extort money owed to the cartel by his uncle.22  The Eleventh Circuit found that “it is impossible to disentangle [the Petitioner’s] relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin.”  The court continued that absent the familial relationship with the uncle, the cartel never would have hunted the Petitioner down or persecuted him.  The court thus rejected the Board’s view that the family relationship was merely incidental; to the court, it was “abundantly clear to us that the family relationship was one central reason, if not the central reason, for the harm visited upon Mr. Perez-Sanchez.”23

The Ninth Circuit has also held the “but-for” cause to be the correct  standard for determining nexus in asylum cases, citing the Black’s Law Dictionary definition of the term as “[t]he cause without which the event could not have occurred.”24

The Description of the Standard By the BIA (and an Acting Attorney General)

The BIA’s application of the “one central reason” standard is best summarized in a recent decision of the Third Circuit: “although the BIA correctly recited the ‘one central reason’ test, it applied something altogether different.”25

In 2011, the BIA recognized the “one central reason” standard as requiring the asylum seeker to “demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.”26  What the BIA described is the traditional “but for” test.  And in 2017, in its decision in Matter of L-E-A-, the Board described  the test as “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.”27

Interestingly, less than a week before the end of the Trump Administration, a  briefly serving Acting Attorney General issued a second decision in Matter of A-B- recognizing that to establish a nexus for asylum purposes, “the protected ground: (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act.”28

The Acting Attorney General listed the “but-for” test and the fact that the ground not be incidental or tangential as if they were two separate requirements, even though a ground that serves as a “but-for” cause for persecution cannot be incidental or tangential.  Also curious is the Acting A.G.’s statement that  the ground could not be incidental or tangential to another reason for the act. Was this meant to be a return to  the dominance test that was rejected by the Third Circuit and the BIA?   Or might this have simply been the result of sloppy drafting, in which the Board’s language from Matter of J-B-N- & S-M- was modified by removing the word “subordinate” that the Third Circuit had rejected, while neglecting to also remove the “to any other reason” language that followed?  The question was rendered moot when the decision was vacated in June by Attorney General Garland.29

The Board Has Applied an Incorrect Standard for Nexus

Descriptions aside, as noted by the Third Circuit, the standard actually applied by the BIA has been something entirely different.  In many of the Board’s decisions, asylum has been denied for lack of nexus simply because the adjudicator deemed a non-protected reason to be the persecutor’s primary motive, without regard to the impact of the protected ground on outcome. This approach is not only inconsistent with the test applied in the above-mentioned circuit court cases (and in Bostock), but is inconsistent with the standard described by the Board itself which rejected a test for dominance.

The Second Circuit made this point in 2014, reversing a decision in which the IJ applied a “the central reason” test, as opposed to “at least one central reason.” The court emphasized that this was not harmless error; rather, it “set up an ‘illogical’ rubric for analyzing motivation that presupposed that multiple motives for persecution must be analyzed in competition with one another, rather than in concert.”30  The court further pointed out that this was not an isolated error by the agency, citing three other decisions dating back to 2007 in which the Board had done precisely the same thing.31

And the Fourth Circuit this year identified an oft-repeated error of the Board in determining nexus on account of family “by incorrectly focusing on why the gang targeted Petitioner’s family, rather than on why they targeted Petitioner herself.”32  In another recent decision, the Fourth Circuit stated that “‘once the right question is asked’ — that is, why was Petitioner being targeted — the conclusion is quite clear: ‘whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.'”33

Returning to the Supreme Court’s Yankees fan hypothetical in Bostock, the Board has been doing the equivalent of looking to how women were generally treated as a group (which, in the Court’s hypothetical, was equivalent to men) to conclude that gender was only incidental to being a Yankees fan, rather than deeming gender to be “at least one central reason” for the particular employee being fired due to its impact on outcome, as male Yankees fans were not terminated.  Of course, the Supreme Court in Bostock directly refuted this approach.  Similarly, in the asylum context, as the Fourth Circuit made clear, it doesn’t matter what view (if any) the gang has of the asylum-seeker’s family.  It only matters that the individual asylum seeker was targeted by the gang because of the family membership.  If so, there is a nexus to a protected ground.

In Matter of M-F-O-, the Board specifically referenced its 2017 decision in Matter of L-E-A- (i.e. L-E-A- I”), noting that its nexus analysis in that case “remains good law.”34  Let’s take a closer look at that decision.  We will first see what standard the Board purported to apply to the facts of the case.  Next, we’ll apply the traditional “but-for” test described in Bostock to those facts.  And lastly, we’ll examine the standard actually applied by the Board.

Matter of L-E-A-: The Board’s Statement of the Law

In Matter of L-E-A-, a criminal cartel sought to kidnap the respondent in his native Mexico.  The respondent’s father owned a store from which the cartel wished to sell drugs.  When the father refused the cartel’s request for access, it targeted the respondent as a means of coercing the father.  The Immigration Judge denied asylum, finding that the cartel’s motive was to sell drugs, not to harm members of the respondent’s family.  The Immigration Judge continued that the cartel’s focus was the store, stating that if the store were to be sold, the cartel would then target the new owner.

On appeal the Board recognized in a footnote the Fourth Circuit’s case law on the matter.  Instead of being instructed by it, the Board simply stated that “[w]hile it is not clear how the Fourth Circuit would apply that precedent to the facts here, this case does not arise in the Fourth Circuit.”35  With those words, the Board dismissed the standard traditionally employed in such matters.  And with what did the Board replace it?

The Board started down the same road as both Bostock and the Fourth Circuit.  It said that nexus is not established “if the persecutor would have treated the applicant the same if the protected characteristic did not exist,” a correct description of Bostock’s “but for” test.  In then citing its own prior take on “one central reason,” the Board omitted the word “subordinate,” stating instead that the protected characteristic “cannot be incidental [or] tangential…”  It continued by noting that both direct and circumstantial evidence of motive should be considered, and that sometimes “a more nuanced evaluation” will be warranted.36

The Traditional “But For” Standard Applied to the Facts of L-E-A-

As the Supreme Court stated in Bostock,  “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”37

The traditional “but for” standard would thus remove the respondent’s familial relationship to his father from the equation.  We know that the cartel’s aim is to compel the respondent’s father into allowing them to sell drugs in his store.  The cartel would have no reason to kidnap the respondent as a means of coercing his father if not for the familial relationship; the leverage over the father derives entirely from his fear for the safety of his child.  The protected characteristic of family is thus not merely incidental or tangential.  It is one central reason for the persecution.

As noted above, under this standard, it doesn’t matter that the goal of selling drugs is the persecutor’s dominant motive; the hierarchy of reasons is irrelevant.  As we have seen, the Board itself conceded this point in Matter of J-B-N- & S-M-.  Nor does it  matter that when the gang isn’t focused on selling drugs in the father’s store, it treats the members of the family the same as everyone else.  Think of Bostock’s Yankees fan example, in which the fact that women as a group are treated equally to men by the employer until their offending Yankees loyalty is discovered, at which point only women who root for the Yankees are fired.  The fact that both the employer’s hatred of the Yankees in the Bostock example and the gang’s desire to sell drugs in the father’s store in L-E-A- are central reasons doesn’t preclude other “but for” causes.

The Board Applied a “The Central Motive” Test in L-E-A-

However, the traditional standard was not what the Board actually applied to the facts of the case. Instead, it first claimed that “nexus would be established based on family membership where a persecutor is seeking to harm the family members because of an animus against the family itself.”38  In that example, the persecution is caused by the hatred of the family itself, without a need for any further reason.  But that is an example of the family membership serving as “the central motive” for the harm.

The Board then went on in L-E-A- to address instances lacking such animus towards the family itself.  But in doing so, the Board never mentioned the “but for” test described above.  Instead, it made general statements from which it is difficult to discern a coherent test.  In finally denying the claim on the ground that the cartel’s motive was financial, the Board continued to apply an incorrect “the central motive” standard.

Importantly, the Board in L-E-A- never undertook the required exercise of removing the protected ground to see if it would cause a different result.  Instead, it concluded that because the motive was financial, the claim failed.  In summary, the Board again recounted one standard, but then applied something entirely different.  What the Board in fact applied was a “the central motive” test, in which the dominance of the financial motive eliminated all other reasons from consideration.

