Past Persecution – Page 10 – immigrationcourtside.com

PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

HON. BRUCE J. EINHORN IN WASHPOST: SESSIONS’S BLATANT ATTEMPT TO INTIMIDATE U.S. IMMIGRATION JUDGES TO DEPORT INDIVIDUALS IN VIOLATION OF DUE PROCESS SHOWS A SYSTEM THAT HAS HIT ROCK BOTTOM! — Are There Any “Adults” Out There In Congress Or The Article III Courts With The Guts To Stand Up & Put An End To This Perversion Of American Justice? — “Due process requires judges free of political influence. Assembly-line justice is no justice at all.”

https://www.washingtonpost.com/opinions/jeff-sessions-wants-to-bribe-judges-to-do-his-bidding/2018/04/05/fd4bdc48-390a-11e8-acd5-35eac230e514_story.html?utm_term=.770822e8f813

My former colleague Judge Bruce J. Einhorn writes in the Washington Post:

Bruce J. Einhorn, an adjunct professor of immigration, asylum and refugee law at Pepperdine University, served as a U.S. immigration judge from 1990 to 2007.

It’s a principle that has been a hallmark of our legal culture: The president shouldn’t be able to tell judges what to do.

No longer. The Trump administration is intent on imposing a quota system on federal immigration judges, tying their evaluations to the number of cases they decide in a year. This is an affront to judicial independence and the due process of law.

I served as a U.S. immigration judge in Los Angeles for 17 years, presiding over cases brought against foreign-born noncitizens who Immigration and Customs Enforcement officers believed were in this country illegally and should thus be removed. My responsibility included hearing both ICE’s claims and the claims from respondents for relief from removal, which sometimes included asylum from persecution and torture.

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As a judge, I swore to follow the Fifth Amendment of the U.S. Constitution, which guarantees that “no person” (not “no citizen”) is deprived of due process of law. Accordingly, I was obliged to conduct hearings that guaranteed respondents a full and reasonable opportunity on all issues raised against them.

My decisions and the manner in which I conducted hearings were subject to review before the U.S. Board of Immigration Appeals and U.S. courts of appeals. At no time was my judicial behavior subject to evaluation based on how quickly I completed hearings and decided cases. Although my colleagues on the bench and I valued efficiency, the most critical considerations were fairness, thoroughness and adherence to the Fifth Amendment. If our nativist president and his lapdog of an attorney general, Jeff Sessions, have their way, those most critical considerations will become a relic of justice.

Under the Trump-Sessions plan, each immigration judge, regardless of the nature and scope of proceedings assigned to him or her, will be required to complete 700 cases in a year to qualify for a “satisfactory” performance rating. It follows that only judges who complete more, perhaps many more, than 700 cases per year will qualify for a higher performance rating and, with it, a possible raise in pay.

Essentially, the administration’s plan is to bribe judges to hear and complete more cases regardless of their substance and complexity, with the corollary that judges who defy the quota imposed on them will be regarded as substandard and subject to penalties. The plan should be seen for what it is: an attempt to undermine judicial independence and compel immigration judges to look over their shoulders to make sure that the administration is smiling at them.

This is a genuine threat to the independence of the immigration bench. While Article III of the Constitution guarantees the complete independence of the federal district courts and courts of appeal, immigration judges are part of the executive branch. Notwithstanding the right of immigration judges to hear and decide cases as they believe they should under immigration law, they are unprotected from financial extortion and not-so-veiled political intimidation under the U.S. Administrative Procedure Actor any regulations.

Moreover, federal laws do not guarantee respondents in removal hearings a right to counsel, and a majority of those in such hearings are compelled to represent themselves before immigration judges, regardless of the complexity of their cases. Those who lack representation in removal hearings typically cannot afford it, and the funds to help legal aid organizations fill in for private attorneys are nowhere to be found.

Hearings in which respondents proceed pro se, or unrepresented, are often the most challenging and time-consuming for immigration judges, who must take care to assure that the procedural rights of those facing possible removal are protected and to guarantee that inarticulate relief claims are fully considered.

The Trump administration’s intention is clear: to intimidate supposedly independent judges to expedite cases, even if it undermines fairness — as will certainly be the case for pro se respondents. Every immigration judge knows that in general, it takes longer to consider and rule in favor of relief for a respondent than it does to agree with ICE and order deportation. The administration wants to use quotas to make immigration judges more an arm of ICE than independent adjudicators.

In my many years on the immigration bench, I learned that repressive nations had one thing in common: a lack of an independent judiciary. Due process requires judges free of political influence. Assembly-line justice is no justice at all.

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Thanks, Bruce for speaking out so forcefully, articulately, and truthfully!

Jeff Sessions is a grotesque affront to the U.S. Constitution, the rule of law, American values, and human decency. Every day that he remains in office is a threat to our democracy. There could be no better evidence of why we need an independent Article I U.S. Immigration Court!

Due Process Forever! Jeff Sessions Never! Join the New Due Process Army Now! The fight must go on until Sessions and his toxic “21st Century Jim Crows” are defeated, and the U.S. Immigration Courts finally are forced to deliver on the betrayed promise of “guaranteeing fairness and due process for all.” Harm to the most vulnerable among us is harm to all!

