🎾 COURTSIDE TAKES THE (TENNIS) COURT WITH JEFFREY S. CHASE 🏆 — Penetrating Analysis By “Resident Pro” Jeff Chase of The Serves, Returns, Volleys, In & Out of Bounds In The “Blanco v. AG” Match, Recently Played On The Court of Appeals (3d Cir.) – It’s Not Wimbledon, But Chase’s Tips Guaranteed to Improve Your Game, or Your Money Back💸!

https://www.jeffreyschase.com/blog/2020/8/13/follow-the-bouncing-ball-persecution-and-the-shifting-burden-of-proof

Follow the Bouncing Ball: Persecution and the Shifting Burden of Proof

On July 24, the U.S. Court of Appeals for the Third Circuit reversed the BIA as to what constitutes past persecution. In Blanco v. Att’y Gen., the asylum-seeker had been abducted by police in his native Honduras because he had participated in marches in support of the LIBRE party. Police officers there detained him for 12 hrs in an abandoned house, where he was subjected to multiple beatings lasting 40 to 60 minutes each. The police also threatened to kill him and his family if he continued to participate in LIBRE party marches, and further insulted him with racial slurs. Learning that other LIBRE supporters had been killed by the police, the petitioner moved from city to city within Honduras over the next 14 months. However, he received three letters and one phone call during that time threatening that he and his family would be killed if he did not leave the country.

The immigration judge believed the petitioner, but nevertheless denied asylum, finding the harm to have not been severe enough to constitute past persecution. The B.I.A. agreed, saying that the treatment was “more akin to harassment” than persecution. The B.I.A. also found that the petitioner had not even established a well-founded fear of future persecution, concluding that there wasn’t a ten percent chance that a mere supporter who had last participated in a demonstration almost 2 years earlier would be persecuted.

The 3d Circuit reversed. It first quoted the oft-cited phrase that “persecution does not encompass all forms of unfair, unjust, or even unlawful treatment.” But the court continued that it has found persecution to include “threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.” Of course, the facts described above include multiple threats to life, as well as confinement and torture. So then how did the Board find what was obviously persecution several times over to be “more akin to harassment?”

As the Third Circuit explained, the BIA and the immigration judge committed three errors. The first was in finding that the past harm was not severe enough. But the court noted that persecution does not require severe injury; in fact, it requires no physical injury at all, as evidenced by the fact that a death threat alone may constitute past persecution. Thus, the court corrected the Board in holding that “physical harm is not dispositive in establishing past persecution.”

The court next corrected the Board’s discrediting of the threats on the ground that it was not “imminent,” citing the fact that the threat was not carried out in the 14 months until the petitioner’s departure. The court observed that in order to constitute persecution, a threat must be concrete and menacing, but explained that neither term relates to its immediacy. Rather, concrete and menacing go to the likelihood of the threatened harm, and excludes threats that are merely “abstract or ideal.” The court rejected the idea that an asylum-seeker must wait “to see if his would-be executioners would go through with their threats” before qualifying for protection, which “would upend the fundamental humanitarian concerns of asylum law.”

The last error pointed to by the court was the Board’s failure to weigh the various harms cumulatively. The court distinguished between the Board’s claim to have considered the harm cumulatively, and its actual analysis, which considered the individual instances of harm in isolation.

The court observed that, having shown past persecution, there was a presumption that the petitioner possessed a well-founded fear of persecution, which is what one must prove to merit asylum. But as both the IJ and the Board erred in their conclusion regarding past persecution, no determination regarding whether ICE had rebutted the regulatory presumption was ever reached.

* * *

Although Blanco did not reach the question of what happens following a showing of past persecution, I would like to continue the conversation in order to discuss this point. I don’t believe that the shifting burden of proof that arises upon a showing of past persecution is properly taught by EOIR in its training. For that reason, years ago, when I was still with EOIR, I conducted a training in which I tried to clarify the concept by using a tennis analogy. I will attempt to recreate the lesson here.

Imagine the asylum applicant as serving in a tennis match. In tennis, only the serve must go into one specific box on the court, as opposed to anywhere on the opponent’s side of the net. Here, I have marked that service box “past persecution,” as it is only by “serving” into that specific box that the asylum-seeker can create a presumption of well-founded fear, and thus shift the burden of proof to the government.

In the above illustration, the respondent has served into the “past persecution” box by establishing facts that constitute past persecution. This doesn’t require a showing of severe or extreme persecution; any harm rising to the level of what has been found to constitute persecution will suffice. Examples includes multiple instances of lesser harm that cumulatively rise to the level of persecution (see, e.g. Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998); a concrete and menacing threat (not accompanied by actual physical harm); or persecution in the guise of criminal prosecution or conscription.

