Category: “Women in XXXXXX Country”

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

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  4. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!

⚖️👩🏽‍⚖️👨🏼‍⚖️⚔️🛡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

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. 🔮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!
  3. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  4. NDPA STALWART JASON “THE ASYLUMIST” DZUBOW 🌟 QUOTED IN AP ARTICLE ABOUT REPEAL OF A-B- & L-E-A-!

🚂🛤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

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. FELIPE DE LA HOZ @ THE NATION: “The Shadow Court Cementing Trump’s Immigration Policy” — “It’s not a court anymore, it’s an enforcement mechanism,” said Paul Wickham Schmidt, who was himself chair of the BIA between 1995 and 2001 and now writes a popular immigration blog called Immigration Courtside. “They’re taking predetermined policy and just disguising it as judicial opinions, when the results have all been predetermined and it has nothing to do or little to do with the merits of the cases.”

🔮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

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

“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

Related posts:

  1. ⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  4. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯

☠️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

Related posts:

  1. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. 🏴‍☠️CLOSING THE BORDER TO LEGAL ASYLUM SEEKERS IS A VIOLATION OF BOTH DOMESTIC & INTERNATIONAL LAW — It’s Neither Something To Tout (Biden Administration) Nor A Solution (GOP) (Except, Perhaps, In The “Hitlerian” Sense) — Our Inability To Solve A Humanitarian Situation By Acting Lawfully, Sensibly, & Humanely Is A Sign Of Gross National Weakness Spurred By Unwillingness To See The Human Tragedies We Are Promoting! — And The Lousy, Misleading, & Tone-Deaf Reporting By The Some Of The “Mainstream Media” Is Making It Worse! — Leon Krauze & Suzanne Gamboa With Simple Truths About Human Migration That Neither Pols Nor Nativists Want You To Hear! — PLUS BONUS COVERAGE: Friday Mini-Essay: “Degrading Ourselves As A Nation Won’t Stop Human Migration”
  4. ⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!

⚖️🗽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 

Related posts:

  1. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!

☠️🤮👎🏽 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

Related posts:

  1. ⚖️🗽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!”
  2. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  3. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  4. 😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

☠️ 9TH CIR. PELTS BIA WITH MORE ROTTEN TOMATOES 🍅! — Attempt To Deport Refugee Woman Entitled To Asylum, Withholding & CAT Thwarted! — BIA Wrongly Conflates Registered Nurse With Taxi Driver In Insane Misogynistic Bid To Return Mexicana Refugee To Death!⚰️👎🏽

Woman Tortured
“Taxi to Falls Church, anyone?”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

 

Plancarte Sauceda v. Garland, 9th Cir., 08-20-21, (Panel = Fletcher, Watford, Collins; Opinion = Fletcher)

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/19-73312.pdf

Court staff summary:

. . . .

Citing Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), the Board concluded that “female nurses” were not a cognizable “particular social group” because being a nurse, like being a taxi driver, is not an immutable characteristic. The panel held that the Board erred by simply citing Matter of Acosta, and failing to provide any meaningful analysis about the immutability of “female nurses.” The panel explained that in contrast to Acosta, Plancarte cannot avoid compulsion by the cartel simply by changing jobs, because even if she ceased employment as a nurse, she would still be a nurse, as she has received specialized medical training and has a professional license as a nurse. Moreover, the cartel targeted Plancarte precisely because of her specialized nursing skills, and threatened her and her family with torture and death to force her to use those skills to provide medical treatment to the cartel. Thus, regardless of whether she would continue to work as a licensed nurse, Plancarte lacks “the power to change” the immutable nursing characteristics—her medical knowledge and nursing skills—that make her important to the cartel. The panel therefore granted the petition with respect to Plancarte’s asylum and withholding of removal claims, and remanded for consideration of the other required characteristics of her proposed particular social group of “female nurses.”

Turning to Plancarte’s CAT claim, the panel concluded that the Board’s decision ignored uncontradicted record evidence showing both acquiescence and direct involvement by government officials. The panel held that substantial evidence therefore compelled the conclusion that there was official involvement and acquiescence in the cartel forcing Plancarte to provide medical treatment to cartel members. The panel granted the petition with respect to CAT, and remanded for a determination whether the likelihood of

4 PLANCARTE SAUCEDA V. GARLAND

torture if Plancarte were returned to Mexico is sufficient to warrant CAT relief.