PWS

04-05-18

HEIDI BOAS @ WILKES LEGAL: Following A Colossal 14-Year Battle, The U.S. Asylum System Saved Rodi Alvarado’s Life – Can Jeff Sessions Undo This Critically Needed, Life-Saving Protection For Thousands Of Women & Children Like Rodi With A Single Stroke Of His Pen?

Issue Spotlight:

Will America Shut Its Doors to Immigrant Survivors of Domestic Violence?

by Heidi Boas, Immigration Attorney

Wilkes Legal, LLC

April 5, 2018

Will the U.S. continue to offer asylum to

immigrant survivors of domestic violence

like Rodi Alvarado Peña?

In January 2018, Wilkes Legal won asylum for an immigrant mother and her children who escaped over a decade of extreme physical, psychological, and sexual abuse that sent our client to the hospital and left one of her children with a permanent physical impairment. Because our client’s domestic partner was a high-ranking military officer in their home country, her pleas for help from government authorities fell on deaf ears, causing her to flee the country for her safety. In recent years, the United States has offered asylum protection to domestic violence survivors like this client. A recent move by Attorney General Jeff Sessions, however, could soon limit or end the ability of domestic violence survivors to receive asylum protection in the United States.

Domestic violence has long been a contentious issue in asylum law. More than two decades ago, advocates began a 14-year legal battle to win asylum for Rodi Alvarado Peña, a Guatemalan woman who suffered a decade of brutal violence at the hands of her husband. Even though Ms. Alvarado repeatedly sought help from the Guatemalan police and courts, the Guatemalan authorities refused to intervene and protect her. When Ms. Alvarado tried to escape from her husband, he tracked her down and beat her unconscious. Ms. Alvarado ultimately fled to the United States and became the subject of a controversial, high profile immigration court case, as multiple administrations considered whether to grant asylum to women whose countries fail to protect them from domestic violence. Ms. Alvarado ultimately received asylum in 2009, but her case did not establish legal precedent that could help other asylum-seekers fleeing domestic violence.

In 2014, the Board of Immigration Appeals (BIA) finally issued a precedential decision recognizing domestic violence as a basis for asylum. In Matter of A-R-C-G-, the BIA granted asylum to a Guatemalan woman whose husband broke her nose, repeatedly raped her, and burned her with paint thinner. The BIA recognized “married women in Guatemala who are unable to leave their relationship” as a group that can qualify for asylum. This landmark case opened the doors to protection for other immigrant survivors of domestic violence whose countries fail to protect them from abuse.

While the United States has made great strides in offering protection to immigrant survivors of domestic violence, Attorney General Jeff Sessions recently took a step that could potentially undo decades of forward progress. As attorney general, Sessions has the authority to refer immigration court cases to himself, overturn decisions of the Board of Immigration Appeals, and set precedent. Last month, Sessions referred an immigration case to himself involving a survivor of domestic violence from El Salvador. If Sessions rules against this woman, he would begin reshaping asylum law for abuse survivors and could potentially shut the doors to countless victims seeking protection in the United States.

In the case under Sessions’ review, a Salvadoran women referred to as A.B. suffered years of domestic violence at the hands of her ex-husband in El Salvador. Even though A.B. separated from her husband and eventually divorced him, her ex-husband returned three years after their separation and raped her. A.B. also testified to receiving threats from her ex-husband’s brother, who is a police officer, and his friend, who told the woman that her ex-husband would kill her and he would help dispose of her body. Although an Immigration Judge denied A.B.’s asylum case, the Board of Immigrant Appeals disagreed with the judge’s ruling and sent the case back to the judge to reconsider his decision. The Immigration Judge again refused to grant asylum to A.B., however, despite the BIA’s precedent decision in Matter of A-R-C-G-, due to other more recent decisions in his jurisdiction.

Now that Sessions has stepped in to review A.B.’s case, he has the authority to determine whether she should be granted asylum. If Sessions denies her asylum case, his decision could have a far-reaching impact, setting precedent that would make it more difficult for other immigrant survivors of domestic violence to qualify for asylum in the future. If Session limits asylum eligibility for these survivors, he will roll back decades of progress in asylum law and close the doors to immigrant victims of abuse who have nowhere else to turn.

Wilkes Legal stands with immigrant survivors of domestic violence and urges Sessions to uphold the BIA’s current precedent, keeping America’s doors open to victims of domestic abuse whose governments fail to protect them.

Visit our website, follow us on Facebook or Twitter, or call our office at (301) 576-0491 to learn more about Wilkes Legal, LLC.

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From his actions to date, Sessions appears to be up to no good. But, by now the “A-R-C-G-/R-A- principles” are deeply ingrained in U.S. protection law as interpreted by the Article III Federal Courts.

I predict that an attempt by Sessions to undo A-R-C-G- protections will be heavy-handed, blatantly biased, and thinly reasoned as have been all of his transparently biased reversals of established legal positions to date.

It’s therefore likely to suffer a fate of emphatic rejection by the Article IIIs much like what happened when Attorney General Michael Mukasey tried to undo years of established legal precedent about proof of crimes involving moral turpitude in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), rev’d & remanded, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015).

I’m hardly a “Charter Member of the Mike Mukasey Fan Club.” His poor stewardship over the U.S. Immigration Court system is at least partially responsible for today’s inexcusable mess in our Immigration Courts.