Once the respondent establishes past persecution, the ball is then in the DHS’s “court.” The only way DHS can “return the serve” to the respondent’s side of the net (i.e. shift the burden of proof back to the asylum applicant) is to demonstrate either (1) changed circumstances such that the respondent no longer has a well-founded fear of persecution on account of a protected ground; or (2) that the respondent could reasonably safely relocate to another part of the home country. If DHS can’t prove either of the above, the respondent has “won the point” of establishing persecution.

Only if DHS succeeds in establishing one of those two points is the ball returned to the respondent. But just as in tennis, after the serve is returned, the respondent is no longer limited to hitting into the service box only. The respondent now has a wider court in which to win the point:

Just as there are three boxes on each side of a tennis court (i.e. the two service boxes and the backcourt), the respondent now has three options for meeting the burden of proof.

The two service boxes (closest to the net) represent the two ways in which one who has suffered past persecution can still merit a grant of “humanitarian asylum” even where there is no longer a basis to fear future persecution.

The first of these is where a humanitarian grant is merited based on the severity of the past persecution. This is the only time that the severity of the past persecution matters. (I believe that errors such as those committed in Blanco arise because the immigration judge remembers learning something about the severity of the past persecution, but isn’t quite clear on the context in which it arises.)

This rule is a codification of the BIA’s holding in a 1989 precedent decision, Matter of Chen. In a concurring opinion in that decision, former Board Member Michael Heilman pointed out that our asylum laws are designed to conform to our international law obligations. He continued that the source of those obligations, the 1951 Convention, came into effect years after the majority of those refugees it was meant to protect, i.e. those who had suffered past persecution during WW II, were clearly no longer at risk from the same persecutors following the defeat of the Axis powers

From this history, Heilman concluded that “the historical underpinnings of the Convention, from which the Refugee Act of 1980 receives its genesis, would have to be totally ignored if one were inclined to adopt the position that present likelihood of persecution is also required where past persecution has been established.”

The majority of the Board adopted this position only where it deemed the past persecution sufficiently severe, and it was that view that the regulations codified in 1990.

Years later, a second basis for humanitarian asylum was added to the regulations for those who suffered past persecution but had their presumption of well-founded fear rebutted by the government. This second category (represented by the second service box in the third illustration) applies to those who might reasonably suffer “other serious harm” in their country of origin. This rule (which became effective in January 2001) looks to whether the asylum applicant might suffer harm as severe as persecution, but unrelated to any specific ground or motive. Thus, an asylum-seeker who suffered past persecution but whose original basis for asylum has dissipated due to changed conditions may merit a humanitarian grant where their return might give rise to mental anguish, put their health at risk due to the unavailability of necessary medical treatment or medication, or subject them to abject poverty or severe criminal extortion, to provide a few examples.

Lastly, an asylum applicant who no longer has a well-founded fear due to changed conditions in their country of origin may still “win the point” by establishing a different well-founded fear of persecution under the new conditions.

Copyright 2020 Jeffrey S. Chase. All rights reserved. Reprinted With Permission.

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You’ll have to go to the original at the above link to see all of Jeffrey’s great “tennis court illustrations!”

Reminded me of my own, less than illustrious, career on the tennis court. Here’s the anecdote I shared with Jeffrey:

I loved it, Jeffrey, even though in my life many of my shots and serves “went over the fence.” Indeed, I once ended an inter-fraternity tennis match with a forfeit after hitting all of my opponent’s tennis balls into the Fox River which at that time bordered the LU Tennis Courts in Appleton. It was kind of like a “mercy killing” since I was being totally creamed anyway, and it was a hot day. I found Immigration Court a much more comfortable fit for my skill set.

I also appreciate Jeff’s citation of Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998). I was on that panel, along with my colleagues Judge Lory Rosenberg and Judge Jerry Hurwitz, who wrote the opinion. The record will show that it was one of the few published BIA precedents where the three of us, members of the “Notorious Panel IV,” agreed. Perhaps that’s why it got published. Our colleagues probably figured that any time the three of us were in harmony, it must be an auspicious occasion worth preserving for the future!

In any event, of all of the more than 100 published decisions in which I participated during my tenure on the BIA, O-Z- & I-Z- on the issue of “cumulative harm” proved to be one of the most useful during my tenure at the Arlington Immigration Court. Attorneys on both sides, knowing my tendencies, liked to frame their arguments in many cases in terms of “it is” or “it isn’t” O-Z- & I-Z-.