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

Welcome to the “any reason to deny culture” at Garland’s EOIR! 

In addition to the gross errors noted by the panel, I also think that there is a winning argument that being a registered nurse is “fundamental to identity” and therefore not something we should require an individual to change. Put it in today’s COVID context, for Pete’s sake!

Think that being a lawyer isn’t “fundamental” to the identity of a BIA Appellate Judge, an Immigration Judge, or an Article III Judge? Only when these “judges” are thinking of ways to deny protection to others do they engage in such obvious intellectual dishonesty and absurd reasoning! 

This is the type of case that should have been a “quick grant” and a precedent for other grants of protection in a functioning justice system! Instead it’s an disaster! One that just happens to have been “outed” by a conscientious Court of Appeals panel — something no person of color can count on! It should be no mystery why this maliciously incompetent system creates huge, growing, out of control backlogs while squandering public resources and destroying lives!

  • Immigration Court  — Failure
  • BIA — Failure
  • OIL — Failure
  • Garland — Failure

And this gang is going to be in charge of setting precedents and protecting due process and human rights of women and other asylum seekers under the Administration’s proposed “streamlined” asylum system? Absurd! It will be a death sentence for far too many refugees! 

Congrats to Vallerye Allyn Anderson for saving a life here! Her outstanding performance and understanding of human rights were far superior to that of any “judge” or other DOJ lawyer involved in this case. So, why are the wrong judges still making life or death decisions at EOIR without competent “adult supervision” from qualified judges at the BIA with expertise in asylum law and the guts to apply it correctly, humanely, and generously? See, e.g., Cardoza-Fonseca, Mogharrabi, Kasinga. Just hope that Vallerye and others like her will pursue EOIR judgeships until the disgraceful, deadly, two-decade old “progressive expert lockout from the 21st Century Immigration Judiciary” finally ends and quality, courage, and due process prevail!

Vallerye Allyn Anderson
Vallerye Allyn Anderson ESQ
Sacramento, CA
PHOTO: LexisNexis

🇺🇸Due Process Forever! Failure to “clean house” of Miller Lite White Nationalism, it’s acolytes, go along to get along toady enablers, and to bring common sense, long overdue, obvious, recommended, available progressive human rights reforms and better judges and leaders to EOIR — An ongoing national disgrace!🤮

PWS

08-22-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. 🏴‍☠️BIA’S MISOGYNISTIC, ANTI-ASYLUM, IGNORE THE EXPERTS & THE EVIDENCE APPROACH 🤮 REBUKED AGAIN — 9th Cir. Slams BIA Big Time In Rodriguez Tornes v. Garland! — “Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a ‘personal relationship.’”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯

‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

https://www.jeffreyschase.com/blog/2021/6/21/first-steps

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

The latest from the Hon. “Sir Jeffrey:”

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

First Steps

On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1  Matter of A-B-,  issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2  Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3  And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4

Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being.  Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment.  If final rules are eventually published, it will occur well into next year.

As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.

As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5  That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6  While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.”  In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone.  Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave.  While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.

As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7  While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.

For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country.  While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.

First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone.  In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8  However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.

The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9  And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset.  The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10  Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.

But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection.  In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.

The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous.  However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.

The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County.  The Court explained that the test

incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, 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.11

In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that 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.”12  But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.

Had the proper test for nexus been employed in L-E-A-, asylum would have been granted.  Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist.  However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13

As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course.  The problem is compounded by the particular composition of the BIA at present.  For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims).  Three had an asylum denial rate in excess of 98 percent.14

This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-.  This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state.  The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.

One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy.  Might it have been because of her gender?

Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward.  Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.

Copyright 2021, Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (“A-B- III”); Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021) (“L-E-A- III”).
  2. 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”).
  3. 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”).
  4. 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”).
  5. 26 I&N Dec. 388 (BIA 2014).
  6. The regulations under consideration at that time were never issued.
  7. 27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).
  8. UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.
  9. James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.
  10. Hathaway and Foster, supra.
  11. Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).
  12. Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
  13.  L-E-A- I, supra at 47.
  14. See TRAC (Transactional Records Access Clearinghouse) Immigration Judge Reports https://trac.syr.edu/immigration/reports/judgereports/.Republished with permission.