Conclusion

In spite of the clarity of the correct standard, the universality of its application, and the criticism from numerous circuit courts over the years for its failure to apply it correctly, the BIA has made no effort to correct its course in its application of the “on account of” standard.  The Board remains consistent in its citing of something close to the correct standard, but then applying an entirely incorrect test.  Whatever it claims to be doing, the Board’s test is for “the central motive,” in which nexus is denied whenever a dominant purpose may be identified that is not a statutorily protected ground for asylum.  Congress specifically rejected this standard in favor of the more generous “at least one central reason” test.  Furthermore, the “predicament approach” has never been mentioned, much less applied, by the Board, which has continued to focus on the persecutor’s motive as if Congress had not changed that word to “reason.”

There are many within the Department of Justice who must  be aware of this practice.  I would hope that Attorney General Garland, a longtime circuit court judge, is among them.  In light of the BIA’s refusal to self-correct, it is incumbent on the Department to impose a correction from above.  Otherwise, any forthcoming regulations relating to particular social group formulation will fail to have their desired impact on the outcomes of asylum claims.

Copyright Jeffrey S. Chase 2021.  All rights reserved.

Notes:

  1. Thanks to Dr. Alicia Triche for providing invaluable insight that was incorporated into the final version of this article.
  2. 28 I&N Dec. 408 (BIA 2021).
  3. 8 U.S.C. § 1101(a)(42)(A).
  4. My use of the term “Traditional” is based on the Supreme Court’s reference in Bostock cited below to the “traditional” “but-for” test in cases with a “because of” or “on account of” requirement.
  5. 140 S. Ct. 1731 (2020).
  6. Id. at 1739.  Although no further explanation regarding the equivalency of the terms was provided in Bostock, in a prior decision, the Court had stated: “The words ‘because of’ mean ‘by reason of: on account of.’ 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining ‘because of’ to mean ‘By reason of, on account of ‘ (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining ‘because’ to mean ‘by reason; on account’).”  Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).
  7. Id. The Court has applied this same test in other cases, including FBL Fin. Servs., Inc., supra, in which it also referenced the description of the test found in W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).
  8. Id.
  9. Id.
  10. Id. at 1741.
  11. Id. at 1742.
  12.  Deborah E. Anker, Law of Asylum in the United States (2021-2022 Ed.) (Thomson Reuters) at 409.
  13. See James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd Ed.) (Cambridge) at 376.
  14. Id. at 276-77.
  15. Anker, supra at 390.
  16. Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007).
  17. Id. at 212, n.6.
  18. Ndayshimiye v. Attorney General of U.S., 557 F.3d 124, 129-30 (3rd Cir., 2009).
  19. See, e.g., Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021); Portillo Flores v. Garland, 3 F.4th 615, 630-31 (4th Cir. 2021) (en banc); Arita-Deras v. Wilkinson, 990 F.3d 350, 361 (4th Cir. 2021); Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020);  Zavaleta-Policiano v. Sessions, 873 F.3d 241, 249-50 (4th Cir. 2017); Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015).
  20. Hernandez-Avalos v. Lynch, supra at 949 (emphasis added).
  21. Id. at 950.
  22. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019).
  23. Id. at 1158-59.
  24. Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021).
  25. Ghanem v. Att’y Gen. of U.S., No. 19-1475 (3rd Cir. Sept. 22, 2021).
  26. Matter of N-M-, 25 I&N Dec. 526, 531 (BIA 2011) (citing  Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009)).
  27. Matter of L-E-A-, 27 I&N Dec. 40, 43-44 (BIA 2017) (“L-E-A- I”).
  28. Matter of A-B-, 28 I&N Dec. 199, 208 (A.G. 2021) (“A-B- II”).
  29. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (vacating both prior A.G. decisions in Matter of A-B-).
  30. Acharya v. Holder, 761 F.3d 289, 298 (2d Cir. 2014).
  31. The three earlier decisions cited in Acharya in which the BIA had committed the same error in applying a “the central reason” standard  were Castro v. Holder, 597 F.3d 93 (2d Cir. 2010); Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008); and Uwais v. U.S. Att’y Gen., 478 F.3d 513 (2d Cir. 2007).
  32. Perez Vasquez v. Garland, supra at 222.
  33. Hernandez-Cartagena v. Barr, supra at 322 (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018).
  34. Matter of M-F-O-, supra at 412, n.6.
  35. Matter of L-E-A-, supra at 46, n.3.
  36. Id. at 43-44.
  37. Bostock v. Clayton Country, supra at 1739.
  38. Id. at 44.

DECEMBER 21, 2021

Reprinted by permission.

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

I’d describe the BIA’s approach to nexus this way: 

  • Find any possible “non-protected” motivation (no matter how attenuated);
  • Characterize any “protected ground” as “tangential,” “marginal,” or “too attenuated” (even if, as in L-E-A-, it’s the direct or proximate cause of the harm or fear under conventional causation analysis — as Jeffrey points out, in L-E-A– not only was “family relationship” “at least one central reason” driving the gang’s interest, it was the only apparent reason for the gang’s interest in the respondent);
  • Deny asylum;
  • Hope that the refugee doesn’t seek judicial review or draws a circuit panel whose knowledge of asylum and commitment to humanity are as shallow as their own.

Let’s apply “BIA-think” to the infamous Krystal Nacht in Nazi Germany. It was “mere vandalism and crimes against against property,” albeit on a widespread basis. Sure, a few synagogues got burned to the ground. But, that was just an “unfortunate consequence” of their being in neighborhoods that were being randomly vandalized by hooligans.

Moreover, “arson” is a crime, not a “protected ground.” There were laws on the books in Germany punishing vandalism, so no “unwillingness or inability” to protect.

Of course it was hard tracing down the “alleged perps” because of the widespread nature of the crimes. The alleged perps were “non-government actors” not carrying out official policies. And police or other officials involved were merely “rogue officers” acting in violation of German law. Most significantly, the “alleged victims” never filed police reports. So how could the German Government be expected to act? Nothing to see here, really!

Moreover, if we grant one case, all the Jews in Nazi Germany might qualify for asylum. That would “open the floodgates.” Certainly not what Congress intended!

Krystal Nacht
“Widespread vandalism” but no persecution o/a/o any “protected ground” here!
Krystal Nacht
SOURCE: Holocaust Museum

Let’s face it, if the vessel St. Louis arrived at our shores today the Biden Administration wouldn’t even need to shove it back out to sea! They would use Title 42 to send the refugees back to death without any process at all, just as “Gauleiter Miller” told them to do!

The St.Louis
“No room at the inn! Go back and die in place, you ‘illegals.’”
The St Louis (1939)
Faces of the doomed
SOURCE: History.com

Jeffrey hits the nail on the head when he suggests that the BIA’s renewed vigor in “pushing” bogus nexus denials is prompted by the slow erosion of their Sessions/Barr inspired effort to define PSG out of existence as well as the Circuits’ increasingly critical treatment of the BIA’s often-specious adverse credibility findings (frequently improperly substituting their view for the IJ’s when necessary to sustain a DHS appeal) and their highly sanitized, “fantasyland” view of country conditions in the Northern Triangle and other major “refugee sending” countries. The latter probably reflects the many superior, authoritative tools for proving country conditions now available to advocates which highlight the “double speak, dumbing down, and overt polarization” of State Department Country Reports.

Manipulation and encouragement of wrongful nexus denials by IJs might be the “last line of defense” for the BIA against giving many more asylum seekers the protection they need and deserve under a fair and proper interpretation and application of asylum law!

Perhaps, we shouldn’t be surprised by Garland’s disinterest in making the progressive reforms necessary to restore some semblance of justice, order, and intellectual integrity to his disgracefully dysfunctional courts. While the GOP has been fixated on weaponizing Immigration Courts against migrants over the past two decades, Dems have shown little or no interest in fixing these glaring problems.

Poor policies and inattention to progressive judicial appointments @ EOIR during the Obama Administration started the exponential growth in backlog!

Now, in the words of one of my esteemed colleagues: “At this point, it just seems like a giant snowball careening down the mountain.”

Snowball
“Look out below, asylum seekers! Garland’s BIA is aiming for YOU!”
Public Realm

Litigating this mess to a standstill appears to be the only option Garland is leaving for those who believe that equal justice in America is for “all persons!”

🇺🇸Due Process Forever!

PWS

12-21-21

☠️NEW KIND REPORT SHOWS CRISIS OF PERSECUTION OF WOMEN & CHILDREN IN NORTHERN TRIANGLE EXACERBATED BY PANDEMIC — More Evidence Of Legal, Factual, & Moral Bankruptcy Of Administration’s Bogus “Deterrence Policies” As Well As Grotesque Failure Of U.S. Courts At All Levels To Uniformly Require Granting Of Asylum To Qualified Refugee Women & Children!