I think that “cumulative harm” is one of the most important, and these days most overlooked or wrongly ignored, concepts in modern asylum law. It was really one of the keys to favorable resolution of many asylum cases based on “past persecution.” But, that goes back to a time when the law was applied to protect worthy asylum seekers, rather than to reject them, often on specious grounds as happens on today’s “deportation railroad.”

PWS

08-14-20

JEFFREY S. CHASE: 9TH Circuit “Schools” BIA In Asylum Law – But, Will It Really Make Any Difference To “Death Board” In A Regime That Gives The Article IIIs, Congress, & The Law The Big Middle Finger Every Day With No Meaningful Consequences? — Programmed To Deny Asylum At Any Cost, EOIR Under Billy The Bigot Is Largely Undeterred By Judicial Lectures Without Teeth!

https://www.jeffreyschase.com/blog/2020/8/10/9th-cir-sets-bia-straight-on-circularity

9th Cir. Sets BIA Straight on ‘Circularity’

On August 7, the U.S Court of Appeals for the Ninth Circuit dealt a blow to the Trump Administration’s attacks on domestic violence-based asylum claims. In Diaz-Reynoso v. Barr, the petitioner applied for withholding of removal to Guatemala because she had been persecuted by her domestic partner on account of her membership in the particular social group consisting of “indiginous women in Guatemala who are unable to leave their relationship.”1 An immigration judge found her credible, but denied her applications for relief.

While her appeal was pending before the BIA, then-Attorney General Jeff Sessions issued his decision in Matter of A-B-. The BIA subsequently relied on that decision to reject the Petitioner’s particular social group.

Regarding this sequence of events, it’s important to realize that in 2014, the BIA issued a precedent decision holding that a particular social group consisting of “married women in Guatemala who are unable to leave their relationship” could serve as a basis for asylum. As a result, domestic violence-based asylum claims relied on this BIA-approved formulation as a model over the next four years.

When Sessions vacated the Board’s decision, many asylum claims relying on the prior precedent were already in the pipeline. The BIA could have applied Matter of A-B- only prospectively to cases filed after Sessions’ decision.2 Or if it decided to apply the decision retroactively, it could have remanded the cases that had relied on the law at the time of filing to now allow them to modify their record in response to the superseding decision.

However, the Board did neither of these things. Instead, it denied the pending cases with no individualized analysis, simply dismissing the claim as being too similar to the case that the Attorney General had just disagreed with.

In Diaz-Reynoso, the Ninth Circuit refuted the above approach by affirming the following points that have been raised repeatedly since the issuance of the AG’s decision, but that the BIA has continued to ignore.

First, the court held that Matter of A-B- does not categorically bar the granting of domestic violence-based asylum claims. In the words of the court: “Far from endorsing a categorical bar, the Attorney General emphasized that the BIA must conduct the ‘rigorous analysis’ set forth in the BIA’s precedents.’”

Second, the court affirmed the commonly-held view that much of the AG’s decision in Matter of A-B- is nonbinding dicta. In the words of the Ninth Circuit, the AG offered “some general impressions about asylum and withholding claims based on domestic violence and other private criminal activity.” But the court noted that “despite the general and descriptive observations set forth in the opinion, the Attorney General’s prescriptive instruction is clear: the BIA must conduct the proper particular social group analysis on a case-by-case basis.”

Third, the court held that the particular social group that Sessions rejected in Matter of A-B- was not impermissibly circular.

As the concept of circularity can be confusing, I will offer some explanation. In order to merit asylum, persecution must be on account of a statutory ground: race, religion, nationality, membership in a particular social group, or political opinion. Hypothetically, someone with a fear clearly unrelated to one of the necessary grounds could put forth an argument as follows: “I fear persecution.” “Why?” “Because I’m a member of a particular social group.” “What group?” “People who fear persecution.” “But why do they fear persecution?” “Because of their social group.” “What group?” “People who fear persecution.” And this could go on and on, continuing in the same circle.

In a 2006 precedent decision, Matter of C-A-, the BIA cited to UNHCR guidelines on particular social groups as prohibiting this exact scenario, in which a group is defined exclusively by the harm. The Board repeated the same rule a year later in another precedent, Matter of A-M-E- & J-G-U-, again using the word “exclusively” (although this time without the emphasis).3 However, the BIA in 2014 added language that a particular social group must exist independently of the persecution, without explaining whether this term differed in meaning from the “exclusively defined” prohibition, and if so, to what degree.

In Matter of A-B-, the AG first jumped to the conclusion that the reason an asylum-seeker is “unable to leave the relationship” is due to persecution.4 And following that assumption, he rejected the particular social group as being impermissibly circular.