 

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

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! 
    • Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
      • Progressive judges appointed to BIA: 0
      • Progressive judges appointed to Immigration Court: 0
      • Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
      • Billy Barr Selected Immigration Judges Appointed: 17
      • “Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
      • Number of BIA precedents decided in favor of respondent: 2
      • Number of BIA precedents decided in favor of DHS: 9

That’s right, folks: Billy Barr and Stephen Miller have had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense? 

Miller Lite
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!

Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!

🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴‍☠️

PWS

06-22-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  3. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

NDPA STALWART JASON “THE ASYLUMIST” DZUBOW 🌟 QUOTED IN AP ARTICLE ABOUT REPEAL OF A-B- & L-E-A-!

Jason Dzubow
Jason Dzubow
The Asylumist

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=a9dc6320-82bc-4db8-bb6b-cfba11a536cb

AP reports:

The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.

Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.

“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”

Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.

Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.

. . . .

In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.

One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.

Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.

Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.

“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”

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

Read the full article at the link.

You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!

I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again! 

Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!

Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony. 

To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.

David Martin
Professor (Emeritus) David A. Martin
UVA Law
PHOTO: UVA Law

Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.

At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!

But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it. 

However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR! 

Amateur Night
Time for this long-running show at DOJ/EOIR to end!   PHOTO: Thomas Hawk
Creative Commons
Amateur Night

 

🇺🇸Due Process Forever!

PWS

06-18-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯

 

Gender Violence in Central America
Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!” 
PHOTO: UNHCR website

https://www.dallasnews.com/opinion/commentary/2021/06/03/abuse-of-women-and-children-at-root-of-immigration-crisis/

Abused women at border
Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)
Natalie Gonnella-Platts
Natalie Gonnella-Platts
Director, Women’s Initiative
George W. Bush Institute
PHOTO: Bush Institute
Jenny Villatoro
Jenny Villatoro
Associate, George W. Bush Institute-SMU Economic Growth Initiative
PHOTO: George W. Bush Institute

By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:

When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.

But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.

Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.

Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.

Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.

They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.

Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.

Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.

COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.

Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.

According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.

Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.

Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.

Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.

How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.

Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.

Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.

Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.

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

“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.

What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”

With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system! 

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

Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.

For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?

Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.

George W. Bush
030114-O-0000D-001.President George W. Bush. Photo by Eric Draper, White House. “Why is this guy willing to speak up for immigrants’ rights . . . .

Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences. 

Judge Merrick Garland
“ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland
Official White House Photo
Public Realm

What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!” 

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism, still right at home at Garland’s EOIR!
Woman Tortured
“She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?

Vice President Kamala Harris
Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here!
Vice President of the United States
(Official Senate Photo)

I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!

Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!

There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders! 

By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!

🇺🇸🗽⚖️🧑🏽‍⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”

PWS

06-05-21

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

Judge Merrick Garland
Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?”
Official White House  Photo
Public Realm
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:

https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/doc/18-1083_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/hilite/

https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/doc/19-1370_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/hilite/

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

These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”

Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.

Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮

Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.

It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem: 

  • Remove the Trump/Miller holdovers @ EOIR;
  • Prune out the “go along to get along” deadwood;
  • Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
  • Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR –  NOW;
  • Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.

So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day! 

Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!

Miller Lite
Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color
Woman Tortured
Abused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons


🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-24-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. 🇺🇸🗽⚖️GEORGE W. BUSH INSTITUTE REPORT: GENDER VIOLENCE ☠️⚰️DRIVES CONTINUING REFUGEE FLOW TO U.S. — Dishonesty Of Sessions’s Misogynistic Attack In Matter Of A-B- 🤮 Exposed Again! — Yet, Garland Fails To Take Action To End Misogyny, Anti-Asylum Culture @ EOIR, Even As He Also Fails To Insist On The Restoration Of The Rule Of Law @ Our Borders! —  WHY?🤯
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!

🇺🇸⚖️STRAIGHT TALK FROM HON. JEFFREY S. CHASE: “[F]or decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that ‘this is not their world.’ The time has come to finally put an end to this sad substitute for true administrative appellate review.”