 

pastedGraphic.png

*Cover photo by photojournalist Guillermo Martinez shows a boy in El Salvador wearing a protective mask from his home during a COVID-19 lockdown. Photo credit: Guillermo Martinez/APHOTOGRAFIA/ Getty Images

 

New Report: Dual Crises

 

 

 

Gender-Based Violence and Inequality Facing Children and Women During the COVID-19 Pandemic in El Salvador, Guatemala, and Honduras

 

 

 

Gender-based violence has long been one of the main drivers of migration from Central America to the United States. Widespread violence, including sexual abuse, human trafficking, and violence in the home and family, combined with a lack of access to protection and justice forces children and women to flee in search of safety. Drawing on existing research and interviews with children’s and women’s rights experts, this report lays out how the COVID-19 pandemic has exacerbated already pervasive forms of violence against children and women in Central America, as well as the deeply entrenched gender inequality that leaves children and women even more vulnerable to violence.

Here’s a link to the full report: http://us.engagingnetworks.app/page/email/click/10097/1093096?email=C9P0Zhj6QQc0L7Si0LDouAN%2BRR2ul1GhmZAK81VjEpg=&campid=z6owwwxd2r6ZkArzVWMSmA==

 

 

 

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

Successful implementation of the U.S. Strategy for Addressing the Root Causes of Migration in Central America must start by acknowledging that gender-based violence is a primary driver of migration and includes most violence against children.

Obviously, mindless, failed enforcement and deterrence-only policies that tell women and children to “suffer and die in place” rather than flee and seek asylum are absurdly out of touch with the realities of both human migration and the real situation in the Northern Triangle. This report shows that increased flight from the Northern Triangle probably has more to do with the aggravating effects of the pandemic on the already untenable situation of many women and children in the Northern Triangle than it does on any policy pronouncements, real or imagined, on the part of the Biden Administration.

An honest policy that recognizes the reality that gender-based persecution is a major driver of forced migration in the Northern Triangle would go a long way toward addressing the largely self-created situation at our Southern Border.

As many of us keep saying, to no visible avail, asylum isn’t a “policy option” for politicos and wonks to “discuss and debate.” It’s a legal and moral requirement, domestically and internationally, that we are currently defaulting upon!

Wonder why “democracy is on the ropes” throughout the world right now? Perhaps, we need look no further than our own horrible example!

A robust overseas refugee program in the region and a uniform, consistent, timely policy of granting asylum to qualified applicants applying at ports of entry at our borders would be a vast improvement. 

Sure, it would undoubtedly result in the legal immigration of more refugees and asylum seekers. That’s actually what refugee and asylum laws are all about — an important and robust component of our legal immigration system. 

Although our needs are not actually part of the “legal test for asylum,” the fact is, we need more legal immigrants of all types in America right now.

It should be a win-win for the refugees and for America. So why not make it happen, rather than continuing failed policy approaches that serve nobody’s interest except nativist zealots trying to inflame xenophobia for political gain?

An additional point: On February 2, 2021, to great ballyhoo, President Biden issued Executive Order 14010. A key provision of that order required that:

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

270 days have long passed. In fact, its been more than 300 days since that order. Yet, these regulations are nowhere in sight. Perhaps, that’s a good thing.

This doesn’t come as much of a surprise to “us old timers” who have “hands on” experience with the unsuitability of the DOJ regulation drafting process for this assignment. Indeed, this assignment is actually several decades “overdue,” having originally been handed out by the late former Attorney General Janet Reno prior to her departure from office in January 2020!

The problem remains lack of expertise. With the possible exception of Lucas Guttentag, I know of nobody at today’s DOJ who actually has the necessary experience, expertise, perspective, and historical knowledge to draft a proper regulation on the topic. Past drafts and proposals have been disastrous, actually seeking to diminish, rather than increase and regularize, protections for vulnerable women and others facing persecution on account of gender-based particular social groups.

Indeed, one proposal was even used by OIL as an avenue in attempting to “water down” the all-important, life saving “regulatory presumption of future persecution arising out of past persecution!” Talk about perversions of justice at Justice! Why? Because OIL had suffered a series of embarrassing, ego-deflating setbacks from Article III Courts calling out the frequent failure of the BIA and IJs to properly apply the basics of the presumption. Sound familiar?

At DOJ, the “normal solution to lack of expertise and competence” is to simply eliminate expertise and competence as requirements! In many ways, “good enough for government work” has replaced “who prosecutes on behalf of  Lady Justice” as the DOJ’s motto!

It’s also yet another reason why the DOJ is a horribly inappropriate “home” for the U.S. Immigration Courts!


😎Due Process Forever! 

PWS

12-16-21

⚖️🗽NDPA CALL TO ARMS: THE GEORGE W. BUSH INSTITUTE ISSUES RESEARCH TO COMBAT THE DISINGENUOUS ATTACK ON WOMEN & THE RACE-DRIVEN MISOGYNY & MINIMIZATION OF GENDER-BASED PERSECUTION THAT INFECTS THE FEDERAL JUDICIARY &  BUREAUCRACY FROM TOP TO BOTTOM!  — “Better Than The Third Circuit!”

 

“Make the record” to fight the ignorant nonsense and grotesque misconstruction of the asylum law and country conditions by the Third Circuit & far, far too many Federal Judges & Bureaucrats with this authoritative report authored by Natalie Gonnella-Platts, Jenny Villatoro, and Laura Collins of the George W. Bush Institute:

https://www.bushcenter.org/publications/resources-reports/reports/gender-based-violence-and-migration-central-america.html?utm_source=newsletter&utm_medium=email&utm_campaign=fiveforfriday&utm_term=12102021

No Justice: Gender-based Violence and Migration in Central America

Gender-based violence affects one in three women worldwide, making it an urgent and important policy challenge. Violence against women and girls is often excluded from conversations on the nexus of Central American migration, regional development, and domestic immigration reform.

Key Excerpts:

. . . .

Though there has been increasing focus from US and international influencers on the levels of violence in El Salvador, Guatemala, and Honduras (known as the Northern Triangle) and its impact on migration, an adequate response to the gendered differences in the ways violence is perpetrated remains limited and at times nonexistent.

This needs to change, especially since gender-based violence within the Northern Triangle constitutes a daily threat to women and girls—one that has been significantly worsened by corruption, weak institutions, and a culture of impunity toward perpetrators. At individual and community levels, gender-based violence drives women and girls to be displaced internally, migrate to the United States, or a somber third path—death either by femicide or suicide. At national levels, it seriously inhibits security, opportunity, and development.

As circumstances at the southern border of the United States demonstrate, gender-based violence has a direct influence on migration flows across the region and is deeply tangled with cyclical challenges of inequity and poverty. For those who choose to seek assistance or flee their communities, high rates of revictimization and bias further obstruct access to justice and safety.

Until policies and programs respond to the serious violations of agency and human rights perpetuated against women and girls (and within systems and society at large), instability in and migration from the Northern Triangle only stand to grow.

As the United States and the international community consider a comprehensive plan on Central America and immigration reform, proposed strategies must anchor the status and safety of women and girls at the center of solutions.

. . . .

In Guatemala, teenage girls face a substantial risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.7

. . . .

Guatemala: In Guatemala, about 8 of every 1,000 women and girls were the victim of violence in 2020. Thirty women were murdered on average each month last year, or almost one per day, the lowest rate in the last 10 years. Reported rape cases averaged 14 per day.17 One of the most extreme and recognizable forms of gender-based violence is sex slavery. According to a report by the International Commission against Impunity in Guatemala (CICIG) and UNICEF: “A combination of gangs, crime families, and drug trafficking organizations run sex trafficking rings in Guatemala that may involve some 48,500 victims.”18

Women in Indigenous and rural communities may have it even worse. For example, Indigenous women in Guatemala face multiple layers of discrimination, including a history of repression and genocide.