Nevertheless, before becoming Attorney General, Mukasey was a well-respected U.S. District Judge. He’s 10X the lawyer as Sessions! Sessions’s lack of any discernible legal skills, integrity, humanity, and judgement probably bodes well for the “Good Guys” in the long run.

But, that doesn’t mean that there won’t be unnecessary and unconscionable suffering. Sessions is a bully at heart who relies on the fact that the majority of individuals in the U.S. Immigration Court system are unrepresented and therefore unable to defend themselves against his racist/xenophobic policies.

I’m proud to be one of the “Gang of Five” Appellate Immigration Judges (“Board Members” ) who dissented from the BIA’s original outrageously incorrect decision in Matter of R-A-, 22 I&N Dec. 908 (BIA 1999), vacated, Matter of R-A-, 22 I&N Dec. 908 (A.G. 2001) that reversed a clearly correct grant of asylum to Rodi Alvarado. The other dissenters were Judges John Guendelsberger (who wrote the dissent), Lory Diana Rosenberg, Gustavo D. Villageliu, and Anthony C. Moscato.

Not coincidentally, all of us except for Judge Moscato were removed and “exiled” from the BIA during the “Ashcroft Purge of 2003” for the transgression of doing our jobs conscientiously and standing up for a correct interpretation of the asylum law. So much for the “facade of quasi-judicial independence at the BIA.” (Credit to Peter Levinson). And, that’s before the current “descent into the abyss” brought about by Sessions!

We need an independent Article I U.S. Immigration Court now!

PWS

04-05-18

TAL @ CNN: TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT POLICIES LIKELY TO FAIL AND ACTUALLY AGGRAVATE FORCES DRIVING UNDOCUMENTED MIGRATION!

How Trump’s policies could worsen the migration issue he says he wants to solve

By Tal Kopan, CNN

President Donald Trump in recent days has decried “weak” US border laws that he says leave the US vulnerable to unfettered immigration — but some of his policies could have the effect of worsening a Central American migrant crisis.

Even as the Department of Homeland Security says the southern border “is more difficult to illegally cross today than ever before,” Trump has stepped up his hardline immigration rhetoric, calling on the US military to guard the US-Mexico border until his long-promised wall is complete. He’s hammered Mexico and other countries for policies that he says are disadvantageous to the US and that send unsavory individuals into the country.

But experts say the President has been pursuing other policies that could substantially harm Central America — and in doing so, he risks creating conditions that generate the exact kind of mass exodus north that he talks about wanting to solve.

Immigration is driven by what are called push and pull factors. The US has been seeking aggressive immigration powers to cut down on what they say are pull factors — the perception that immigrants can live illegally with impunity in the US. But those very policies could affect push factors — the conditions of poverty and violence that drive immigrants elsewhere out of desperation.

“The US sort of talks out of both sides of its mouth,” said Eric Olson, a Latin America expert at the nonpartisan Wilson Center.

“If you’re investing in the region to address the drivers of migration and at the same time pursuing a policy of large-scale deportation, or at least potentially large-scale deportation, and you’re creating more obstacles for people leaving the region for reasons like violence and so on, you’re really creating more instability, not less instability.”

(Much) more: http://www.cnn.com/2018/04/04/politics/trump-migration-central-america/index.html

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As Tal says, there’s much, much more to her report on the total stupidity and counter-productivity (not to mention inhumanity) of the Trump Administration’s “Gonzo” enforcement policy. Go on over to CNN at the link to get the full picture.

I’ve been saying for some time now that Trump is pursuing facially “hard-line” policies that are proven failures. Indeed, that forced migration from Central America is a phenomenon that spans four decades and six different Administrations with varying degrees of “same old, same old” would suggest to rational leadership that a different approach is required.

Contrary to Trump’s oft-made bogus claim, his is not the first Administration to try a “close the border, detain and deter” policy. Beginning with Reagan, every Administration has tried largely the same thing (although perhaps without some of the inflammatory and outright racist rhetoric favored by the Trumpsters) and all have failed. I know because I’ve been involved in some aspect of trying to implement those failed policies in at least four of those Administrations, two GOP and two Democrat.

That’s why the trend of migration from the Northern Triangle continues and will continue and fester until we get some enlightened leadership that 1) correctly applies our refugee and protection laws in the generous humanitarian spirit they were intended; and 2) recognizes and starts to deal effectively with the “push” issues in the sending countries.

Contrary to the false narrative spread by current Administration, most Central American refugees that I encountered personally during my career would have preferred to remain in their home countries, if political and country conditions had permitted it. Indeed, many were forced by targeted violence to give up promising careers, studies, or businesses to flee for their lives to the U.S. Here, they often had to perform “entry-level” work to support themselves unless and until they achieved some type of legal status (often TPS , asylum, withholding of removal, CAT relief, Special Immigrant Juvenile (“SIJ”) status, or a green card under NACARA).

Of course, many were denied protection despite having very credible, well-documented fears of harm because they didn’t fit the intentionally restrictive asylum criteria engineered by the BIA over several Administrations largely as a result of political pressure on the system to be “unwelcoming” to Central American migrants. Some of those who returned were killed or disappeared; others were tortured or attacked again and forced to flee second or third times, now bearing the scars or injuries to prove their cases — only as “prior deportees” they were no longer eligible for asylum but had to accept withholding of removal or CAT deferral.

