☠️⚰️🤮⚠️ DEMS MUST PREPARE FOR AN UNRELENTING DOSE OF THE “BIG LIE” ABOUT “OPEN BORDERS” FROM GOP WHITE NATIONALISTS — Don’t Expect Much Help Or Honest Reporting From The So-Called “Mainstream Media!” — “Loud fantasies are expansively covered, while life-and-death stories, like those of that infant and her mother, are seldom reported and, if they are, quickly disappear,” Says The Border Chronicle! — “Roger That!” 

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

 

Todd Miller
Todd Miller
Border Correspondent
Border Chronicle
PHOTO: Coder Chron

https://open.substack.com/pub/theborderchronicle/p/the-open-border-farce?r=330z7&utm_medium=ios&utm_campaign=post

The “Open Border” Farce

In 2023, there were record contracts for private industry on the world’s deadliest land border.

TODD MILLER
NOV 9

This article is a collaboration between The Border Chronicle and TomDispatch, a great outlet which has been looking at U.S. foreign policy, the military industrial complex, the “forever wars,” climate change, and many other topics since 2001.

On September 23rd, at about 2:30 a.m., a Border Patrol surveillance camera captured two people crossing the international boundary between Mexico and the United States on the outskirts of Nogales, Arizona. A Border Patrol vehicle arrived quickly, but not before one of them had fled back into Mexico. When an armed agent stepped out, dressed in a forest-green uniform, he found a 16-year-old girl from Mexico softly crying, while holding her month-old baby swaddled in a blanket.

The agent commanded her to get in the vehicle. As they then drove to the Nogales Border Patrol station, the girl, he later reported, tried to speak to him in Spanish through the security partition that separated them. Her tiny daughter, she was telling him, was in distress. Cameras showed that the vehicle stopped for all of 10 seconds before continuing. The agent later claimed he couldn’t understand what she was saying and that he wanted to find a fluent Spanish speaker at the station. He didn’t realize, he insisted, that the infant was struggling to breathe, though the child soon died.

This hellish story of suffering at our border is but one of hundreds of similar tales of horror from 2023. They illustrate a fundamental truth about that border: it neither is, nor ever was, an “open” one in the Biden years, nor does the president faintly have an open-border policy, though prepare yourself to hear otherwise — over and over again — in Trumpublican campaign ads next year. They’ll repeat what party officials are already saying all too repetitively: that “President Biden’s radical open borders policies” have created “the worst border crisis in American history.” (While those are the exact words of House Oversight Committee chair James Comer, similar sentiments are already being offered by countless members of the GOP.)

Comer’s claim is, of course, no less predictable than the hardships migrants like that girl are suffering as they try to reach this country. While such border narratives traffic in the unreal, what is real either isn’t effectively reported or gets lost amid all the politically motivated noise. Loud fantasies are expansively covered, while life-and-death stories, like those of that infant and her mother, are seldom reported and, if they are, quickly disappear.

Barely a week before that 16 year old was desperately trying to communicate to the agent in Spanish, the United Nations International Organization for Migration (IOM) labeled the U.S.-Mexico border the world’s “deadliest migration land route.” In 2022, a record 853 remains of dead border crossers were recovered (and this is the U.S. Border Patrol’s figure, which is even higher than the IOM’s), dwarfing the record of 568 set the previous year. Such numbers, the IOM stresses, are known to be distinct undercounts, leaving all too many families pining for lost loved ones.

But those border fatalities weren’t the only record breaker. Another was confirmed just a week after medical personnel at the Nogales station rushed to treat that girl’s baby. The number of border contracts issued to private industry also set a new record. Like those deaths, such contracts soared in fiscal year 2023 to $9.96 billion, instantly stripping the previous high, also set last year, of $7.5 billion.

And mind you, those gifts to industry were made from the highest budget ever (including in the Trump years) for border and immigration enforcement: $29.8 billion. So, don’t for a second think that the U.S. has an “open” border.  In fact, it’s never been more fortified or — something few even bother to mention — more profitable, if you happen to be part of the border-industrial complex.

. . . .

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

Read the full article at the link. 

Maybe it’s because the victims are “only migrants, mostly people of color” and therefore not considered to be “real human beings” by some in the media; maybe it’s because getting the real story about the border requires intensive digging, intellectual expertise, and perhaps some danger; maybe it’s because editors are in search of alarmist “sky is falling” myths about the “border apocalypse” to attract readers, viewers, and “online hits;” maybe it’s because of a false belief that truth is “boring” and “doesn’t sell!”  