As stated above, the particular social group in Diaz-Reynoso was “indiginous women in Guatemala who are unable to leave their relationship.” The group was thus defined by the group members’ (1) indiginous status; (2) Guatemalan nationality; (3) gender; and (4) inability to leave their relationship. So the group was clearly not exclusively defined by the persecution.

And yet, as the Ninth Circuit noted, “with almost no analysis, the BIA rejected Diaz-Reynoso’s proposed particular social group because it ‘suffer[ed] from the same circularity problem articulated by the Attorney General in Matter of A-B-.’”

The Ninth Circuit continued: “In the Government’s and dissent’s view, in order to exist independently from the petitioner’s feared harm, a proposed group may not refer to that harm at all. We disagree. The idea that the inclusion of persecution is a sort of poison pill that dooms any group does not withstand scrutiny.”

The court further clarified that a group exists independent of persecution when it “shares an immutable characteristic other than the persecution it suffers.” As noted above, the particular social group here included three such immutable characteristics: indiginous status, nationality, and gender. These serve as what the court termed “narrowing characteristics” independent of any harm.

The court further questioned the logic behind the agency’s restrictive view of circularity: “The purpose of asylum and withholding is to provide relief to people who have been persecuted in foreign lands because of their race, religion, nationality, membership in a particular social group, or political opinion…The Government and dissent do not explain why a person seeking relief on the basis of membership in a particular social group should be required to omit any mention of threatened persecution.”

One additional point worth mentioning is that the Ninth Circuit looked to UNHCR materials for guidance, noting that the BIA has found UNHCR’s views to be “a useful interpretive aid.”

The Ninth Circuit’s decision should certainly be applauded by asylum advocates. The court joined the First and Sixth Circuits in rejecting the reliance on Matter of A-B- as a basis for swiftly dismissing domestic violence claims.

But this litigation could have been avoided through the BIA properly doing its job. The petitioner in this case endured four years of abuse at the hands of her tormentor. She was forced by him to work without pay in the coffee fields as well as to have sex with him. She was further subjected to weekly beatings, suffering bruises that sometimes lasted for 10 days.

The petitioner actually escaped to the U.S., where she was detained for a month and then deported back to Guatemala. There, she was forced to return to her abuser when he threatened to otherwise kill her and her daughter and harm her mother. Upon return, she was subjected to even worse abuse for another year.

And yet an appellate immigration judge with the BIA saw in this case an opportunity for a quick denial with no analysis, on the grounds that the particular social group that had been valid for four years now contained a few more words than the AG approved of. This sadly demonstrates the present philosophy of the BIA, where the goal of achieving quick dismissals has usurped the need for reasoned analysis and due process.

The petitioner was represented by students and supervising counsel with the Hastings Appellate Project, an advocacy clinic of the University of California – Hastings College of Law. Amicus briefs were filed by the Center for Gender and Refugee Studies, the Round Table of Former Immigration Judges, Harvard Law School’s Immigration and Refugee Clinical Programs, and UNHCR. Special mention is due to Blaine Bookey at CGRS, who so ably argued the case remotely.

The Round Table expresses its gratitude to attorneys Richard W. Mark, Amer S. Ahmed. Grace E. Hart, and Cassarah M. Chu of the law firm of Gibson, Dunn & Crutcher, LLP for their invaluable assistance.

Notes:

The Petitioner was ineligible to apply for asylum because she was subject to reinstatement of a prior order of removal.

I believe a strong argument can be made that Matter of A-B- more closely resembled a policy announcement (which should be applied prospectively only) than a judicial interpretation of the law that would apply retroactively.

There is actually an exception to this rule, that we need not go into here.

In De Pena Paniagua v. Barr, the First Circuit in April explained that there may be other reasons one could be unable to leave their domestic relationship that are unrelated to persecution.

Copyright 2020 Jeffrey S. Chase. All rights reserved. Reprinted with permission.

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

While the Supremes and other Federal Courts continue to live in their “alternate universe,” most of the rest of us have noticed that the Trump regime is completely unapologetic and undeterred by their frequent defeats in Federal Court. There are no consequences, and therefore no deterrents, for their lies, misrepresentations, unprofessionalism, racist bias, and contempt for the American justice system. Nobody loses a law license, nobody goes to jail, nobody is required to operate under meaningful court supervision. Appalling misconduct and contemptuous behavior is normalized. “Just commit the same abuse again with a slightly different rationale” has become the watchword. The Supremes have shown they will accept any fraudulent rationale from Trump and his toadies as long as it gives them “some cover” for systemic abuses of people of color.