Nobody in this Administration, and sadly relatively few in Congress and among the public, are willing to deal honestly with the phenomenon of Central American migration and the “push factors” that will never, ever be controlled by more restrictive laws, more violations of statutory, Constitutional, and international rights, inhumane and life-threatening detention , and racist rhetoric. Nor will it be stopped by any bogus “Wall.”

As I’ve said before, “We can diminish ourselves as a nation, but that won’t stop human migration!” If only someone would listen!

PWS

04-04-18

VIEWS YOU CAN USE: SOPHIA GENOVESE SETS FORTH A BLUEPRINT FOR LEGAL RESISTANCE TO WHITE NATIONALIST XENOPHOBIA & SESSIONS’S ASSAULT ON HUMAN RIGHTS & THE RULE OF LAW FOR ASYLUM SEEKERS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/sessions-likely-to-end-asylum-eligibility-for-victims-of-domestic-violence-how-courts-can-resist.aspx?Redirected=true

Sophia writes at LexisNexis Immigration Communities:

“Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

. . . .

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution. The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

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

Go on over to LexisNexis at the above link for Sophia’s much longer full article.

More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.

Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!

PWS

03-21-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

BACK ON THE KILLING FLOOR: BATTERED WOMEN STRUGGLED FOR 15 YEARS TO GET LIFE-SAVING LEGAL PROTECTION UNDER ASYLUM LAWS – – Now, Jeff Sessions Appears Poised To Sentence Them To Death Or A Lifetime Of Unremitting Abuse With A Mere Stroke Of His Poison Pen!

FINALLY, AFTER FUTILE REQUESTS TO THE BIA AND THE DOJ, THE PUBLIC HAS BEEN ABLE TO GET A COPY OF THE RECENTLY CERTIFIED MATTER OF A-B-, FROM THE ATTORNEY (WHO WASN’T TOLD OF THE ACTION UNTIL HE RECEIVED A COPY OF THE DECISION IN THE MAIL ON FRIDAY)

Here it is:

A-B- BIA Decision (12-08-2016) (redacted) (1)

It’s bad news for Due Process, justice in American, and particularly vulnerable asylum seekers who are battered women. Sessions appears to be taking direct aim at the landmark BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) which, following a 15 year legal battle, recognized that battered women could be a “particular social group” and thereby qualify for asylum and withholding of opinion.

Make no mistake, the BIA decision in Matter of A-B- is correct in every respect — a virtual textbook on how U.S. Immigration Judges should be handling and granting these well-documented claims. It’s also a classic example of poor quality work and feeble, biased anti-asylum, anti-female reasoning by an Immigration Judge that plagues too much of our asylum system.

The Immigration Judge’s decision denying asylum which was reversed by the BIA in Matter of A-B- contained numerous egregious errors, including:

An incorrect adverse credibility ruling which failed to consider and properly weigh “the totality of the circumstances, and all relevant factors,” as required by the REAL ID Act;
Failure to recognize a “particular social group” (“PSG”) substantially similar to that approved by the BIA in Matter of A-R-C-G-;
A “clearly erroneous” finding that the abused respondent was free to leave her ex-husband;
A “clearly erroneous” finding that the valid PSG was not “at least once central reason” for the persecution;
An erroneous finding, bordering on the absurd, that the Government of El Salvador was not “unable or unwilling” to protect the respondent.

Overall, the Immigration Judge’s handling of this case has all the earmarks of a jurist who is biased against asylum applicants and has predetermined to deny most claims giving a litany of specious, basically “pre-judged” reasons.

The Attorney General compounds the problem by apparently questioning the long-established principle that persecution takes place when “non-state actors” are not reasonably controlled by their national government. See, e.g., Matter of O-Z-&I-Z-, 22 I&N Dec. 23, 26 (BIA 1998).

Rather than reinforcing the BIA’s long-overdue “reining in” of a wayward Immigration Judge, the Attorney General appears to be aiming to upend well-settled asylum law and empower those Immigration Judges who already treat asylum applicants unfairly. That’s likely to result in a monumental battle in the Article III Courts — specifically the U.S. Courts of Appeals. Hopefully, those courts eventually will recognize that the U.S. Immigration Courts are being manipulated to reflect the anti-asylum, xenophobic biases and prejudices of Jeff Sessions.

That will require them to stand up to Sessions’s bullying and insist that asylum seekers rights to fair hearings before impartial decision makers and to receive legal protection under U.S. and international standards be recognized.

Advocates also question the procedures by which this case was handled by the Immigraton Judge following the BIA remand. The BIA order instructed the Judge to schedule the case for a routine update of the fingerprints and background checks and to issue a final order; in my experience, that’s usually a “30 second process” that can be completed on a Master Calendar or by joint written motion “in chambers.”

However, according to sources, this Immigration Judge allegedly “held up” AB’s case for eight months for no particular reason, and then “recertified” it to the BIA raising a facially bogus legal issue concerning a later-issued, unrelated Fourth Circuit case. Mysteriously, the case then was “certified” by Sessions taking it out of the BIA’s jurisdiction.

This scenario raises speculation that this Immigration Judge — perhaps recognizing from the Attorney General’s public statements that Sessions was also biased against asylum seekers — may have manipulated the process to do an “end run” around the BIA to the Attorney General. All pretty unseemly stuff when “lives are on the line.” Yet more “anecdotal evidence” of a system out of control and biased against Due Process and fairness for asylum seekers and other migrants.