For whatever reason, the non-Fox networks (Fox is a primary purveyor of the “Big Lie” and the “Open Borders Fantasy”) and “mainstream media” do a really poor job on border reporting.

Those with even a passing familiarity with “talking heads” are no-doubt familiar with claims from nativist GOP politicos, righty reporters, and even some Dems about the mythical a “open borders!” None of these folks have recent experience helping asylum seekers trying to exercise their legal rights under domestic laws, international treaties, and our Constitution in a border system specifically designed to “discourage and deter” them, rather than identify and promptly grant the many legally sufficient claims for protection. 

By contrast, when is the last time you saw real experts — folks like Clinical Professor Steve Yale-Loehr, former Deputy UNHCR and Georgetown Law Dean Alex Aleinikoff, CGRS Director Karen Musalo, HRF Refugee Programs Director Eleanor Acer, UC Davis Law Dean Kevin Johnson, NIJC Executive Director Mary Meg McCarthy, Immigrant Defenders Executive Director Lindsay Toczylowski, Rep. Hillary Scholten (D-MI) or any of the other huge numbers of highly articulate, well-recognized, “hands on practical experts” on human rights and asylum appear on the “talking heads” to throw some truth and real light on this important, nearly totally misunderstood and intentionally misconstrued, issue that GOP nativists have thrust to the forefront of the 2024 campaign?

Meanwhile, Dems should NOT be “running away” from the realities and essential benefits provided by robust immigration and the cruel wastefulness and immorality of Trumps’s proposed neo-Nazi “crackdown” on all forms of migration (although, disgracefully, some Dems are doing exactly that, thus playing into the hands of GOP nativists for absolutely NO return).

Simon Rosenberg
Simon Rosenberg
Veteran U.S. Political Analyst
Hopium
PHOTO: Substack

Here are some ideas from Simon Rosenberg at Hopium on Substack on how Dems can make immigration a centerpiece for success in 2024:

Trump Goes To War Against Immigration and Immigrants – It’s Another Big 2024 Problem For Republicans – Here at Hopium we talk about how “Abortion and Treason” will make it very hard for Republicans to win in 2024. It’s possible Trump is now adding a third item to that rancid list – mass deportation. From a new NYT article, Sweeping Raids, Giant Camps, and Mass Deportations: Inside Trump’s 2025 Immigration Plans:

Former President Donald J. Trump is planning an extreme expansion of his first-term crackdown on immigration if he returns to power in 2025 — including preparing to round up undocumented people already in the United States on a vast scale and detain them in sprawling camps while they wait to be expelled.

The plans would sharply restrict both legal and illegal immigration in a multitude of ways.

Mr. Trump wants to revive his first-term border policies, including banning entry by people from certain Muslim-majority nations and reimposing a Covid 19-era policy of refusing asylum claims — though this time he would base that refusal on assertions that migrants carry other infectious diseases like tuberculosis.

He plans to scour the country for unauthorized immigrants and deport people by the millions per year.

To help speed mass deportations, Mr. Trump is preparing an enormous expansion of a form of removal that does not require due process hearings. To help Immigration and Customs Enforcement carry out sweeping raids, he plans to reassign other federal agents and deputize local police officers and National Guard soldiers voluntarily contributed by Republican-run states.

To ease the strain on ICE detention facilities, Mr. Trump wants to build huge camps to detain people while their cases are processed and they await deportation flights. And to get around any refusal by Congress to appropriate the necessary funds, Mr. Trump would redirect money in the military budget, as he did in his first term to spend more on a border wall than Congress had authorized.

In a public reference to his plans, Mr. Trump told a crowd in Iowa in September: “Following the Eisenhower model, we will carry out the largest domestic deportation operation in American history.” The reference was to a 1954 campaign to round up and expel Mexican immigrants that was named for an ethnic slur — “Operation Wetback.”

The constellation of Mr. Trump’s 2025 plans amounts to an assault on immigration on a scale unseen in modern American history. Millions of undocumented immigrants would be barred from the country or uprooted from it years or even decades after settling here.