During the genocidal Guatemalan civil war that lasted from 1960 to 1996, state sanctioned mass rape during massacres was used to repress the Indigenous populations—with offenses committed publicly and bodies often left on display with the intent to instill terror in the Mayan communities.19 Truth commissions state that more than 100,000 Indigenous women were raped and forced into sex slavery.20

State-sanctioned and state-accepted gendered violence may have contributed to a culture that tolerates violence against women. Guatemalans were the most accepting of gender-based violence in a 2014 survey of Latin American countries by Vanderbilt University, while El Salvador came in second.21

Unfortunately, the COVID-19 pandemic has further exacerbated the risk of violence to women and girls in the Northern Triangle, as it has in every region

of the world. Exploited by gangs and others, lock-downs have forced those most at risk for violence to shelter in proximity to their abusers. All three countries within the region have reported sizable increases in intrafamily violence since the start of the pandemic. El Salvador has also seen a notable increase in intrafamily femicide.

. . . .

Coupled with the trauma already experienced by survivors, each of these factors contributes to a lack of trust in institutions, high levels of impunity for perpetrators, and a vicious cycle of repeat violence against women and girls.

Faced with this dire reality, women and girls often have three choices: (1) report and face disbelief, (2) stay and risk additional violence, or (3) flee.

. . . .

Women and girls undertake this risky journey with no guarantee of legal protection in the United States. But they come because the horrors they face at home are so much worse.

It’s important to remember that seeking asylum

is often the only legal means that migrants who qualify have of entering the United States. Although requesting asylum is legal, the path to asylum is not

safe. An understanding of legal rights and access to services—including health, trauma, and legal support—also remain out of reach for many female migrants, furthering cycles of exploitation.

Current US refugee and asylum law does not recognize gender-based violence as its own category warranting protection. According to the American Bar Association, US protections for victims of gender-based violence are built upon 20 years of advocacy and sometimes favorable legal opinions.54 These protections are tenuous, with any presidential administration able to roll back the decisions made under its predecessor. Attorney General Merrick Garland recently reinstated prior precedent for gen- der-based violence asylum requests and announced that the Department of Justice would pursue a formal rule.55 But even this could be reversed in the future.

Until legislation enshrines gender-based violence as a condition warranting humanitarian protection, the United States will continue to turn away women and girls who merit refuge.

. . . .

The Northern Triangle, Mexico, and the United States are at a crossroads. El Salvador, Guatemala, and Honduras can either take advantage of a young population of prime working age by promoting pol- icies that create a safe, stable environment where women and girls can fully participate, or they can continue on a path that is leading to substantial lev- els of gender-based violence, instability, migration, and economic stagnation.

As research continuously demonstrates, when empowered, active, and engaged, women and girls are a critical catalyst for security and prosperity. Countries with higher levels of gender equity are more peaceful and stable overall.66 Gender equality can provide better outcomes for children, increased labor productivity, lower poverty rates, and reduced levels of violence.67

In seeking to secure a brighter future across the Western Hemisphere, immigration and develop- ment policies must include solutions to address gender inequity and gender-based violence. As current circumstances at the southern border of the United States demonstrate, stability and prosperity are not possible without them.

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

Debi Sanders
Debi Sanders ESQ
“Warrior Queen” of the NDPA
PHOTO: law.uva.edu

Many thanks to my good friend and “founding mother of the NDPA,” Deb Sanders for bringing this to my attention.

The Bush Institute has done some great “practical scholarship” on gender-based asylum, exposing many of the lies and misinformation upon which Government policies have been based, particularly GOP nativist policies and the overtly misogynistic attack on migrant women of color by the Trump regime.

“No justice,” “protections are tenuous” (at best), “high levels of impunity,” “dire reality,” “requesting asylum is legal, the path to asylum is not safe” come to mind when reading the Third Circuit’s abominably incorrect “analysis” in Chavez-Chilil v. A.G.  https://immigrationcourtside.com/2021/12/10/%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%f0%9f%91%8e%f0%9f%8f%bd-3rd-cir-badly-bungles-guatemalan-women-psg-chavez-chilel-v-atty-gen/

And let’s not forget that Ms. Chavez-Chilil is actually one of the lucky ones! She got a chance to make her claim and was awarded life-saving protection by an Immigration Judge under the CAT, albeit protection that leaves her unnecessarily and perpetually “in limbo” — ineligible to fully join our society and maximize her own human potential for everyone’s benefit.

By contrast, thousands of women and girls (also men and boys) are insanely, illegally, and immorally “orbited” back to danger zones without any opportunity to even make a claim and without any legitimate process whatsoever, let alone due process!

Why this is important:

  1. Compelling documentation and cogent arguments will win individual cases and save lives;
  2. We can build case law precedent for gender-based asylum grants;
  3. We must make a clear historical record of which jurists and bureaucrats stood up for the rule of law and the humanity of refugee women and which of them purposely have aligned themselves with the “dark side of history.” See, e.g., Chief Justice Roger Taney.

Why is the Biden Administration mindlessly and immorally attempting to “deter” legal asylum seekers from seeking to save their own lives? What’s the excuse for treating a moral and legal requirement under domestic and international law as a “bogus political strategy option” rather than the legal obligation it is? Why was the DOJ “pushing” a legally wrong, corrupt, factually wrong position before the Third Circuit?  Where’s the expertise? The backbone? The moral courage? The accountability?

🇺🇸Due Process Forever!

PWS 

12-13-21 

☠️🤮👎🏽 3RD CIR. BADLY BUNGLES GUATEMALAN WOMEN PSG! — Chavez-Chilel v. Atty. Gen.

Woman Tortured
“Hey ladies, not every woman in Guatemala is hanging up there with you (yet), so what’s the problem,” says Circuit Judge Patty Shwartz of the 3rd. Cir.“ “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www2.ca3.uscourts.gov/opinarch/211180p.pdf

Chavez-Chilel v. Atty. Gen., 3rd Cir., 12-09-21, published

PANEL: SHWARTZ, PORTER, and FISHER, Circuit Judges.

OPINION: Judge Patty Shwartz

KEY QUOTE:

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women).8 Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female

8 In Perdomo v. Holder, 611 F.3d 662, 668–69 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit disagreed with the BIA’s conclusion that “all women in Guatemala” was too broad a group to qualify as a PSG and remanded for further analysis. That case rested on the Ninth Circuit’s two-part definition of a PSG, which recognized any group “united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Id. at 666 (quotation marks and emphasis omitted). This definition is not consistent with our Court’s three requirements for a PSG, see S.E.R.L., 894 F.3d at 540, so we decline to follow the reasoning in Perdomo.

14

         

genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), Chavez- Chilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. Because Chavez-Chilel cannot prove her asylum claim, she cannot meet the higher standard to obtain withholding of removal. See Blanco v. Att’y Gen., 967 F.3d 304, 315 (3d Cir. 2020). As a result, the IJ and BIA correctly denied her request for asylum and withholding of removal.9

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

What total poppycock Judge Shwartz spews forth in the faces of abused and targeted refugee women! Guatemalan women suffer one of the highest femicide rates in the world! https://cgrs.uchastings.edu/our-work/femicide-and-gender-based-violence. Indeed, that rate increased dramatically, by 31%, in 2021! https://www.riotimesonline.com/brazil-news/mercosur/central-america/femicides-increase-by-31-in-guatemala-during-2021/. While Judge Shwartz and her colleagues are incapable of recognizing truth, persecutors in Guatemala are highly capable of recognizing “women in Guatemala” as a group to target because of their gender!

This is a seriously flawed analysis. The court conflates psg “particularity” with nexus. Obviously, not every woman in Guatemala need fear persecution for some to be persecuted on that basis!

Suppose a few Jews escaped Nazi persecution. Does that mean Jews weren’t a PSG? Suppose only 10% of Poles were killed by the Nazis because of their ethnicity. Does that mean Poles were not a PSG? Suppose only 40% of Roma in a particular country are exterminated? Does that make Roma not a PSG? What if every Catholic in a particular country doesn’t have the exact same fear of persecution? Does that mean that Catholics don’t have a “well-founded fear”of persecution? Does that mean that Catholicism isn’t “one central reason” for persecution? Of course not, except in the uninformed minds of Judge Shwartz and her panel colleagues!

Obviously “women in Guatemala” is 1) fundamental to identity; 2) particularized (it clearly excludes non-women); and 3) distinct in Guatemalan society (and every other country in the world). Indeed, like family “women” and “men” are among the oldest, most fundamental, readily recognizable “particular social groups” in human existence!

I’m not the only critic of this outrageous misconstruction of asylum law!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“Sir Jeffrey” Chase of the Round Table 🛡⚔️ says:

The court completely misconstrued the standard for determining particularity:

Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. 

Particularity of course is a clear marker for group inclusion, and does not require evidence that everyone in the group is being targeted for persecution – compare, e.g. family or land owners.