Stay tuned. The battle is just “revving up,” and the New Due Process Army is ready to defend our justice system against each and every debilitating attack on the rule of law by our biased and lawless Attorney General.

PWS

03-13-18

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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

The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

SESSIONS APPEARS TO BE MOUNTING ALL-OUT ATTACK ON DUE PROCESS AND THE RIGHTS OF VULNERABLE ASYLUM SEEKERS IN “CAPTIVE” U.S. IMMIGRATION COURTS — “Out Of The Blue” Certification Of Matter Of A-B- Could Turn Deadly For Those At Risk!

3918

Cite as 27 I&N Dec. 227 (A.G. 2018) Interim Decision #3918

Matter of A-B-, Respondent

Decided by Attorney General March 7, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 6, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 13, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before April 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

227

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

Something pretty strange is going on here! The BIA has never, to my knowledge, held that “being a victim of private criminal activity constitutes a cognizable ‘particular social group.'” Quite to the contrary, the BIA has always found that “victims of crime” are not a PSG.

Moreover, “Matter of A-B-” is not a BIA precedent. In fact, it’s impossible to tell from the cryptic certification what facts or context the amici should address.

Stay tuned. But, given Sessions’s record of hostility and outright misrepresentations concerning asylum seekers, we could be heading for a monumental, years long battle in the Article III Federal Courts as to whether the U.S. will continue to honor our Constitutional, statutory, and international obligations to protect “refugees” applying for asylum.

PWS

03-07-18

CALLING ALL FORMER IMMIGRATION JUDGES & BIA APPELLATE JUDGES: DUE PROCESS FOR CHILDREN IS ON THE LINE: Join In An Amicus Brief Supporting A Right To Counsel For Children In Immigration Court — Motion For Rehearing En Banc in C.J.L.G. v. Sessions! —Judges Gossart, Klein, Rosenberg, & I Are Already On Board! — Please Join Us!

Hi Judges Klein, Schmidt, Rosenberg, and Gossart:

Hope all of you are well. Thanks so much for your help with an amicus brief in support of rehearing en banc in CJLG v. Sessions, our children’s right to appointed counsel case. I’m copying in Buzz Frahn and his team from Simpson Thacher, who have agreed to draft the amicus brief on your behalves. We’ve given Buzz the previous briefs submitted in JEFM, and he and his team are getting started.

I think all of you can take it from here. It would be great if we could get your help in reaching out to other former IJs or BIA members who may be interested in participating as amici in our case.

Please let me know if you have any questions, or if I can do anything else to help. We’ll be in touch with the Simpson Thacher folks regarding some issues that might be worth highlighting in the amicus, and I’m sure they’d welcome feedback from all of you as well. Thanks again and have a great weekend!

Stephen

Stephen B. Kang
Pronouns: he/him/his
Detention Attorney
ACLU Immigrants’ Rights Project
39 Drumm Street, San Francisco, CA 94111
415.343.0783 | skang@aclu.org
*********************

In C.J.L.G. v. Sessions, a 9th Circuit 3-Judge Panel found that: 1) the child respondent was denied due process at his Immigration Court hearing; 2) he suffered past persecution; 3) but there was no “prejudice” because he couldn’t establish “nexus.” Therefore, the panel rejected his claim that he had a right to appointed counsel.

The “no prejudice” finding is basically ludicrous! “Nexus” is such a complex and convoluted legal concept that judges at all levels get it wrong with regularity. How do we know that this child couldn’t show “nexus” when he and his mother didn’t have any idea of the legal and evidentiary standards they were required to meet?

On Friday, I attended a FBA Immigration/Asylum program at NYU Law. It was clear from the outstanding panel on Northern Triangle asylum that claims very similar, if not identical, to CJLG’s are being granted in many Immigration Courts.

But, it requires many hours of client interviews, extensive trial preparation, and the knowledge and ability to present claims often under alternative legal theories. No unrepresented child has a fair chance to make such a winning presentation on asylum or Convention Against Torture Withholding in Immigration Court, even though there are “life or death” stakes.

Here’s a link to my previous blog on C.J.L.G.:

https://wp.me/p8eeJm-22V

We would love to have your support in speaking out against this injustice and systemic denial of due process to our most vulnerable.

Please contact Judges Gossart, Klein, Rosenberg, or me if you wish to join our effort.

Best wishes and many thanks for considering this request.

PWS

02-25-18

ARLINGTON IMMIGRATION COURT: ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Julia Navarro, and her client, F-R, from El Salvador. This afternoon, Immigration Judge Emmett D. Soper granted F-R’s asylum application. The ICE trial attorney waived appeal so the grant is final. Granted asylum along with F-R were her twelve and nine year-young sons, who live with her, and her husband, who remains in El Salvador.

F-R testified that the Mara 18 gang tried to recruit her then ten-year young son, but that he refused. As a result, he was beaten, resulting in visible injuries. However, he refused to tell F-R who beat him, and why. Finally, after repeated beatings, he told F-R. She confronted the gang members and asked them to leave her son alone. In response, they burned her with lit cigarettes on her chest, stomach, and arms. In addition, they demanded that she pay them $5,000. And they continued to beat her son. F-R went to the police twice, but nothing was done. Finally, after further beatings of her son and renewed demands for the $5,000, F-R and her husband decided that she and her two sons should come to the USA. After she left El Salvador, the gang members poisoned two of her dogs, whom, she testified, she considered part of her family. At the conclusion of her direct examination, Julia asked F-R if she would confront the gang members again, and she said yes, because “my children are my life, and I would give my life for theirs.”