Such a scale of planned removals would raise logistical, financial and diplomatic challenges and would be vigorously challenged in court. But there is no mistaking the breadth and ambition of the shift Mr. Trump is eyeing.

Despite being inhumane and jawdroppingly cruel, this plan is now a major political problem for an already struggling Republican Party for at least three main reasons:

Raids and Mass Deportations Are Deeply Unpopular – We have decades of polling on the forced removal of the 10m+ undocumented immigrants (almost all of whom are employed and pay taxes) in the US, and it is wildly unpopular, perhaps even more so than “abortion bans.” One example – in the 2016 exit polls, in the election that gave Trump the Presidency, the American people choose “offer legal status” to “deported to home country” 70%-25%. Republicans may have a slight advantage on immigration issue right now, but mass deportation is seen as an extreme position by the American people (rightly so). It was so unpopular that the anti-immigration movement dropped mass deportation as a goal, moving to the softer “attrition through enforcement,” or “self-deportation,” political strategy more than a decade ago.

Trump’s plan is another sign of how extremism and extremists have overtaken the party of Lincoln and Reagan.

As I document here, since 2005, when the national Republican Party began adopting a far harder line on immigration (Reagan, W. Bush and McCain were all immigration reformers), the 4 battleground states of the Southwest, AZ/CO/NM/NV, have drifted away from the Republican Party, becoming far bluer. In the last 2 elections we’ve seen the best Democratic performance in that region since the 1940s and 1950s, and a reminder that Biden got within 5 points of Trump in Texas in 2020. In the heavily Mexican-American parts of the country in particular raids and mass deportations are wildly unpopular.

It Was A Plan Like This That Caused The Big Hispanic Protests Across the US in 2006 – In 2005 the Republican House of Representatives bucked their President, George W. Bush, and passed a bill that called for the rounding up and mass deportation of the 11m undocumented immigrants in the country. It was the moment when the party of the Sun Belt and the West went from pro-immigration to deeply restrictionist. Over the next year huge protests against this bill and mass deportation erupted across the US, and Republicans became so spooked that we were able to pass a “comprehensive immigration reform” bill through a Republican Senate in 2006. That bill, like the 2013 immigration reform bill we passed through the Senate, was never taken up by the Republican House and it died.

But those protests did something important politically – after years of Republican gains with Hispanics under W. Bush, Hispanics ran back into the arms of Democrats in 2006 and they have essentially stayed there ever since. In the 2006 midterms Democrats won 69% of the Hispanic vote, among our best performances in recent decades.

In the four Presidential elections leading up to 2006 Democrats averaged 47% of the vote, and in 2004 we lost AZ/CO/NM/NV. In the four Presidential elections since 2006 Democrats have averaged 51% and in 2020 we won AZ/CO/NM/NV at the Presidential level for the first time since 1940. As the Hispanic population has grown across the US and in these states, our net vote margin with Hispanic voters keeps increasing, even if we lose a few points in vote share. As I show here, in 2004 the net Hispanic vote margin for Democrats was about 700,000 votes nationally, meaning we won 700,000 more Hispanic votes nationally than Republicans. In 2020 that number was at least 4.5m net votes across the US, with this same dynamic playing out in each state with large Hispanic populations (except Florida of course).

My instinct is that whatever advantage Republicans had on immigration, and whatever small gains they had made with Hispanic voters in recent years, is now gone.

This Plan Will Wreck The American Economy – In a time of existing wide scale worker shortages, removing 10-15m workers from the American economy in a short period of time would be national economic suicide, and will be seen that way by the business community in DC and in the battleground states. It’s just totally insane and extremist policy no matter how you look at it, and I think it could become as much of a drag on the GOP brand as abortion is now.

For a party which has lost the popular vote in 7 of the last 8 elections, lost the popular vote to Democrats 51%-46% over the past 4, lost the 2018/2019/2020/2022 and 2023 elections, has deep performance issues across the country even in red states since Dobbs, embracing mass deportations seems like a colossal political error.

It is another reason why I think our goal in 2024 should be not just to win, but to really go on offense, get to 55, and make this election an historic repudiation of the worst and most dangerous political party in our history. We can do this people!

Onward/Adelante – Simon

Thank you for reading Hopium Chronicles By Simon Rosenberg. This post is public so feel free to share it.