I’d say that Billy Bigot actually treats the Article IIIs almost like he treats the Immigration Courts – as his toady subordinates. And, he pretty much gets away with it! Contempt for Congress and the Courts is the heart of the “Unitary Executive” pushed by Billy and his neo-fascist cronies. And, until the Article IIIs find the collective backbone to “just say no,” the “Unitary Executive” is going to continue to run roughshod over them while our democracy.

Due Process Forever! Complicit Courts Never!

PWS

08-11-20

🛡⚔️🗽👍🏼🇺🇸ROUND TABLE SLAMS LATEST BOGUS “KILL ASYLUM” PROPOSED REGS IN COMMENTS TO REGIME!

Comments – Security Bar (COVID) Asylum Reg (PDF)

The Round Table of Former Immigration Judges is composed of 46 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. We have centuries of combined experience adjudicating asylum applications and appeals. Our members include nationally- respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.

We view the proposed rule as an improper attempt to legislate through rule making. The proposed rule is inconsistent with Congressional intent and with our nation’s obligations under international law. The rule is also overly broad, and as worded, could be applied to virtually anyone. It requires determinations to be made based on pure speculation by officials lacking any required expertise in the subject. And the rule fails to consider much lesser, more humane approaches to address the issue.

. . . .

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

Read our complete comment at the above link.

Gimmicks, cruelty, illegally, gimmicks, cruelty, illegality. Over and over the regime targets asylum seekers with “crimes against humanity.”

Although all DHS statistics should be regarded as suspect, the recent assertions that the regime”s killer tactics are protecting America against COVID appear particularly bogus — especially given the Trump regime’s gross failure to protect Americans from the pandemic and the frequent myths and false claims blabbered by Trump in a pathetic attempt to downplay the disaster caused by his stupidity and malicious incompetence.

The net result of all these “Miller-hatched” cruel gimmicks to eliminate legal immigration (without legislative authority) appears to be steadily increasing levels of extralegal immigration. And that’s just the folks who get caught. Who knows how many get through and simply get lost in the interior? So, instead of a rational legal immigration and refugee system that encourages screening, testing where necessary, taxpaying, and data collection, thanks to the stupidity and cruelty of Trump and Miller, the fecklessness of Congress, and the complicity of the Supremes, we have created a larger than ever extralegal immigration system.

Diminishing ourselves as a nation,🤮 won’t stop human migration🗽!

PWS

08|10-20

🏴‍☠️☠️⚰️👎🏻🤮END OF REFUGEE PROGRAMS SIGNALS DEMISE OF AMERICA! — “Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here!”

🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️⚰️⚰️⚰️⚰️⚰️👎🏻👎🏻👎🏻👎🏻👎🏻

https://www.washingtonpost.com/outlook/refugees-united-states-abandon/2020/08/07/6085e81c-d751-11ea-aff6-220dd3a14741_story.html

U.S. Asylum Officer Jason Marks writes in the WashPost Outlook Section:

. . . .

Collectively, we were told to implement restrictive new policies, expressly designed to deter people from seeking refuge. The Migrant Protection Protocols, for example, resulted in more than 60,000 asylum seekers being sent to Mexico in 2019, after fleeing the extreme brutality of MS-13 and the 18th Street gang in Honduras, Guatemala and El Salvador. Left to live in squalor without any protection, they are preyed upon by cartels and gangs as they wait, sometimes months, for an elusive court date before an immigration judge.

[I became an asylum officer to help people. Now I put them back in harm’s way.]

The pandemic put refugees and asylum seekers in even more desperate straits, as the United States paused refugee resettlement. Many already interviewed and accepted for resettlement in the U.S. now live stateless at the margins of cities, towns and villages where they have no rights or legal status, or in overcrowded refugee camps. Around the world, in places including Jordan, Kenya and Bangladesh, refugee camps are bursting at the seams. People there are unable to practice social distancing, and soap and water are limited.

Meanwhile, at our borders, Customs and Border Protection has turned away thousands of vulnerable people since March, without due process. Some applicants showing symptoms of the coronavirus were deported with no regard for safety measures (such as testing), causing outbreaks in the countries from which they had fled. Others languish in crowded detention facilities, even though many of them pose no security threat and Immigration and Customs Enforcement has the discretion to release them. By law, children must be let out after 20 days of incarceration. But rather than release them with their parents, our government has presented these families with an agonizing choice: Either have their children released, indefinitely separated from their parents — or remain locked up together in these facilities, many of which have already witnessed coronavirus outbreaks.