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Our friend and “practical scholar” colleague, Professor Geoffrey Hoffman of the University of Houston Law Center, adds:

Appears also to ignore the “once central reason” asylum rule in that the court is erroneously say gender must be “sole” reason (page 15, use of word “solely”)

So court got it wrong on 2 counts – not “all” women in Guatemala must be persecuted to form a valid PSG and gender need not be “sole reason” for the persecution.

Another colleague who practices in the 3rd Circuit sums it up succinctly and bluntly: “Awful!”

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

In addition to being legally wrong on a number of points, as pointed out by Dan Kowalski at LexisNexis Immigration Community, the court’s decision is horrible policy:

Note that the IJ DID grant CAT relief, and the government did NOT appeal that grant.

The “good news” is that the CAT grant prevents Ms. Chavez -Calel from being returned to torture and persecution in Guatemala. However, by misapplying asylum law, the court basically places her in an indefinite “limbo status.” 

She therefore is deprived of the right to fully integrate into our society by getting a green card and becoming a citizen. The court also strips her of any realistic path to exercising political rights! What sense does manipulating the law to intentionally create disenfranchised subclasses in American society make when better alternatives are available? 

To add insult to injury, in this decision the Third Circuit joined other Circuits and the BIA in giving DHS and EOIR a “pass” on their intentional decision not to comply with the INA requirements for issuing a Notice to Appear (“NTA”) to commence removal proceedings. 

Obviously, these “ivory towerists” have never experienced the actual mess that occurs when overworked, understaffed Immigration Court clerks manually mail out subsequent notices, by regular U.S. Mail, using addresses haphazardly entered by DHS personnel in the chaos that often exists at the border and upon release from DHS detention. 

Perhaps, in their exalted positions, these Article IIIs no longer have to rely on the ever-deteriorating service of the U.S. Postal service. This morning, I delivered a “mini-stack” of mis-delivered U.S. Mail to my next door neighbor. We seem to get mis-delivered mail on a weekly basis. And, I live in a reasonably “upscale” neighborhood, if I do say so myself — one where folks know all the neighbors and take the time to “re-route” misdirected mail. Think there are places America where that doesn’t happen?

What do these judges think “delivery accuracy” is in the communities and situations where most Immigration Court respondents live? Maybe, there was a good reason why Congress required the NTA, which, unlike subsequent EOIR notices, is often served personally, to contain accurate information on the time and place of their hearing.

Maybe, we need Federal Judges who live in the “real world” rather than abstract one they have constructed where the lives of migrants are at issue! Maybe, we need more Federal Judges who have seen and experienced the consequences of “poor and uninformed judging” on immigrant and ethnic communities in the U.S.!

At a time when the Supremes’ righty majority appears to be intent on dismantling half a century of established women’s rights, the Third Circuit’s wrong-headed decision is a further “body blow” to both the humanity and human rights of women throughout the world!

 Judge Schwartz is an Obama appointee. Her panel colleagues are GOP appointees. We deserve better from our life-tenured Federal Judiciary! Much, much better!

🇺🇸Due Process Forever!

PWS

12-10-21

☠️⚰️👎🏽🤮 SHAFTOLA! — RIGHTY JUDGES USE UNREPRESENTED CASE TO STICK IT TO FEMALE REFUGEES PERSECUTED BY DOMESTIC VIOLENCE! — America’s Worst Circuit Strikes Again! — Jaco v. Garland

https://www.ca5.uscourts.gov/opinions/pub/20/20-60081-CV0.pdf

PANEL:  Jolly, Elrod, and Oldham, Circuit Judges.

OPINION: Jennifer Walker Elrod, Circuit Judge

KEY QOUTE:

We will start, as we did in Gonzales-Veliz, with the state of immigration law. In Matter of M-E-V-G-, the BIA synthesized prior BIA decisions addressing the definition of “particular social group.” 26 I. & N. Dec. 227, 228 (BIA 2014). In doing so, it clarified that an applicant must show that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question. Id. at 237. Furthermore, there must

3 The Attorney General issued A-B-II to clarify questions arising from A-B-I. Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (A-B-II).

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be a nexus between the particular social group and its persecution; the persecution must be “on account of” membership in the group. Id. at 242; 8 U.S.C. § 1101(a)(42).

In clarifying these requirements, the BIA carefully distinguished between the existence of a social group and the nexus between that social group and its persecution. As to the existence of a social group, drawing on the language of the statute, prior BIA decisions, and federal circuit court decisions, the BIA stated that the “social group must exist independently of the fact of persecution,” and that “this criterion is well established in our prior precedents and is already a part of the social group analysis.” M-E-V-G-, 26 I. & N. Dec. at 236 n.11 (citing Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (BIA 2007) and Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir. 2003)); see also id. at 242 (referencing the text and structure of 8 U.S.C. § 1101(a)(42)).

This does not mean that past persecution is irrelevant. Rather, it means that the group must be sufficiently defined and particularized by characteristics other than persecution. See W-G-R-, 26 I. & N. Dec. at 216 (“Circuit courts have long recognized that a social group must have ‘defined boundaries’ or a ‘limiting characteristic,’ other than the risk of being persecuted, in order to be recognized.”). To illustrate, the BIA considered a hypothetical group of former employees of a country’s attorney general. M-E-V-G-, 26 I. & N. Dec. at 242–43. The employees’ shared experience of working for the attorney general satisfied the requirement of an immutable characteristic. And the group would also be sufficiently particularized. But the group, without more, may not be considered sufficiently distinct in its society. In this case, government persecution may “cataly[ze] the society to distinguish the former employees in a meaningful way and consider them a distinct group.” Id. at 243. But “the immutable characteristic of their shared past experience exists independent of the persecution.” Id.

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In a decision released on the same day as M-E-V-G-, the BIA elaborated on the nexus requirement. W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). In W-G-R-, the BIA stated that “membership in a particular social group [must be] a central reason for [the] persecution.” Id. at 224. This common-sense definition highlights the importance of the distinction between the existence of a group and the persecution that it suffers. In the BIA’s words: “The structure of the Act supports preserving this distinction, which should not be blurred by defining a social group based solely on the perception of the persecutor.” Id. at 218. To define a social group by its persecution collapses the “particular social group” and “persecution on account of membership” inquiries into the same question, contrary to the structure of the INA. See 8 U.S.C. § 1101(a)(42).

Nevertheless, later in the same year the BIA decided A-R-C-G-. 26 I. & N. Dec. 388 (BIA 2014). In A-R-C-G-, the petitioner claimed that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group. Id. at 388–89. Whereas the IJ determined that the woman’s husband did not abuse her “on account of” her membership in this group, the BIA reversed on appeal. Professing to apply M-E-V-G-, it determined that the “immutable characteristics” of “gender,” “marital status,” and “the inability to leave the relationship” combined “to create a group with discrete and definable boundaries.” A-R-C-G-, 26 I. & N. Dec. at 393.

In 2018, however, the Attorney General overruled A-R-C-G- in A-B-I. 27 I. & N. Dec. at 316. After the BIA recognized the group “El Salvadoran women who are unable to leave their domestic relationships where they have children in common [with their partners],” the Attorney General directed the BIA to refer the decision for his review. Id. at 316–17, 321; see also 8 C.F.R. § 1003.1(h)(1)(i). Upon review, the Attorney General reversed. He reiterated that “[t]o be cognizable, a particular social group must ‘exist

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independently’ of the harm asserted in an application for asylum or statutory withholding of removal.” Id. at 334 (citing M-E-V-G-, 26 I. & N. Dec. at 236 n.11, 243; W-G-R-, 26 I. & N. Dec. at 215; and a collection of federal circuit court cases). He reasoned that “[i]f a group is defined by the persecution of its members, then the definition of the group moots the need to establish actual persecution.” Id. at 335. For this reason, he concluded that “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” Id. at 320.

A-B-I, however, was itself overruled by the Attorney General in 2021. On February 2, 2021, the President issued an executive order directing the Attorney General and the Secretary of Homeland Security to address the definition of “a particular social group.” Exec. Order No. 14010, § 4(c)(ii), 86 Fed. Reg. 8267, 8271 (Feb. 2, 2021). Because A-B-I and A-B-II addressed that definition, the Attorney General vacated both decisions in anticipation of further rulemaking. He also instructed immigration judges and the BIA to follow “pre-A-B-I precedent, including A-R-C-G-.” A-B-III, 28 I. & N. Dec. at 307.

B.