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It’s critical to remember that migrants aren’t the ONLY target of Trump’s neo-Nazism — they might not even be the primary ones! You can guarantee that many US citizens and lawfully present non-citizens of color will be caught up in the dragnet and sent off to deportation concentration camps where due process is non-existent. 

Others will simply avoid certain public places and activities for fear of being accosted. Still others will be forced underground because of fear of drawing attention to undocumented relatives or neighbors. Some U.S. citizens will fear voting, which indeed is a key part of the GOP plan to cement their “out of the mainstream” minority rule by suppressing suffrage! As those of us who adjudicated asylum claims know, many will fear reporting abuses or asserting rights to police who openly identify with their oppressors. Fear, despair, distrust, and resignation are key pillars of any authoritarian regime!

It’s attack on all people of color in America and those who might speak with an accent or dress differently from the GOP’s “White Christian Nationalist norms.” 

How many of us carry around documentation proving that our parents were U.S. citizens? Notably, although occupational status is often menioned on U.S. birth certificates, citizenship status is NOT. It’s not hard to guess who will be “required” to “document” their parents’ citizenship by Trump’s internal security police!

Trump and the GOP are an existential threat to U.S. democracy, human progress, and American leadership on the world stage. Don’t let them destroy OUR country and take away YOUR rights!

🇺🇸 Due Process Forever!

PWS

11-14-23

🆘⚖️MR. NEGUSIE’S 17-YR ODYSSEY INTO JUDICIAL NEVER-NEVER LAND CONTINUES —  GARLAND’S CERTIFICATION OF MATTER OF NEGUSIE, 28 I&N DEC. 399 (A.G. 2021) — A Microcosm Of All That’s Wrong With Our Immigration Court System — 17 Years, 4 Administrations, 5 Different Tribunals, 0 Final Resolution! — Calling Charles Dickens! 

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMTEwMTIuNDcyNTU4OTEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xNDQxMjYxL2Rvd25sb2FkIn0.5W9gUw8pz8DPzsg7kAN8OnR6-Fn9dKgiW5oNm1UqGzM/s/842922301/br/113790680583-l

Cite as 28 I&N Dec. 399 (A.G. 2021) Interim Decision #4029

Matter of NEGUSIE, Respondent

Decided by Attorney General October 12, 2021

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

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), 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).

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

This terse decision conceals a total, disgraceful mess in our justice system!