Congratulations also to Sarah DeLong, Dalia Varela, Jengeih Tamba, and Jonathan Bialosky, who previously worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
**************************************************

Congrats to all involved!

Once more proving my point that with great representation, time to prepare, and a fair Immigration Court, many, perhaps the majority, of the so-called “Northern Triangle Gang Cases” are highly grantable!

This definitely calls into question the Administration’s use of unnecessary detention, unwarranted criminal prosecutions, expedited removal, denial of access to counsel, detention courts, and “removal quotas” to “discourage” valid claims for protection. The Administration’s policies are an overt attack on Due Process and the Rule of Law! Harm to the most vulnerable among us is harm to all of us!

Three cheers for the “New Due Process Army!”

PWS

02-23-18

MEET THE GOOD GUYS: NOVA SUPERSTAR IMMIGRATION ATTORNEY AVA BENACH HELPS “DREAMER TYPES” & THEY HELP AMERICA – THIS IS THE WAY THE SYSTEM CAN WORK WHEN YOU GET BEYOND THE WHITE NATIONALIST XENOPHOBIA OF TRUMP, SESSIONS, & MILLER & WHEN GREAT LAWYERS GET INVOLVED!

https://www.washingtonpost.com/local/she-was-almost-deported-as-a-teen-now-she-helps-frightened-versions-of-herself/2018/02/15/b39969a8-1245-11e8-9065-e55346f6de81_story.html

Petula Dvorak writes in the Washington Post:

“She was almost deported as a teen. Now she helps frightened versions of herself.

Liana Montecinos is a senior paralegal at Benach Collopy in Washington. She was 17 and about to be deported when lawyer Ava Benach helped her win asylum. (Jahi Chikwendiu/The Washington Post)

By Petula Dvorak Columnist February 15 at 3:39 PM Email the author

On many days in the shiny, sleek law office — in her sharp suit and sweeping view of Washington — she revisits all the horrors most people would want to forget:

The drunk men bursting into her tiny, adobe home at night, terrorizing the 15 children who lived there.

The walk across three countries, fearing for her life the entire way.

The months of eating nothing but beans and rice.

These are the same stories Liana Montecinos hears just about every time the 29-year-old paralegal sits down with a client.

Ava Benach, from left, Satsita Muradova and Liana Montecinos chat at their law office. (Jahi Chikwendiu/The Washington Post)

She doesn’t have to go there. She’s an American citizen and a third-year law student with a great future in front of her. But instead of going into something lucrative — corporate law, for example — she’s sticking with the law firm that helped her get political asylum.

“Being an immigrant and serving immigrants, it’s a very special connection,” Montecinos said.

And by doing that, she spends her days with frightened versions of herself.

I wanted to tell Montecinos’s story as Congress grapples with the fate of 1.8 million “dreamers,” the undocumented immigrants who were brought to this country as children. They face deportation under President Trump unless Congress can find a way to reinstate the protection they were given by President Barack Obama.

Montecinos was brought across the border by a relative in 1999, when she was 11 years old, after walking — yes, actually walking — from Honduras, across Guatemala, then across Mexico, crossing the Rio Grande into the United States.

She joined her mother in Northern Virginia — they had been separated since she was an infant and she had been raised by her grandmother — and her life was transformed.

She played volleyball and basketball in her Falls Church high school. She was a cheerleader and soccer player. She took Advanced Placement classes.

But no matter how well she was doing in school and no matter how faint her accent became, she knew it could all fall apart any second.

[She can’t bear to leave her kids. But she doesn’t want to be a criminal.]

And it nearly did when she was 17 and applied for legal status. Instead, the government began removal proceedings. She was going to be deported.

But it didn’t stop her from graduating from high school and enrolling at George Mason University, where she received a scholarship to cover the triple-tuition she had to pay as an undocumented student.

The scholarship’s donor — Helen Ackerman — introduced Montecinos to D.C. immigration attorney Ava Benach, who took on her complex case. What followed was a 10-year struggle.

“I met Liana when she was 17 years old,” Benach said. “And I knew she was special. She was out there, trying to figure out her own immigration status. I felt a very parental desire to help her.”

So they took on the case together, with Montecinos never giving up.

“I’d be doing an all-nighter, knowing I had a hearing the next day and the judge could send me away and it would all be for nothing,” she said.

But she kept studying, striving and working. You know how folks are always saying “Why don’t they just get legal?” It’s not that easy.

[My parents were welcomed as refugees. That was the America of 1968, not today.]

It took 10 years of hearings and arguments to convince a judge that she faced threats and violence in Honduras, in that tiny, adobe house, and that her hard work in school, model citizenship and potential were enough to grant her a place in American society.

Asylum is granted only to someone who faces persecution in their home country. And that persecution has to be for one of five reasons: your race, religion, nationality, membership in a particular social group, or your political opinion.

“It has to fit in one of five boxes,” Benach said. And her life’s work is helping her frightened clients qualify.