Swept up in this flurry of overrulings is our decision in Gonzales-Veliz. In that case, we faced the question whether the group “Honduran women unable to leave their relationship”—defined identically to Jaco’s proposed social group—qualified as a particular social group. 938 F.3d at 223. Issued after A-B-I but before A-B-III, we relied in part on A-B-I in concluding that the group was not cognizable. Thus, keeping in mind our duty to exercise Chevron deference, we must determine whether the overruling of A-B-I gives us reason to depart from our decision in Gonzales-Veliz. We hold that it does not.

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In holding that the group in Gonzales-Veliz was not cognizable, we relied in part on A-B-I. Yet we relied on A-B-I not out of deference to it but based on the quality of its reasoning. Indeed, our decision hinged on the inherent circularity involved in defining a particular social group by reference to the very persecution from which it flees. We held that the group was “impermissibly defined in a circular manner. The group is defined by, and does not exist independently of, the harm—i.e., the inability to leave.” Id. at 232. For this reason, we concluded that such an interpretation would “render the asylum statute unrecognizable.” Id. at 235.

In contrast, we recognized that the Attorney General’s “interpretation of the INA in [A-B-I] is . . . a much more faithful interpretation” of the statute. Id. This interpretation was, we said, “a return to the statutory text as Congress created it and as it had existed before the BIA’s A-R-C-G- decision.” Id. That our conclusion had support in the overwhelming weight of BIA precedents shows only that our reading of the statute was correct, not that A-B-I or any other decision was necessary for our conclusion.

Nor does Chevron deference affect our conclusion here. Although we review the BIA’s legal conclusions de novo, we grant Chevron deference to the BIA’s precedential decisions interpreting statutes that it administers. E.g., Rodriguez-Avalos v. Holder, 788 F.3d 444, 449 (5th Cir. 2015). Chevron entails a two-step process for determining whether deference is appropriate. First, the relevant statutory provision must be ambiguous. And second, the agency’s interpretation must be reasonable. E.g., Dhuka v. Holder, 716 F.3d 149, 154 (5th Cir. 2013). Here, even assuming arguendo that the phrase “particular social group” is ambiguous and that A-R-C-G- requires upholding the cognizability of Jaco’s group, that interpretation would be unreasonable for the reasons we gave in Gonzales-Veliz. Relying on circular reasoning is a logical fallacy. An interpretation that renders circular a

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statute’s reasoning is unreasonable and therefore unworthy of deference

under Chevron.4

In the alternative, we hold that even if Gonzales-Veliz were not good law, Jaco’s petition would still be denied.5 Following pre-A-B-I precedent, as A-B-III instructs, would not change the result. In A-B-III, the Attorney General instructed immigration judges and the BIA to follow “pre-A-B-I precedent, including [A-R-C-G-].” A-B-III, 28 I. & N. Dec. at 307. This was also the relevant law at the time of the IJ’s decision, and the IJ correctly distinguished Jaco’s case from that upheld in A-R-C-G-. Because A-R-C-G- is not clearly on point and did not overrule prior case law, we must

4 Our circuit has consistently refused to recognize particular social groups defined primarily by the persecution they suffer. This is true before and after both A-R-C-G- and Gonzales-Veliz. E.g., Orellana-Monson v. Holder, 685 F.3d 511, 518–19 (5th Cir. 2012); De Leon-Saj v. Holder, 583 F. App’x 429, 430–31 (5th Cir. 2014) (per curiam); Suate-Orellana v. Barr, 979 F.3d 1056, 1061 (5th Cir. 2020); Gomez-De Saravia v. Barr, 793 F. App’x 338, 339–40 (5th Cir. 2020) (per curiam); Serrano-de Portillo v. Barr, 792 F. App’x 341, 342 (5th Cir. 2020) (per curiam); Hercules v. Garland, 855 F. App’x 940, 942 (5th Cir. 2021) (per curiam); Argueta-Luna v. Garland, 847 F. App’x 260, 261 (5th Cir. 2021) (per curiam).

This is true even after A-B-III. See Castillo-Martinez v. Garland, No. 20-60276, 2021 WL 4186411, at *2 (5th Cir. Sept. 14, 2021) (per curiam); Santos-Palacios v. Garland, No. 20-60123, 2021 WL 3501985, at *1–2 (5th Cir. Aug. 9, 2021); Temaj-Augustin v. Garland, 854 F. App’x 631, 632 (5th Cir. 2021) (per curiam).

Some, but not all, of our sister circuits have agreed with this anti-circularity principle. Sanchez-Lopez v. Garland, No. 18-72221, 2021 WL 3912145, at *1 (9th Cir. Sept. 1, 2021); Del Carmen Amaya-De Sicaran v. Barr, 979 F.3d 210, 217–18 (4th Cir. 2020); Amezcua-Preciado v. United States Attorney General, 943 F.3d 1337, 1345–46 & n.3 (11th Cir. 2019) (per curiam); but see Juan Antonio v. Barr, 959 F.3d 778, 789 n.2, 791–92 (6th Cir. 2020) (observing that “married indigenous women in Guatemala who are unable to leave their relationship” constitutes a cognizable particular social group); Corea v. Garland, No. 19-3537/20-3252, 2021 WL 2774260, at *3–4 (6th Cir. July 2, 2021) (remanding to the BIA to consider whether “Honduran women unable to leave their relationships” is a cognizable social group in light of A-B-III).

5 Alternative holdings are not dicta and are binding in this circuit. Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015).

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read it in light of prior BIA decisions, including M-E-V-G-. Cf. Gonzales- Veliz, 938 F.3d at 235 (“[A-B-I] did not alter [prior immigration law]; it simply restated established legal principles and overruled A-R-C-G- because A-R-C-G- deviated from those principles.”).

Indeed, multiple factors counsel toward reading A-R-C-G- narrowly, including (1) the fact that DHS had conceded the existence of a particular social group, and (2) A-R-C-G-’s own statement that “where concessions are not made and accepted as binding, these issues will be decided based on the particular facts and evidence on a case-by-case basis as addressed by the Immigration Judge in the first instance.” 26 I. & N. Dec. at 392–93, 395. For these reasons, Jaco’s group would not be recognized even if Gonzales-Veliz were not the law of this circuit.

We also reject Jaco’s argument that intervening BIA decisions since the time of the IJ’s decision require a remand of her case. A-R-C-G- was the relevant law at the time of the IJ’s decision. Now that A-R-C-G- has been revived, a remand would place Jaco back where she started. And her claims have already been correctly rejected under that standard. Alternatively, regardless of the controlling decision, only an unreasonable interpretation of the INA can support her proposed group.

A remand is also inappropriate because it would be futile. See, e.g., United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (per curiam) (declining to remand where a remand would be futile); see also Villegas v. Stephens, 631 F. App’x 213, 214 (5th Cir. 2015) (per curiam) (same). Applicants for asylum or withholding of removal must show that the government “is unable or unwilling to control” the applicant’s persecution. See Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006) (citing 8 C.F.R. § 1208.13(b)(1)). As the IJ held—and as the BIA affirmed in its first decision—Jaco failed to make this showing. Jaco received child support and

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a restraining order from the Honduran government against her former partner. While her former partner appeared to violate the restraining order on at least two occasions, Jaco reported only one occasion to the judge, and never informed the police. Rather than being unable or unwilling to protect her, the record reflects that the government was responsive to her fears when apprised of them. Therefore, even if Jaco could show membership in a cognizable particular social group, a remand would be futile because it would not change the disposition of her case.6

In holding that Jaco’s proposed group is not cognizable, we do not hold that women who have suffered from domestic violence are categorically precluded from membership in a particular social group. We hold only that a particular social group’s immutable characteristics must make the group sufficiently particularized and socially distinct without reference to the very persecution from which its members flee. E.g., Perez-Rabanales v. Sessions, 881 F.3d 61, 67 (1st Cir. 2018) (“A sufficiently distinct social group must exist independent of the persecution claimed to have been suffered by the alien and must have existed before the alleged persecution began.”); Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005) (“The individuals in the group must share a narrowing characteristic other than their risk of being persecuted.”).

Accordingly, even if Jaco’s group meets the immutable characteristic and nexus requirements, we still hold that her group is neither particularized nor socially distinct.7 In Gonzales-Veliz, we determined that—even as defined by the persecution that it suffers—the group “Honduran women unable to leave their relationships” lacked the requisite particularity and

6 See supra note 5. 7 See supra note 5.

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social distinction. 938 F.3d at 232; see also Suate-Orellana v. Barr, 979 F.3d 1056, 1061 (5th Cir. 2020); Orellana-Monson v. Holder, 685 F.3d 511, 521–22 (5th Cir. 2012). The same is true here. Substantial evidence supports the BIA’s conclusion that her group is neither particularized nor distinct. And without the illicit element of persecution, the group “Honduran women” is even less particularized. Jaco’s proposed group fails this test.