  • Mr. Negusie, the respondent in this case, filed his asylum application before an Immigration Judge in 2004 — 17 years ago!
  • In 2005, the IJ denied his application because of the so-called “persecutor bar,” but “deferred” his removal to Eritrea under the Convention Against Torture(“CAT”).
  • The BIA affirmed the IJ’s decision.
  • In 2007, the 5th Circuit affirmed the BIA.
  • In 2009, the Supreme Court reversed the BIA, and remanded the case to the BIA under their “Chevron doctrine” of “judicial task avoidance,” Negusie v. Holder, 555 U.S. 511 (2009].
    • At that time, in separate opinions, five Justices expressed rather definitive views about the substantive legal issue.
    • Justices Thomas, Scalia, and Alito all clearly believed that there should be no “duress exception” to the persecutor bar.
    • Justices Stevens and Breyer obviously thought that there was a “duress exception.”
    • The other four, Chief Justice Roberts, Justices Kennedy, Souter, & Ginsburg, had obviously studied matter, but rather than resolving the issue, chose to “punt” it back to the BIA for their supposed “expert interpretation” — an unusual “vote of confidence” in an administrative body they had just found to have misinterpreted their prior decisions.
  • “The Interregnum:” For the next nine years, during which both Administrations and BIA membership changed several times, the BIA “ruminated” on the task assigned them by the Supremes. Finally, in 2018, the BIA issued a precedent decision finding a limited “duress defense.”  Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). Nevertheless, the BIA found that Negusie didn’t qualify for that limited defense. So, Negusie lost! But, that was hardly the end of the matter within the convoluted world of the DOJ!
  • Despite the Government’s prevailing in Negusie’s case, four months later, AG Sessions “certified” that decision to himself.
  • Two years later, in 2020, another AG, Billy Barr, who had succeeded Sessions, reversed the BIA in a precedent, finding that there was no “duress exception,” however limited, to the “persecutor bar.” Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020). Mr.Negusie lost once again, but this time on a different rationale than employed by the BIA!
  • The case was returned to the BIA for “background checks,” since Mr. Negusie’s removal had been indefinitely “deferred” under the Convention Against Torture (“CAT”). After Mr.Negusie’s background “cleared,” the BIA apparently entered a final order of removal to Eritrea, but “deferred” execution of that order under CAT.
  • Thereafter, on April 15, 2021, Mr. Negusie exercised his right to seek review in the 5th Circuit for the second time. https://dockets.justia.com/docket/circuit-courts/ca5/21-60314
  • But, before that review was complete, AG Garland “certified” the last BIA decision (actually Barr’s 2020 precedent) for review, thus “staying” its effect.
  • Summary: one IJ decision; three trips to the BIA; two trips to the Fifth Circuit; three AG decisions; one trip to the Supremes = no decision on a 2004 application!
  • In other words, five different tribunals have had this case before them at least nine times over 17 years without finally resolving the issue!
  • In the meantime, I can tell you from past experience that this issue arises on a regular basis before Immigration Judges. They, in turn, must resolve it as best they can without definitive guidance from higher judicial authorities, sometimes relying on “precedents” that later are vacated or invalidated.
  • The solution: How about a BIA made up of real judges: true nationally respected experts and “practical scholars” in immigration, human rights, and due process who will provide timely, legally correct guidance at the initial appeal level?
  • And, if they do happen to get it wrong, how about Supremes that decide the legal issues coming before them, as they are paid to do, rather than aimlessly “orbiting” legal questions back to the lower tribunals that got them wrong in the first place under the highly problematic “Chevron doctrine of high-level judicial task avoidance?”
  • Also, in the event such reforms were made, how about Attorneys General, who traditionally have particular expertise in neither immigration nor human rights, keeping their “fingers out of the pie” and letting the real experts do the work? (In this respect, while AG Sessions had a long, disgraceful political history of advancing far right, xenophobic, racist, misogynistic tropes, such that his nomination to become a Federal Judge was rejected by his own party, no recognized immigration/human rights expert would classify Sessions as having either legal expertise in the area or proper qualifications to serve in any judicial capacity including a “quasi-judicial” one, particularly in areas where he had previously and consistently shown extreme bias and intellectual dishonesty in his public statements and actions. Nor did AG Barr have any legitimate expertise that would qualify him to participate in quasi-judicial capacity in immigration and human rights cases. While, ordinarily, a Federal Circuit Judge with long service would acquire some immigration experience and perhaps develop expertise, Judge Garland sat on the DC Circuit, which did not regularly review Immigration Court cases, because there is no Immigration Court sitting in D.C.) 
  • One might also ask why the Supremes would remand to a purportedly “expert agency” for statutory interpretation, only to have the process hijacked by politicos?
  • Finally, multi-raspberries to Congress who let this disgraceful abuse of both taxpayer resources and our justice system go on, in plain sight, for decades without corrective action. America needs an independent Article I Immigration Court, with judges selected on a merit basis, NOW!
  • Where’s Charles Dickens when we need him? See, e.g., Jarndyce v. Jarndyce.

🇺🇸Due Process Forever!

PWS

10-15-21

AFTER 16 YEARS OF LITIGATION, BARR REVERSES BIA, STICKS IT TO FORMER CHILD SOLDIER SUBJECTED TO DURESS! — Matter of NEGUSIE, 28 I&N Dec. 120 (A.G. 2020)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/a-g-barr-on-asylum-persecution-duress-coercion-matter-of-negusie

 

Dan Kowalski reports from LexisNexis Immigration Community:

A.G. Barr on Asylum, Persecution, Duress, Coercion: Matter of Negusie

Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020)

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.

(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.

“I vacate the Board’s June 28, 2018 decision. The Board’s decision did not adopt the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as of longstanding Board precedent and policies of the Department of Justice. In addition, the decision did not appropriately weigh relevant diplomatic considerations, and it introduced collateral consequences that would be detrimental to the administration of immigration law. The Board’s decision also placed an initial burden on the Department of Homeland Security (“DHS”) to show evidence indicating the applicant assisted or otherwise participated in persecution, which is contrary to the plain language of the governing regulations. Because the Board incorrectly recognized a duress exception to the persecutor bar, and incorrectly placed an initial burden on DHS to show evidence the persecutor bar applies, I overrule those determinations and any other Board precedent to the extent it is inconsistent with this opinion. I vacate the Board’s decision and remand this matter to the Board with instructions to place the case on hold pursuant to 8 C.F.R. § 1003.1(d)(6)(ii)(B) pending the completion or updating of all identity, law enforcement, or security investigations or examinations. Once those investigations or examinations are complete, the Board should enter an appropriate order.”