Amid all this, in June, the administration proposed 161 pages of sweeping regulations that would gut asylum and refugee law. Certain provisions, for example, drastically narrow the definitions of persecution and torture; others raise certain burdens of proof to nearly unreachable standards and redefine what constitutes the protected grounds of political opinion and membership in a particular social group. Still others could disqualify applicants if they made a mistake on their tax filings, or took two or more layover flights on their way here. In July, the administration proposed yet another new policy, allowing the United States to deny asylum to applicants if they come from any country with an outbreak of a highly contagious disease. (Public health experts have said this would serve no legitimate public health purpose.) It’s difficult to see how anyone could qualify for protection under this tangle of new rules, once they’re implemented.

Years of tightening restrictions have made it harder to obtain a wide range of legal immigration benefits, causing applications to plummet and, with them, the user fees that fund U.S. Citizenship and Immigration Services operations. Now, the pandemic has placed our agency on the brink of bankruptcy, and 70 percent of our workforce faces an indefinite furlough unless Congress intervenes. Without emergency funding, only a skeleton crew will remain to administer America’s immigration services system — resulting in even greater backlogs in the processing of applications for benefits including asylum, green cards, work permits and citizenship.

Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here. If the current administration’s policies continue unchecked, there will no longer be a pathway for refugees to have a new beginning in the United States. Even if a different presidential administration tried to change course, I fear that it would take many years to reverse the damage and rebuild our capacity to protect refugees. Many people will lose their lives before then.

In the closing words of his farewell address, President Ronald Reagan described our country as a “shining city upon a hill”: “If there had to be city walls,” he said in 1989, “the walls had doors, and the doors were open to anyone with the will and the heart to get here.” That is still something most Americans believe in.

[Read more from Outlook:]

[Coronavirus can’t be an excuse to continue President Trump’s assault on asylum seekers]

[Americans are the dangerous, disease-carrying foreigners now]

[During the covid-19 pandemic, immigrant farmworkers are heroes]

[Follow our updates on Facebook and Twitter.]

Jason Marks, an asylum training officer with the United States Citizenship and Immigration Services (USCIS), writes here as a shop steward for Local 1924, American Federation of Government Employees, which represents employees of the USCIS Asylum and Refugee Officer Corps.

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Read the rest of Jason’s article at the above link.

It’s not rocket science! Misusing, misinterpreting, and misapplying refugee and asylum laws to “reject not protect” is clearly illegal, unconstitutional, and immoral to boot! It’s also, not surprisingly, toxic public policy because it squanders and misdirects resources on efforts to that actually hurt our economy, society, and reputation. In other words, fraud, waste, and abuse on a grand and deadly scale!

So, a career Asylum Officer has more legal knowledge, guts, and human decency than the life-tenured, yet removed from both reality and humanity, Supremes’ majority! What’s wrong with this picture!

75 years after the end of World War II, America has installed a racist, neo-Nazi White Supremacist Government. Go figure!

To make this happen, Trump and his cronies needed both a feckless Congress and Supremes committed to empowering authoritarian racism in the name of Executive authority. He got both!

We have an opportunity, perhaps our last as a nation, to return to a nobler vision of America. But it will require ousting not only the morally corrupt and maliciously incompetent Trump regime but also the equally immoral GOP Senators who have enabled and enthusiastically hastened our national demise. That will give us a start on the longer-term project of better Justices and Federal Judges for a better America.

There is no excuse whatsoever for the cowardly, disingenuous, and immoral failure of the Roberts Court to stand against Trump. Instead, they have embraced the “Dred Scottification” — that is, dehumanization — of refugees, asylum seekers, immigrants, and persons of color. Why is this judicially-enabled retrogression to the “Hay-day of Jim Crow” acceptable in 21st Century America?

This November, vote like your life and the future of our nation and the world depend on it! Because they do!

PWS

08-09-20

🛡⚔️⚖️🗽😎GOOD NEWS, AS ROUND TABLE BESTS BIA AGAIN: 9th Cir. Zaps BIA’s Denial Of Guatemalan Woman’s Asylum & CAT Cases Involving Matter of A-B-! — Diaz-Reynoso v. Barr

Sontos, 9th 18-72833_Documents

Diaz-Reynoso v. Barr, 9^th Cir., 08-07-20, published

SYNOPSIS BY COURT STAFF:

Immigration

Granting Sontos Diaz-Reynoso’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her application for withholding of removal and protection under the Convention Against Torture, and remanding, the panel held that the Board misapplied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board and circuit precedent, in concluding that Diaz-Reynoso’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable, and that she failed to establish that the government of Guatemala would acquiesce in any possible torture.

The panel rejected Diaz-Reynoso’s contention that Matter of A-B- was arbitrary and capricious and therefore not entitled to Chevron deference. The panel concluded that, despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis.