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

Judge Elrod’s opinion is as preposterous as it is intellectually dishonest and legally wrong. Of course “Honduran women” — whether in a relationship or not — are both socially distinct in society and “particularized” as it excludes men and women of other nationalities. And, there can be little doubt based on empirical reports about femicide and its causes that Honduran women suffer disproportionately.

Indeed, until the BIA went to work restricting the definition following the “Ashcroft Purge of ‘03” the “touchstone” for recognizing a particular social group was “immutability” (including “fundamental to identity”). See,e.g., Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

Indeed, most refugee NGOs and experts view the BIA’s departure from the “immutability test” as both improper and intellectually dishonest. “Social visibility” actually was put forward by the UNHCR as a way of expanding the refugee coverage by insuring the inclusion of groups that strictly speaking might not be “immutable” or “fundamental to identity.” 

Contrary to Judge Elrod’s claim, the 1951 Refugee Convention, upon which our Refugee Act of 1980 was modeled, was intended to protect, not reject, refugees to insure that there would be no repetition of the Western democracies’ disgraceful performance prior to and during the Holocaust!

The best comment I have seen so far is from my friend and immigration guru Dan Kowalski: 

This is a travesty.  For such an important case, the Court should have appointed counsel.  I hope pro bono counsel will step in to petition for rehearing and/or en banc review.

“Travesties of justice” are what right wing Federal Judges and White Nationalist restrictionist politicos stand for. The only question is when, if ever, is Congress finally going to act to put an end to this continuing national disgrace that actually harms and kills refugees?

🇺🇸Due Process Forever!

PWS

10-27-21

☠️⚰️🏴‍☠️HAITI IS NOT “SAFE,” & THE PERVASIVE GANG VIOLENCE APPEARS TO BE POLITICALLY MOTIVATED! — “They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs. . . . It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption!” — So, Why Are Biden, Harris, Mayorkas, & Garland Illegally Returning Refugees There Without Hearing Their Asylum Claims?  👎🏽🤮

 

 

Catherine Porter
Catherine Porter
Toronto Bureau Chief
NY Times
PHOTO: NY Times website
Natalie Kitroeff
Natalie Kitroeff
Foreign Correspondent
NY Times
PHOTO: NY Times

https://www.nytimes.com/2021/10/21/world/americas/haiti-gangs-kidnapping.html?referringSource=articleShare

By Catherine Porter and Natalie Kitroeff

They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs.The gruesome massacre three years ago, considered the worst in Haiti in decades, was more than the work of rival gangs fighting over territory. It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption, the U.S. Treasury Department announced last year.

Since then, Haiti’s gang members have grown so strong that they rule swaths of the country. The most notorious of them, a former police officer named Jimmy Cherizier, known as Barbecue, fashions himself as a political leader, holding news conferences, leading marches and, this week, even parading around as a replacement for the prime minister in the violent capital.

. . . .

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

Read the rest of this gruesome, yet telling, report at the link.

Over 21 years on the Immigration Bench as both a trial and appellate judge, I adjudicated thousands of asylum claims. The circumstances described on this article undoubtedly would give rise to many potentially valid asylum and withholding claims, based on actual or implied political opinion and/or family or gender-based “particular social groups” and Convention Against Torture (“CAT”) grants based on torture with government acquiescence or actual connivance!

So, how do Biden, Harris, Mayorkas, and Garland, who to my knowledge have never represented an asylum applicant or adjudicated an individual asylum case among them, “get away” with simply suspending the rule of law, under false pretenses, for those entitled to seek asylum?

Stephen Miller must be on “Cloud Nine” as Biden & Co. carry out his White Nationalist plans to eradicate asylum, particularly when it protects women and people of color! This is even as Miller and his neo-Nazi cohorts (a/k/a “America First Legal”) are gearing up to sue the Biden Administration to block every measure that might aid immigrants, particularly those of color.

Stephen Miller Monster
He’s delighted with Biden’s abuse of  asylum seekers of color! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

By contrast with Miller’s delight, human rights NGOs have “had it” with the Biden Administration’s grotesque anti-asylum agenda! See, e.g.,https://m.dailykos.com/stories/2021/10/18/2058777/–We-refuse-to-be-complicit-Advocates-leave-Biden-admin-meeting-in-protest-of-Remain-in-Mexico-plan?detail=emaildkre

Haiti Corpses
NGOs don’t share the Biden Administration’s vision of what a “safe” Haiti looks like. Neither do kidnapped American missionaries!
PHOTO: Marcelo Casal, Jr., Creative Commons License

Angering and alienating your potential allies and supporters to aid the far-right program of your enemies who are determined to do whatever it takes to undermine, discredit, and destroy your Presidency! Obviously, I’m no political expert. But, sure sounds like an incredibly stupid, “designed to fail” strategy to me!

🇺🇸Due Process Forever!

PWS

1-23-21

☠️⚰️AMERICAN DEMOCRACY MIGHT NEVER RECOVER FROM THE 9-11 “DIRECT HIT!” — Our Response Revived One Of Vilest Aspects Of Our History, With A Corrupt DOJ Leading The Way: Misuse & Weaponization Of The Law To Abuse Human Rights & Shield The “Perps in Power” From Accountability: If You Want To Torture Illegally, Just Have Stooge Lawyers “Redefine” The Term! — Carlos Lozada @ WashPost

Torture? What torture? It’s merely “enhanced fact-finding!”

Star Chamber Justice
Public realm
Woman Tortured
“They all want to voluntarily waive further hearings and take final orders!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

 

Carols Lozada
Carlos Lozada
Journalist

Carlos writes: 

https://www.washingtonpost.com/outlook/interactive/2021/911-books-american-values/

. . . .

Lawyering to death.

The phrase appears in multiple 9/11 volumes, usually uttered by top officials adamant that they were going to get things done, laws and rules be damned. Anti-terrorism efforts were always “lawyered to death” during the Clinton administration, Tenet complains in “Bush at War,” Bob Woodward’s 2002 book on the debates among the president and his national security team. In an interview with Woodward, Bush drops the phrase amid the machospeak — “dead or alive,” “bring ’em on” and the like — that became typical of his anti-terrorism rhetoric. “I had to show the American people the resolve of a commander in chief that was going to do whatever it took to win,” Bush explains. “No yielding. No equivocation. No, you know, lawyering this thing to death.” In “Against All Enemies,” Clarke recalls the evening of Sept. 11, 2001, when Bush snapped at an official who suggested that international law looked askance at military force as a tool of revenge. “I don’t care what the international lawyers say, we are going to kick some ass,” the president retorted.

The message was unmistakable: The law is an obstacle to effective counterterrorism. Worrying about procedural niceties is passe in a 9/11 world, an annoying impediment to the essential work of ass-kicking.

Except, they did lawyer this thing to death. Instead of disregarding the law, the Bush administration enlisted it. “Beginning almost immediately after September 11, 2001, [Vice President Dick] Cheney saw to it that some of the sharpest and best-trained lawyers in the country, working in secret in the White House and the United States Department of Justice, came up with legal justifications for a vast expansion of the government’s power in waging war on terror,” Jane Mayer writes in “The Dark Side,” her relentless 2008 compilation of the arguments and machinations of government lawyers after the attacks. Through public declarations and secret memos, the administration sought to remove limits on the president’s conduct of warfare and to deny terrorism suspects the protections of the Geneva Conventions by redefining them as unlawful enemy combatants. Nothing, Mayer argues of the latter effort, “more directly cleared the way for torture than this.”

To comprehend what our government can justify in the name of national security, consider the torture memos themselves, authored by the Justice Department’s Office of Legal Counsel between 2002 and 2005 to green-light CIA interrogation methods for terrorism suspects. Tactics such as cramped confinement, sleep deprivation and waterboarding were rebranded as “enhanced interrogation techniques,” legally and linguistically contorted to avoid the label of torture. Though the techniques could be cruel and inhuman, the OLC acknowledged in an August 2002 memo, they would constitute torture only if they produced pain equivalent to organ failure or death, and if the individual inflicting such pain really really meant to do so: “Even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” It’s quite the sleight of hand, with torture moving from the body of the interrogated to the mind of the interrogator.