Montecinos was granted asylum and citizenship on June 29, 2016.

“For many, becoming a U.S. citizen is the last part of the process,” Montecinos wrote on her Facebook page that day. “For others, like myself, it is the beginning to end 16 plus years of uncertainty and of fear of a forceful return to imminent harm.”

She called herself “extremely blessed and thankful for such a privilege, which is denied to many,” she said. “This path, however, was not easy. It was not short. It was not cheap.”

She is in her third year of law school at the University of the District of Columbia, where she received a Student Humanitarian and Civic Engagement award on Thursday.

In her spare time, you see, she runs a nonprofit group she founded, United for Social Justice, which helps low-income, first-generation Americans get access to higher education. Oh, and she coaches and plays on a bunch of soccer teams.

When she meets with the undocumented children who are like her, the ones she is fighting for, it reminds her of her struggle.

Though her own story is horrible — think of being 11 and scared, hiding your face with blankets as you cross strange villages where people are yelling “pollos mojados” (wet chickens) at you, not knowing where you’re going — her clients recount even more heart-stopping stories.

She hears from children who were kidnapped, who rode for days on top of speeding trains, afraid to fall asleep because they’d fall off, from a little girl who was gang-raped in front of her father.”

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Ava has a “Major League” legal mind to go with a “heart of gold!” She and her colleagues from her firm appeared on many occasions before me at the Arlington Immigration Court.

This article aptly illustrates one of the points I often make. Asylum law has intentionally been “jacked” against Central Americans by a non-independent BIA working under pressure from politicos to limit protections to large groups. Nevertheless, with a good lawyer (e.g., one who isn’t afraid to argue the BIA’s — often otherwise ignored — favorable precedents back to them and to take wrong BIA denials to the Court of Appeals if necessary), resources to build and document a case, and persistence, most of the “Dreamers” probably could win some type of relief in Immigration Court if not at the Asylum Office or elsewhere at USCIS.

But, what rational reason could there be for forcing folks like Liana Montecinos who are already here, part of our society, and just want to become taxpaying citizens and REALLY “Make America Great” (not to be confused with the disingenuous racist slogan of Trump and his White Nationalist “base”) go through such a laborious process? And what possible rationale could there be for wasting the time of an already overburdened Immigration Court system with cases of individuals who clearly should be welcomed and accepted into American society without being placed in “Removal Proceedings?” Also, what would be the rationale for trying to artificially “speed up” complex cases like Liana’s and trying to make life difficult for talented lawyers like Ava?

The answer is clear: there is NO rationale for the “Gonzo” Immigration enforcement and “designed chaos and attack on Due Process in Immigration Court” that Trump, Miller, Sessions, Nielsen, Tom Homan and their ilk are trying to ram down our throats. Sessions is the problem for justice in our Immigration Courts; lawyers like Ava are a key part of the solution! Clearly, the U.S. Immigration Courts are too important to our system of justice to be left in the clutches of a biased, “enforcement only,” White Nationalist, xenophobic opponent of individual due process like Jeff Sessions! American needs an independent Article I U.S. Immigration Court! Harm to the least and most vulnerable among us is harm to all!

The good news is that folks like Ava and her fellow “Generals” of the “New Due Process Army” are out there to fight Trump, Sessions & Company and their White Nationalist, anti-American actions every step of the way and to vindicate the Constitutional and legal rights of great American migrants like Liliana and millions of others similarly situated. They are “American’s future!” Trump, Sessions, Miller, et al., are the ugly past of America that all decent Americans should be committed to “putting in the rear-view mirror” where the “Trumpsters” live and belong! And, it won’t be long before Liliana becomes an attorney and a “full-fledged member” of the “New Due Process Army!”

Go Ava! Go Liliana! Due Process Forever!

PWS

02-16-18

HON. JEFFREY CHASE: Matter of W-Y-C- & H-O-B- & The Unresolved Tension In Asylum Adjudication! – Plus My Added Commentary On EOIR Training!

https://www.jeffreyschase.com/blog/2018/2/4/the-proper-role-of-immigration-judges-as-asylum-adjudicators

“Feb 4 The Proper Role of Immigration Judges as Asylum Adjudicators

I would like to expand on the topic raised in my response to the BIA’s recent precedent decision in Matter of W-Y-C- & H-O-B-. In the U.S. system, what tensions exist between an immigration judge’s role as an independent judge within an adversarial system, and his or her overlapping role as an adjudicator of asylum claims?

As we all know, the 1980 Refugee Act was enacted to put the U.S. in compliance with the 1951 Convention on the Status of Refugees (to which the U.S. acceded through the 1967 Protocol). For that reason, numerous courts through the years have found the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to provide “significant guidance in construing the Protocol” and a useful instrument “in giving content to the obligations the Protocol establishes,” as the U.S. Supreme Court stated in INS v. Cardoza-Fonseca. The BIA has referenced the UNHCR Handbook in at least ten precedent decisions, as have numerous circuit courts.

Paragraphs 66 and 67 of the Handbook state the following:

66. In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail.

67. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect… (emphasis added.)