The panel observed that the Board rejected Diaz- Reynoso’s proposed social group, with almost no analysis,

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case: 18-72833, 08/07/2020, ID: 11780830, DktEntry: 100-1, Page 3 of 76

DIAZ-REYNOSO V. BARR 3

because it “suffered from the same circularity problem articulated by the Attorney General in Matter of A-B-.” The panel explained that in doing so, the Board appeared to misapprehend the scope of Matter of A-B- as forbidding any mention of feared harm within the delineation of a proposed social group. The panel concluded that this was error, explaining that Matter of A-B- did not announce a new rule concerning circularity, but instead merely reiterated the well- established principle that a particular social group must exist independently of the harm asserted. The panel recognized that a proposed social group may be deemed impermissibly circular if, after conducting the proper case-by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. The panel explained, however, that a proposed social group is not impermissibly circular merely because the proposed group mentions harm.

The panel concluded that the Board also erred in assuming that domestic violence was the only reason Diaz- Reynoso was unable to leave her relationship, and in failing to conduct the rigorous case-by-case analysis required by Matter of A-B-. The panel therefore remanded Diaz- Reynoso’s withholding of removal claim for the Board to undertake the required analysis applying the correct framework.

Because the Board failed to discuss evidence that Diaz- Reynoso reported her husband’s abuse to authority figures in her village community, and the government conceded remand was warranted, the panel also remanded Diaz-Reynoso’s CAT claim for further consideration.

4 DIAZ-REYNOSO V. BARR

Concurring in the judgment in part and dissenting in part, Judge Bress agreed with remand of the CAT claim in light of the government’s concession, but disagreed with the majority’s conclusion that the Board misread Matter of A-B- in rejecting Diaz-Reynoso’s proposed social group. In Judge Bress’s view, Matter of A-B- held that a proposed group that incorporates harm within its definition is not a group that exists independently of the harm asserted in an application for asylum or statutory withholding of removal. Judge Bress wrote that substantial evidence supported the Board’s assessment that Diaz-Reynoso’s social group was defined exclusively by the harm suffered, and that the Board correctly applied Matter of A-B-, and the circularity rule, in rejecting Diaz-Reynoso’s proposed social group.

COUNSEL:

Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates, Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf, Certified Law Students; Hastings Appellate Project, San Francisco, California; for Petitioner.

Joseph H. Hunt, Assistant Attorney General; John S. Hogan and Linda S. Wernery, Assistant Directors; Susan Bennett Green, Senior Litigation Counsel; Ashley Martin, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.S. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.

Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York New York, for Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals.

Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, Deborah Anker, and Zachary A. Albun, Attorneys; Rosa Baum, Caya Simonsen, and Ana Sewell, Supervised Law Students; Harvard Immigration and Refugee Clinical Program, Cambridge, Massachusetts; for Amicus Curiae Harvard Immigration and Refugee Clinical Program.

Ana C. Reyes and Alexander J. Kasner, Williams & Connolly LLP, Washington, D.C.; Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; for Amicus Curiae United Nations High Commissioner for Refugees.

PANEL: Ronald M. Gould, Morgan Christen, and Daniel A. Bress, Circuit Judges.

OPINION BY: Judge Cristen

CONCURRING/DISSENTING OPINION: Judge Bress

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

Just another example of how under this regime, EOIR’s perverted efforts to deny and deport, especially targeting female asylum seekers from the Northern Triangle for mistreatment and potential deportation to death, waste time and effort that could, in a wiser more just Administration, be used to reduce dockets and waiting times by ensuring that well-documented, deserving cases like this one are rapidly granted. EOIR’s biased performance also reeks of both anti-Latino racism and misogyny. Here we are, two decades into the 21^st Century with our immigration “justice” system still being driven by invidious factors.

The Supremes’ majority may feign ignorance and or indifference to Trump’s and Miller’s overtly racist immigration agenda. But, those of us working in the field of immigration had it figured out long ago. It’s not rocket science! The Trumpsters make little or no real attempt to hide their scofflaw intent and invidious motives. It has, disgustingly, taken a concerted and disingenuous effort by the Supremes’ majority to sweep these unconstitutional attacks on humanity under the carpet.

That’s why we need “regime change” in both the Executive and the Senate which will lead to the appointment of better judges for a better America. Justices and judges who will ditch the institutionalized racism and misogyny and who will make equal justice for all under our Constitution a reality rather than the cruel hoax and “throwaway line” that it is today under GOP mis-governance.

Many thanks to our good friends and pro bono counsel at Gibson Dunn for the help in drafting our Amicus Brief!

Due Process Forever!