Trial by Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Trial By Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
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/2021/4/6/the-bias-mansplaining-of-gender-based-asylum

Blog Archive Press and Interviews Calendar Contact

The BIA’s Mansplaining of Gender-Based Asylum

“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”

Rebecca Solnit, Men Explain Things to Me

On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland.  The opening sentences of the decision are heartbreaking:

Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.

But along with the darkness there was also hope.  The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”

Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission.  As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband.  Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief.  Neither the police nor her own family offered her any possibility of protection.

When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country.  In 2017, our government deported both her and her latest abuser.  Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.

Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion.  The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.

It isn’t clear why ICE appealed the IJ’s decision.  On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights.  And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision.  According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser.   According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.

Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration.  Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner.  So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.

Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’”  Prof. Lemon went into great detail in explaining the political nature of the mistreatment.  Of course, it mattered not to the Board.

In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago.  In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1  In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.

In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2  28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3  These were obviously not the decisions of liberal judges forwarding a political agenda.  To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do.  As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse.  Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.

Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society.  In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4

When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter?  And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?

The BIA decided this case during the Trump Administration.  For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims.  Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group.  The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived.  Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize.  The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions.  While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.

Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before.  For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place.  The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7  The BIA continues to be composed of the exact same group of judges who issued each of those decisions.

It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts.  Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum.  Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.”  The time has come to finally put an end to this sad substitute for true administrative appellate review.

Notes:

  1. Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
  2. Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
  3. Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
  4. Matter of A-B-, 27 I&N Dec. 316, 339 (A.G. 2018).
  5. 22 I&N Dec. 906 (BIA 1999).
  6. Kaur v. Wilkinson, No. 18-73001, __ F.3d __ (9th Cir., Jan. 29, 2021).
  7. Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).

Copyright 2021, Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct. 

https://immigrationcourtside.com/2021/04/06/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8fbias-misogynistic-anti-asylum-ignore-the-experts-the-evidence-approach-%f0%9f%a4%ae-rebuked-again-9th-cir-slams-bia-big-time-in-rodriguez/

And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.

COURTSIDE HISTORY: LEST WE FORGET: THE “ASHCROFT PURGE” AT THE BIA IN 2003 DESTROYED THE PRETEXT OF JUDICIAL INDEPENDENCE AT EOIR FOREVER – HERE’S HOW! — Read Peter Levinson’s 2004 Paper: “The Facade Of Quasi-Judicial Independence In Immigration Appellate Adjudications”

In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow. (We are now in the “New Era of Jim Crow.”)

Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?

🇺🇸⚖️🗽Due Process Forever!

PWS

04-07-21

Related posts:

  1. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!

 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

https://lawprofessors.typepad.com/immigration/2021/03/guest-post-the-wrong-answer-to-the-right-question-how-to-address-the-failure-of-protection-for-gende.html

By Immigration Prof

Share

The Wrong Answer to the Right Question:  How to Address the Failure of Protection for Gender-Based Claims?

By Professor Karen Musalo, Bank of America Professor of International Law, Director of the Center for Gender & Refugee Studies, UC Hastings

In 1996 I was honored to litigate the first case at the Board of Immigration Appeals (BIA), Matter of Kasinga,[1] that opened the door to protection for women fleeing gender-based harms.  To qualify for recognition as a refugee under U.S. law, an individual must establish “persecution or a well-founded fear of persecution” on account of one of five grounds – “race, religion, nationality, political opinion or membership in a particular social group.”[2]  This definition in the 1980 Refugee Act essentially adopts the standard set forth in the 1951 UN Refugee Convention[3] and its 1967 U.N. Refugee Protocol,[4] which the U.S. ratified in 1968.

The woman seeking asylum in the Kasinga case fled female genital cutting and forced marriage.  In a ground-breaking decision, the BIA ruled that cutting was persecution, and it was “on account of” her membership in a gender-defined social group.  In so ruling, the BIA was following the guidance that UNHCR has issued over a number of years, noting that the absence of gender as a protected ground should not impede protection for women fleeing persecution, because the particular social group ground encompasses gender-defined groups.[5]

The Kasinga decision was a breakthrough for women, and a highwater mark in U.S. adjudicators following international guidance.  It also raised expectations that U.S. law would continue to evolve and extend protection to women fleeing the many forms of gender-based violence to which they are subject.  However, that has not been the case, and there have been retreats from protection across administrations, although undoubtedly we witnessed the most dramatic attempts to end protection in gender claims during the Trump administration, which issued extremely limiting Attorney General decisions, such as Matter of A-B- I,[6] and Matter of A-B- II –[7] as well as regulations[8] – currently enjoined[9]—that explicitly rule out gender-based claims.