Not surprisingly, this approach is employed by the USCIS Asylum Office. Created in the implementation of the 1990 asylum regulations, the office’s first director, Gregg Beyer, previously worked for UNHCR for more than 12 years. The Asylum Officer Basic Training Manual (“AOBTM”) on the topic of nexus states that although the applicant bears the burden of proving nexus, the asylum officer has an affirmative duty to elicit all relevant information, and “should fully explore the motivations of any persecutor involved in the case.” The AOBTC therefore directs the asylum officer to “make reasonable inferences, keeping in mind the difficulty, in many cases, of establishing with precision a persecutor’s motives.”

The AOBTC also cites the 1988 BIA precedent decision in Matter of Fuentes.1 In that case, the Board held that “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible. However, an applicant does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of” a protected ground.

In Canada, the Immigration and Refugee Board takes the view that “it is for the Refugee Division to determine the ground, if any, applicable to the claimant’s fear of persecution.” The U.S. is unusual, if not unique, among western nations in not also delegating this responsibility to immigration judges. Also, note that the IRB references the “Refugee Division;” like many countries, Canada’s equivalent of immigration courts is divided into immigration and refugee divisions, in recognition of the special obligations and knowledge that asylum determinations require. The U.S. immigration court system does not have a separate refugee determination division; asylum claims are heard by the same judges and under the same conditions as all other types of immigration cases. Furthermore, as noted above, U.S. immigration judges hear cases in an adversarial setting, in which judges assume a passive, neutral role.

The role of asylum adjudicator carries responsibilities that are at odds with the the role of neutral arbiter. Asylum adjudicators are required to share the burden of documenting the asylum claim; the UNHCR Handbook at para. 196 states that “in some cases, it may be for the examiner to use all of the means at his disposal to produce the necessary evidence in support of the application.”2 And, as discussed above, once the facts are ascertained, it is the adjudicator who should identify the reasons for the feared persecution and determine if such reasons bear a nexus to a protected ground.

During the Department of Justice’s asylum reform discussions in the early 1990s, Gregg Beyer stated that the idea of separate asylum judges was considered, but ultimately rejected. To my knowledge, EOIR has never conducted an in-depth analysis of the conflicts between the judge’s responsibilities as an asylum adjudicator and his or her role as a neutral arbiter in adversarial proceedings. I discussed the Board’s incorrect holding in Matter of W-Y-C- & H-O-B- under which genuine refugees may be ordered returned to countries where they will face persecution because the asylum applicants lacked the sophistication to properly delineate a particular social group, a complex legal exercise that many immigration attorneys (and immigration judges) are unable to do. The problem also extends to other protected grounds. Would an unrepresented asylum applicant (who might be a child) understand what an imputed political opinion is? Would most asylum applicants be able to explain that actions viewed as resisting the authority of a third-generation gang such as MS-13 might constitute a political opinion? Regulations should be enacted making it the responsibility of immigration judges to consider these questions. Additionally, immigration judges, BIA Board Members and staff attorneys should be required to undergo specialized training to enable them to identify and properly analyze these issues.

Notes:

1. 19 I&N Dec. 658 (BIA 1988).

2. See also the BIA’s precedent decision in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), which I have referenced in other articles.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

MICHELLE BRANE @ WOMEN’S REFUGEE COMMISSION — “Why I March!”

“Dear Paul,

Today, my daughter Marisa and I joined thousands of women, men, and children in Washington, DC and other cities around the country to march for equality and for justice.

First and foremost on my mind while I marched with my daughter were the migrant and refugee women, children, and families for whom I advocate every day. With each step, I thought about the brave mothers who escape danger in their home countries because, like all mothers, they want a bright future for their children. Expecting to find safety at our border, these women and children are instead met by the Trump administration’s policies of ripping families apart.

I decided to march today in honor of the women and children who reach for safety but are instead betrayed.

The Women’s Refugee Commission will march forward with our important work supporting women and children seeking safety at our border. We will continue to utilize the court systems, inform the press and public, and hold the Trump administration accountable until asylum seekers have the protection and services they need to be safe, healthy, and to rebuild their lives. But there is strength in numbers.

In the spirit of the Women’s March, and the women for whom we march, please join us by donating today.

We can accomplish so much more together than we can alone.

In solidarity,

Michelle Brané
Director, Migrant Rights and Justice Program

DONATE

© 2017 Women’s Refugee Commission. All rights reserved.
The Women’s Refugee Commission is a 501(c)(3) organization.
Donations are deductible to the full extent allowable under IRS regulations.
15 West 37th Street, 9th Floor, New York, NY 10018 • Tel. (212) 551-3115”

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

Like me, my friend Michelle began her career as an Attorney Advisor at the BIA. She is also a distinguished alum of Georgetown Law where I am an Adjunct Professor.

The Women’s Refugee Commission does some fantastic work in behalf of vulnerable women and children who arrive at our border seeking refuge and justice, only to be detained and railroaded back to life-threatening conditions by the anti-refugee, anti-Due-Process, White Nationalist regime of Trump, Sessions, Miller, Nielsen, and their complicit minions.

Michelle was named one of the “21 Leaders for the 21st Century” by Women’s e-News.

Imagine what a great country this could be if our Government and our justice system were led by smart, courageous, principled, values-driven, humane leaders like Michelle and her colleagues, rather than by a cabal of morally bankrupt White Nationalist men and their sycophantic subordinates.

PWS

01-22-18

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HERE’S THE TABLE OF CONTENTS:

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

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