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

Fairly predictable given the regime and a system that lets a political official interfere in the quasi-judicial decision-making process in violation of due process and fundamental fairness! Remarkably, Barr injects “diplomatic considerations” into what is supposed to be due process, impartial adjudication system! He also shifts the burden of proof to the respondent, rather than the DHS where the BIA had placed it.

This case was remanded by the U.S. Supreme Court after the BIA got it wrong more than a decade ago. If it goes back to the Court again, the former “child soldier” in 1995, when the events occurred, could well be a “senior citizen” by the time the system decides his fate. 

In the course of remanding the case, the Supremes noted that different interpretations of the statute by the BIA with respect to the duress defense were available. As has become the norm these days, faced with various reasonable possibilities, the Attorney General chose the one “least favorable to the foreign national.”

This case also points out the absurdity of the “Chevron doctrine” in immigration. In 2009 when this case was before the Supremes, there was a clearly developed record. Additionally, it was clear that a number of the then Justices had well-defined, if conflicting, views on the “duress defense” in this context. Yet the Court remanded for the BIA to exercise “Chevron authority” to make another interpretation. That process has taken 11 years!

Whatever happened to the plain old fashioned idea that Justices of our Supremes are paid to decide what the law is so that it can be carried out by the Executive?As I have stated on many occasions, “Chevron deference” is nothing more than “judicial task avoidance” at the highest levels!

The “good news” from the respondent’s standpoint is that the BIA’s prior grant of “deferral of removal” to Eritrea stands. Therefore, it seems likely that he will be able to remain in the U.S. in “limbo” status for the rest of his life, no matter how the asylum litigation eventually plays out.

It also illustrates the extent to which the Government will go to deprive an individual of a chance to regularize status in the United States. This protracted litigation isn’t about “removing a bad guy” from the U.S. Rather it’s about insuring that a foreign national who has been residing here with no apparent incidents for the past 16 years, and is likely to be among us for the rest of his life, will continue to “twist in the wind” without permanent legal status or any chance of becoming a full member of our society.

A regime that mindlessly rushes cases to deportation without fair deliberation in many cases has no problems making the system move at a glacial pace, wasting time, and squandering legal resources when it wants to screw the asylum seeker.

PWS

11-06-20

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! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

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February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

GONZO’S WORLD: BOGUS “COURT SYSTEM” REVEALED IN ALL OF ITS DISINGENUOUS INGLORIOUSNESS — SESSIONS MOVES TO TRASH THE “LIMITED DURESS” DEFENSE FOR ASYLEES BEFORE TRUMP TURNS HIM BACK INTO A PUMPKIN (AFTER HALLOWEEN) – Why Have A BIA If It Is Only Permitted To Decide Major Issues In Favor Of The DHS Position? — Matter of Daniel Girmai NEGUSIE, 27 I&N Dec. 481 (A.G. 2018)

https://www.justice.gov/eoir/page/file/1101746/download

Cite as 27 I&N Dec. 481 (A.G. 2018) Interim Decision #3943

Matter of Daniel Girmai NEGUSIE, Respondent

Decided by Attorney General October 18, 2018

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

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2018), 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: Whether coercion and duress are relevant to the application of the Immigration and Nationality Act’s persecutor bar. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012).

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before November 8, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before November 15, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before November 15, 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.

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Here’s the BIA headnote a link to Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018):

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

http://immigrationcourtside.com/wp-content/uploads/2018/06/3930.pdf

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Remains to be seen whether Session’s November 16, 2018 “deadline for brief submission” will exceed his job tenure! But, don’t kid yourself: this decision has already been written, maybe with input or assistance from a “restrictionist” organization. And, even if Sessions departs shortly after the midterms, as most expect, I’m sure Trump will be able to find another “restrictionist patsy” to do his “immigration dirty work” for him.