The Biden administration has committed itself to reviewing the issue of protection for those fleeing gender-based violence.[10]  As we consider how to remedy the issue, some argue for a legislative amendment to the refugee definition, adding gender as a sixth ground to the statute’s five protected grounds of race, religion, nationality, political opinion and membership in a particular social group.  This is the wrong solution.  It would not only repeat the errors of the past (amending the refugee definition in 1996, discussed below), but it would also fail to adequately protect survivors of gender-based violence.  At the same time, it would lead to the quite foreseeable consequence of leaving many deserving asylum seekers outside the ambit of refugee protection.  It is also likely to signal to other Convention State parties that unless they also add a sixth ground, they could deny protection to women and girls without running afoul of the treaty’s obligations.

In order to prescribe a remedy, one first has to diagnose the illness; in order to understand why the sixth ground solution is wrong, we need to examine what occurred after Kasinga that limited protection in subsequent claims involving women fleeing gender-based persecution. . . . .

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

Read the rest of Karen’s outstanding analysis at the link.

Here’s a question from last summer’s “Jeopardy style” final exam in Immigration Law & Policy @ Georgetown Law:

A: Judge Schmidt’s favorite case.

Q: What is Matter of Kasinga?

Happy to say that everyone got that one right! Of course, I wrote the decision in Matter of Kasinga!

Karen’s bottom line: “We should be working to bring the U.S. into compliance with UNHCR’s social group interpretation, rather than surrendering to its flawed interpretation, by adding a sixth ground.”

The key is better Federal Judges, from the Immigration Courts all the way up to the Supremes: Judges who are “practical scholars” in human rights and applied due process; judges who have represented asylum seekers, particularly women, and understand their plight.

This week, President Biden announced the creation of the White House Gender Policy Council. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-establishment-of-the-white-house-gender-policy-council/

That’s a nice gesture. But, as I always say, actions are what really counts. So here are actions that Judge Garland can take immediately as Attorney General to finally fulfill the promise of Matter of Kasinga:

  • Vacate the atrocious, misogynist, perversion of asylum law (not to mention facts of record) by Sessions in Matter of A-B-;
  • Appoint some female “practical scholars in human rights” to appellate judgeships on the BIA.

That’s how to really honor Women’s History Month!

To understand the human impact of Sessions’s grotesque misconstruction of asylum law and the relevant facts in Matter of A-B-, check out this video short featuring Karen and others along with Ms. A-B-:   https://www.youtube.com/watch?v=QRQpXRWlQL0

I generally agree with Karen’s concerns about specific gender-based legislation potentially having an unintended negative effect. That is certainly the fate of past unsuccessful attempts to include gender-based asylum in the regulations.

They essentially were “hijacked” by DOJ litigators and enforcement-oriented policy officials looking for ways to facially appease women’s rights groups, while actually proposing to restrict eligibility and make it easier for OIL and the SG’s Office to defend denials of asylum. They also sought to create hyper-technical requirements that would have effectively made it impossible for any unrepresented individual to properly set forth a “cognizable particular social group.”

These, in and of themselves, are reasons for removing the Immigration Courts from the DOJ and creating an independent Article I structure. The “ultimate insult to injury” was when EOIR enthusiastically participated in Stephen Miller’s currently-enjoined attempt to completely write gender-based asylum out of the law. Absurdly, that came at a time when gender-based persecution has become endemic throughout the world!

Not surprisingly, the DOJ, a prosecutorial agency at heart, is most often interested in “litigation strategies” to make it easier for the Government to successfully defend the burgeoning immigration litigation in Federal Court, rather than guaranteeing justice for asylum seekers and other migrants. Quite ironically, what would really reduce the volume of civil immigration litigation is more practical, expert decision making from better qualified Immigration Judges at the “retail level” of the system.