After devoting dozens of pages to the metaphysics of specific intent, the true meaning of “prolonged” mental harm or “imminent” death, and the elasticity of the Convention Against Torture, the memo concludes that none of it actually matters. Even if a particular interrogation method would cross some legal line, the relevant statute would be considered unconstitutional because it “impermissibly encroached” on the commander in chief’s authority to conduct warfare. Almost nowhere in these memos does the Justice Department curtail the power of the CIA to do as it pleases.

In fact, the OLC lawyers rely on assurances from the CIA itself to endorse such powers. In a second memo from August 2002, the lawyers ruminate on the use of cramped confinement boxes. “We have no information from the medical experts you have consulted that the limited duration for which the individual is kept in the boxes causes any substantial physical pain,” the memo states. Waterboarding likewise gets a pass. “You have informed us that this procedure does not inflict actual physical harm,” the memo states. “Based on your research . . . you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”

You have informed us. Experts you have consulted. Based on your research. You do not anticipate. Such hand-washing words appear throughout the memos. The Justice Department relies on information provided by the CIA to reach its conclusions; the CIA then has the cover of the Justice Department to proceed with its interrogations. It’s a perfect circle of trust.

Yet the logic is itself tortured. In a May 2005 memo, the lawyers conclude that because no single technique inflicts “severe” pain amounting to torture, their combined use “would not be expected” to reach that level, either. As though embarrassed at such illogic, the memo attaches a triple-negative footnote: “We are not suggesting that combinations or repetitions of acts that do not individually cause severe physical pain could not result in severe physical pain.” Well, then, what exactly are you suggesting? Even when the OLC in 2004 officially withdrew its August 2002 memo following a public outcry and declared torture “abhorrent,” the lawyers added a footnote to the new memo assuring that they had reviewed the prior opinions on the treatment of detainees and “do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”

In these documents, lawyers enable lawlessness. Another May 2005 memo concludes that, because the Convention Against Torture applies only to actions occurring under U.S. jurisdiction, the CIA’s creation of detention sites in other countries renders the convention “inapplicable.” Similarly, because the Eighth Amendment’s prohibition on cruel and unusual punishment is meant to protect people convicted of crimes, it should not apply to terrorism detainees — because they have not been officially convicted of anything. The lack of due process conveniently eliminates constitutional protections. In his introduction to “The Torture Memos: Rationalizing the Unthinkable,” David Cole describes the documents as “bad-faith lawyering,” which might be generous. It is another kind of lawyering to death, one in which the rule of law that the 9/11 Commission urged us to abide by becomes the victim.

Years later, the Senate Intelligence Committee would investigate the CIA’s post-9/11 interrogation program. Its massive report — the executive summary of which appeared as a 549-page book in 2014 — found that torture did not produce useful intelligence, that the interrogations were more brutal than the CIA let on, that the Justice Department did not independently verify the CIA’s information, and that the spy agency impeded oversight by Congress and the CIA inspector general. It explains that the CIA purported to oversee itself and, no surprise, that it deemed its interrogations effective and necessary, no matter the results. (If a detainee provided information, it meant the program worked; if he did not, it meant stricter applications of the techniques were needed; if still no information was forthcoming, the program had succeeded in proving he had none to give.)

“The CIA’s effectiveness representations were almost entirely inaccurate,” the Senate report concluded. It is one of the few lies of the war on terror unmasked by an official government investigation and public report, but just one of the many documented in the 9/11 literature.

. . . ,.

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

Sound painfully familiar? It should, to those of us “DOJ vets” who lived through this period. The use of the “third person,” “double and triple negatives,” “weasel words” like “you have given us to understand that,” “decision by committee” where a memo is routed through so many layers of bureaucracy that the original author or authors don’t even appear on its face — are all “devices” to diffuse and obscure responsibility and avoid clear accountability for controversial (and too often wrong) decisions!

During our time at the BIA, my fellow U.W. Badger, Judge Mike Heilman and I were often at odds on the law, particularly when it came to asylum. Anybody who doubts this should read Mike’s remarkable and famous (or infamous) “rabbi dissent” in Matter of H-, 21 I&N Dec. 337, 349 (BIA 1996) (Heilman, Board Member, dissenting). Nevertheless, one thing we agreed upon was requiring any decisions written for us to use the first person to reflect whose decision it actually was!

“Lawyers enable lawlessness.” How true! In 2002, DOJ lawyers (hand-chosen by the politicos) “tanked” and enabled, even encouraged, gross law violations by the CIA. 

Fast forward to 2018. Then, White Nationalist AG Jeff Sessions exhorted his wholly-owned “judges” at EOIR not to treat DHS enforcement as a party before the court, but rather as a worthy “partner” in combatting the largely-fabricated “scourge” of illegal immigration (that actually, as we can now see, was propping up Trump’s economy). Is it surprising that precedent decisions by Sessions, Whitaker, and Barr favored DHS nearly 100% of the time and the BIA thereafter issued almost no precedents where the individual prevailed (not that there were many of those following “the Ashcroft purge,” even before Sessions)?

Asylum grant rates in Immigration Court tumbled precipitously, while both the trial, and particularly appellate, levels at EOIR were “packed” with judges whose main qualification appeared to be an expectation that they would churn out large numbers of removal orders without much analysis or consideration of the factors favoring the individual. Misogyny and anti-asylum, anti-private-lawyer attitudes (those “dirty lawyers”) were encouraged by Sessions as part the “culture” at EOIR, sometimes visibly rewarded by “elevation” to the BIA.

Interestingly, at the same time in 2002 that the group of DOJ attorneys was furiously working in secret to justify torture, in clear violation of the Convention Against Torture (“CAT”), another group in the DOJ, the BIA, was struggling to make the CAT work in “real world” litigated cases. A number of us dissented from the majority of our BIA colleagues’ wrong-headed and rather transparent attempt to “neuter” CAT protection from the outset. Unlike the “secret lawyers” at the DOJ, our work was public and had consequences not only for the humans involved, but for those of us who had the audacity to stand up for their rights under domestic and international law!

Here’s an excerpt from my long-forgotten dissenting opinion in Matter of J-E-, 22 I&N Dec. 291, 314-15 (BIA 2002) (Schmidt, Board Member, dissenting):

The majority concludes that the extreme mistreatment likely to befall this respondent in Haiti is not “torture,” but merely “cruel, inhuman or degrading treatment.” The majority further concludes that conduct defined as “torture” occurs in the Haitian detention system, but is not “likely” for this respondent. In short, the majority goes to great lengths to avoid applying the Convention Against Torture to this respondent.

We are in the early stages of the very difficult and thankless task of construing the Convention. Only time will tell whether the majority’s narrow reading of the torture definition and its highly technical approach to the standard of proof will be the long-term benchmarks for our country’s implementation of this international treaty.

Although I am certainly bound to follow and apply the majority’s constructions in all future cases, I do not believe that the majority adequately carries out the language or the purposes of the Convention and the implementing regulations. Therefore, I fear that we are failing to comply with our international obligations.

I conclude that the respondent is more likely than not to face officially sanctioned torture if returned to Haiti. Therefore, I would grant his application for deferral of removal under the Convention Against Torture and the implementing regulations. Consequently, I respectfully dissent.

Within a year of that decision, my dissenting colleagues and I were among those “purged” from the BIA by Ashcroft because of our views. I’d argue that EOIR has continued to go straight downhill since then, and is now in total free fall! Surely, any “facade” of quasi-judicial independence at the BIA has long-since crumbled. Yet, AG Garland pretends there is no problem. Garland’s apparent belief that this is still Judge Bell’s or Ben Civiletti’s or even Ed Levi’s DOJ is simply, demonstrably, wrong. 

Today’s DOJ has been part and parcel of a highly inappropriate “weaponization” of the law and “Dred Scottification” directed against individual civil rights, migrants, voters, women, people of color, and a host of “others” who were on the far right “hit list” of the Trump kakistocracy. Nowhere has that been more evident than at the dysfunctional and institutionally biased EOIR. The problems plaguing American justice today have increased since 9-11. They will continue to fester and grow unless and until Garland faces reality and makes progressive leadership and judicial changes at EOIR to addresses the toxic culture of complicity and abusive use of the law to degrade individual and human rights. And, some real accountability at the rest of the badly-damaged DOJ should not be far behind.

🇺🇸Due Process Forever!

PWS

09-05-21