Want to know how ludicrous Sessions’s action is:  This case has been pending before the Immigration Court, the BIA, the Supreme Court, and now the Attorney General for nearly 15 years, with no end in sight. After Sessions rules against Negusie, the case will go back to the Court of Appeals, and then, perhaps, back to the Supremes, assuming Mr. Negusie lives long enough to see it through to its conclusion. When it comes to removing folks without Due Process, “time is of the essence” for guys like Sessions; but, when it comes to screwing asylum seekers, “time has no essence” — whatever it takes, no matter how long it takes.

Additionally, this is a great illustration of the absurd dereliction of duty in the Supreme’s so-called “Chevron doctrine.” It’s a purely judge-created device that enables the Supremes to avoid deciding important and potentially controversial legal issues by, in effect, “shuffling them off to Buffalo” (a/k/a the Executive Branch). Once in “Buffalo,” sometimes dysfunctional and often biased Executive Branch agencies can exercise their (often purely imaginary) “expertise” in construing ambiguous statutes (which is, after all, a question of law that constitutes the only function of the Article III Courts). And, does anybody (other than Jeff Sessions) really think that a politico like Jeff Sessions has any real “expertise” in immigration adjudication?

Interestingly, Justice Gorsuch, like his conservative predecessor the late Justice Scalia, has been openly skeptical of the Chevron doctrine. Perhaps ironically, he, along with the outlandish actions of the Administration that appointed him, could ultimately spell the well-deserved end or limitation of “Chevron deference.”

As we say in the business, stay tuned.  But, please, please, don’t “hold your breath” on this one!

PWS

10-18-18

🎃🎃🎃

 

 

 

NOTE TO NEW US IMMIGRATION JUDGES: YOU WOULD DO WELL TO IGNORE SESSIONS’S FALSE NARRATIVE & ADDRESS THE REAL PROBLEMS PLAGUING OUR US IMMIGRATION COURTS – Lack of Due Process, Abusive Detention, Some Biased Colleagues, Too Few Lawyers, Inconsistent Decisions, Far Too Many Denials Of Legitimate Refugees – “But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.”

From LexisNexis Immigraton Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/a-pro-bono-asylum-lawyer-responds-to-the-latest-attack-from-a-g-sessions

A Pro Bono Asylum Lawyer Responds to the Latest Attack from A.G. Sessions

Expecting Asylum-Seekers to Become US Asylum Law Experts: Reflections on My Trip to the Folkston ICE Processing Center

Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants 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 they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.

Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.

It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.

Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.

Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.

Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.

During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.

Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.

But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.

We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:

Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation

At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.

Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.

Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.

Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman

During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.

He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.

Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.

Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but seeTapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).

As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.

Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group

My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.

Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.

August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.

Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.

Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.

Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.

Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion

I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.

Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.

A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.

SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”

(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)

Photos from my trip to Folkston, GA:

The Folkston ICE Processing Center.

Downtown Folkston, GA.

Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).

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Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.

As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.

Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.

But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?

Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”

Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?

How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?

Your choice. Choose wisely. Good luck. Do great things!

PWS

09-11-18

 

BETTER LATE THAN NEVER? – After 9 Years, The BIA Finally Completes The Supreme’s Remand – Creates A “Limited Duress Defense” To Persecutor Bar, With Judge Malphrus Dissenting – Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Here’s the link:

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BIA HEADNOTE:

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

BIA PANEL: APPELLATE IMMIGRATION JUDGES GRANT, GREER, MAPPHRUS

OPINION BY: Judge Edward R. Grant

CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus

KEY QUOTE FROM MAJORITY:

In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in

1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.

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Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2

We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.

KEY QUOTE FROM DISSENT:

The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who

ORDER: The applicant’s appeal is dismissed.

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Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.

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  • Wow! Deferring to international interpretations and expert interpretations from the UNHCR that actually give an asylum applicant a very circumscribed break for actions he or she was forced to take. Very “Un-Boardy.” Could actually be “career threatening.” No wonder Judge Malphrus wanted to separate himself from any such rational and reasonable actions in the “Age of Sessions & Trump.”
  • 9 years in the making, during which the DHS position changed several times, is a pretty good argument against “Chevron deference” (a/k/a “task avoidance by life-tenured Article III Judges”). What were Immigration Judges supposed to do during those 9 years?
  • Odds on whether or how long it will take “Gonzo” to intervene?

PWS

06-29-18

 

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder.  (In addition to the former Board member, one of the included IJs also served as a temporary Board member).   The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows.  After initially ceding a limited duress exception to the Board, DHS recently changed its position.  In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim.  First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself.  As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden.  The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17