Gimmicks to “game” the Federal Court system against asylum seekers and other migrants by skirting due process and fundamental fairness have actually contributed to, rather than reduced, the amount of civil immigration litigation the Circuits. It has also generated many avoidable “Circuit conflicts” that require attention on Supremes’ limited docket. The failure of the DOJ, the Immigration Courts, and the Federal Courts to recognize and protect the due process rights of asylum seekers and other migrants has directly carried over into the failure of our justice system to achieve equal justice under law for racial minorities.

“Institutionalized racism” is inextricably linked to “Dred Scottification” of migrants of color in the Immigration Courts! The Biden Administration can’t solve the former without addressing the latter!

Bad judging and skewed policies on the “retail level” create multiple problems that adversely affect the entire Federal Justice system. I guarantee that they will not be solved by more restrictionist gimmicks and and unduly narrow and tone-deaf interpretations by judges and policy officials who lack the necessary expertise in immigration and human rights laws and the real-life understanding and perspective of the human consequences of the choices that judges make on a daily basis.

But, I also think that in addition to better judges, it is important to revise the statutory language to make it more explicitly inclusive and clarify that gender-based asylum, family based asylum, and other protected groups are examples, but not limits, of those covered by “particular social group.” Also, the statute should reverse the BIA’s stilted restrictionist interpretations (all too often incorrectly given “deference” by Circuit Courts shirking their duty) of “nexus” as a vehicle to deny asylum rather than an expansive concept that can and should be used to extend life-saving protections where necessary.

Otherwise, as Trump, Sessions, Barr, and Miller demonstrated, needed protection becomes largely a matter of who is appointing the judges at any particular point in time. Protection must and should be more durable — for all refugees including, but not limited, to those seeking  gender-based protection!

Better Federal Judges are the beginning, but by no means the end, of what is needed to make due process, fundamental fairness, and genuine refugee protections the hallmarks of American law. They are also required to turn institutionalized racism into equal justice for all persons in America, regardless of race, religion, gender, or other defining personal characteristics.

🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽‍⚖️🛡

PWS

03-10-21

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!
  3. ⚖️🗽🧑🏽‍⚖️”MEDLEY OF INJUSTICE” — CIRCUITS CONTINUE TO LOWER HAMMER 🔨 ON BIA: Anti-Asylum Misogyny; Illegal & Incredibly Stupid “Policies;” “Perplexing” Lack Of Legal Knowledge Highlighted In Latest Batch Of Reversals! — “Attempted rape by a gang of men, in broad daylight on a public street, is especially terrorizing because it powerfully demonstrates the perpetrator’s domination, control over the victim and imperviousness to the law. Requiring evidence of additional harms both minimizes the gravity of the sexual assault and demeans the victim.”
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

🏴‍☠️HONDURAS IS A HOTBED OF MISOGYNY, CORRUPTION, & ONE OF THE MOST DANGEROUS ☠️ COUNTRIES IN THE WORLD — The Trump Regime Fraudulently Designated As A “Safe Third Country” — Persecuted Women Still Struggle To Get Protection In EOIR’s Broken & Biased System!🦹🏿‍♂️

Trump Dumping Asylum Seekers in Hondiras
Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Nina Lakhani
Nina Lakhani
Central American Reporter,
The Guardian, Photo: TheDailyBeast.com

https://www.theguardian.com/world/2021/feb/12/honduras-femicide-keyla-martinez-women-violence?CMP=Share_iOSApp_Other

Nina Lakhani reports for The Guardian:

Keyla Martínez screamed for help from inside the police cell, but no one came to save her.

Martínez, a 26-year-old trainee nurse from La Esperanza, western Honduras, died in police custody last weekend after being detained for breaching a coronavirus curfew.

Police officers initially claimed Martínez had killed herself. But a preliminary autopsy found she had died from “mechanical asphyxiation” and prosecutors announced they were investigating her death as a murder.

How Honduras became one of the most dangerous countries to defend natural resources

She was the latest victim in a relentless wave of misogynistic killings and state-sponsored violence in Honduras – one of the most dangerous and corrupt countries in the Americas. Twenty-nine women have been killed so far this year in Honduras, which has a population of about 9 million – only slightly more than New York City.

Advertisement

Upgrade to Premium and enjoy the app ad-free.

Upgrade to Premium

This week, security forces have teargassed protesters demanding truth and justice for the young nurse. Human rights groups are also demanding accountability amid the alarming escalation of deadly violence against women. At least six women have been killed since Martínez died.

“This killing has all the hallmarks of an extrajudicial execution and must be investigated as such,” said Erika Guevara-Rosas, Americas director at Amnesty International.

“Grave human rights violations such as the killing of Keyla Martínez do not happen in a vacuum. They are the product of rampant impunity and the lack of political will to address the human rights crisis in Honduras. This dire context has produced a relentless and widespread stream of abuses by state security forces.”

Honduras is one of the most dangerous countries in the world to be a woman or girl. It is a deeply machista society where conservative church leaders exert a powerful influence over the personal and political spheres – including women’s access to reproductive healthcare and protection from violence.

Last month, congress voted to amend the constitution to make it virtually impossible to overturn the country’s abortion laws – which are already some of the strictest in Latin America.

In 2009, a coup orchestrated by a network of military, economic, political and religious elites, ushered in an authoritarian government, which remains in power despite multiple allegations of corruption, extrajudicial killings, electoral fraud and ties to international drug trafficking networks.

Advertisement

Upgrade to Premium and enjoy the app ad-free.

Upgrade to Premium

Since then emigration has risen dramatically, as hundreds of thousands of men, women and children have fled north looking for safety and jobs. A culture of impunity has also meant that violence against women has only worsened.

In the decade before the coup, 222 women were murdered annually, according to analysis by the Centre for Women’s Studies – Honduras (CEM-H). In the past five years, 381 have been killed on average annually. Ninety-six per cent of the murders remain unsolved.

Honduras lawmakers seek to lock in ban on abortion for ever

“The militarization of the country since the coup has increased the threat to women’s lives, there are guns everywhere and we know the police have links to criminal gangs,” said Suyapa Martínez (no relation to Keyla Martínez) from CEM-H, a feminist organisation based in Tegucigalpa.

. . . .

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

Read the rest of the article at the link.

Refugee women continue to flee Honduras, even though the Trump regime misogynist nativists have skewed asylum law to make it more difficult for them to gain legal protection.

The Biden Administration has directed consideration of gender-based asylum regulations. It’s hardly a new idea — former AG the late Janet Reno ordered development of regulations regularizing the granting of “gender-based” asylum claims two decades ago. 

Those efforts were basically sabotaged by DOJ bureaucrats and litigators more interested in narrowing asylum eligibility and making denials easier to defend than they were in protecting women — one of the world’s most persecuted groups by any reasonable accounting.

After years of screwing around, including eight years of inaction during the Obama Administration, super-misogynist and anti-asylum racist Stephen Miller arrived. He perversely came up with absurdly illegal regulations that incredibly purported to bar gender-based asylum claims! Those illegal (not to mention immoral) regulations have been enjoined. Nevertheless, the anti-asylum, anti-woman, anti-Latino attitudes and “judicial” decision-making at EOIR and DHS remain deeply ingrained!

The lesson: Changing policies in the bureaucracy requires something in addition to high level support. It requires bureaucrats who actually believe in the change and are committed to making it happen! That’s why dismantling the Trump immigration kakistocracy and getting better qualified individuals at all levels is so important.

Moreover, for lasting “Miller proof” change: Get it into legislation!

🇺🇸⚖️🗽Due Process Forever!

PWS

02-13-21

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. DOCTORS WITHOUT BORDERS: “More than two-thirds of migrants fleeing Central American region had family taken or killed!” — “We’re speaking of human beings, not numbers!”– As Evidence Mounts Of Regime’s “Crimes Against Humanity,” DHS Trump Toady & Unapologetic “Dehumanizer” Mark Morgan Proudly Touts “Success” Of “Extermination As Deterrence” Policies!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. 🇺🇸⚖️🗽HON. JEFFREY S. CHASE: UNETHICAL, 🏴‍☠️WHITE NATIONALIST,⚰️ MISOGYNIST 🤮“WAR CRIMINAL” ☠️JEFFREY ROSEN TAKES COWARDLY🐓 PARTING SHOT AT REFUGEE🦸🏻 WOMEN! — DOJ Clean-Out, 🧹🪠🧻Fumigation, & Restaffing With Ethical Attorneys Can’t Begin Soon Enough!