PWS

08-07-20

🏴‍☠️🤮👎🏻⚰️”PERP NATION” — Cowardly Regime Uses COVID-19 As Pretext For Grotesque Abuses Of Migrant Children, As Congress, Federal Courts Spinelessly Allow It To Happen! — “Crimes Against Humanity” Have Consequences For “Perp Nations!”

Lomi Kriel
Immigration Reporter
Texas Tribune & Pro Publica

https://www.texastribune.org/2020/08/04/border-migrant-children-hotels/

Federal agents are expelling asylum seekers as young as 8 months from the border, citing COVID-19 risks

Thousands of migrant children have been expelled by the Trump administration since March. Some have been held in hotels without access to lawyers or family. Advocates say many are now “virtually impossible” to find.

BY LOMI KRIEL, THE TEXAS TRIBUNE AND PROPUBLICA AUG. 4, 20208 HOURS AGO

A teenage girl carrying her baby arrived at the U.S. border this summer and begged for help. She told federal agents that she feared returning to Guatemala. The man who raped her she said had threatened to make her “disappear.”

Then, advocates say, the child briefly vanished — into the custody of the U.S. government, which held her and her baby for days in a hotel with almost no outside contact before federal officers summarily expelled them from the country.

Similar actions have played out along the border for months under an emergency health order the Trump administration issued in March. Citing the threat of COVID-19, it granted federal agents sweeping powers to almost immediately return anyone at the border, including infants as young as 8 months. Children are typically entitled to special protections under the law, including the right to have their asylum claims adjudicated by a judge.

Under this new policy, the administration is not deporting children — a proceeding based on years of established law that requires a formal hearing in immigration court.

It is instead expelling them — without a judge’s ruling and after only a cursory government screening and no access to social workers or lawyers, sometimes not even their family, while in U.S. custody. The children are not even granted the primary registration number by which the Department of Homeland Security tracks all immigrants in its care, making it “virtually impossible” to find them, Efrén C. Olivares, a lawyer with the Texas Civil Rights Project, wrote in a court declaration arguing that the practice is illegal.

Little is known about how the process works, but published government figures suggest almost all children arriving at the border are being rapidly returned.

. . . .

A sense of deja vu

Thirty-five years ago, a 15-year-old Salvadoran girl fleeing a civil war in her homeland was also imprisoned in an American hotel under the care of unlicensed private security guards. Jenny Flores’ case forced the most significant overhaul yet of how U.S. authorities can detain migrant children. In fact, the 1997 federal settlement is named for her.

Carlos Holguín, who began litigating that case in 1985, said there is now a sense of “deja vu … but the degree of lawlessness is even beyond what was going on then.”

Since taking office, the Trump administration has tried to end the Flores Settlement, arguing that it and a 2008 trafficking law work as “loopholes” encouraging families to send children here alone. The government has attempted to undo the settlement through regulations and requested Congress curtail the Trafficking Victims Protection Reauthorization Act, which requires certain safeguards for children arriving alone at the border.

So far, both efforts have failed.

The administration tried separating parents and children at the border, but a federal judge largely ruled against the practice in 2018, allowing it only in narrow circumstances such as if the adult poses a danger.

U.S. District Judge Dolly Gee, who is in charge of the Flores Settlement, has determined the administration must quickly release children locked up with their parents in immigrant detention centers, most recently citing the risk of coronavirus spreading.

“The family residential centers are on fire and there is no more time for half measures,” she wrote in a June 26 order.

The government is now arguing it can force detained parents to choose between freeing their children or staying indefinitely imprisoned with them.

But none of the administration’s attempts to undo either the settlement or the law have been as effective as the expulsion order, which is “eviscerating every single protection mechanism outlined by Congress and the courts with one sweeping gesture,” said Podkul of KIND.

Late last month, the ACLU sued to allow its lawyers access to children detained in the McAllen Hampton Inn after a video went viral showing a Texas Civil Rights Project lawyer forcibly pushed away.

“The children are in imminent danger of unlawful removal,” the attorneys wrote.

Facing a public relations scandal, Hilton quickly announced that all three hotels had canceled reservations with MVM.

“We expect all Hilton properties to reject business that would use a hotel in this way,” a Hilton spokesperson said.

Government attorneys agreed to pause the expulsion of the migrants who they said remained in the McAllen hotel on the date of the lawsuit — once again, ACLU attorneys said, mooting litigation on the broader policy. A separate suit involving a 13-year-old Salvadoran girl who was expelled this summer is still pending in a Washington, D.C., federal court.

By the time the administration stopped the removal of the migrants detained at the Hampton Inn, most who had been held there had already been expelled or transferred elsewhere — some, advocates said, just before the ACLU filed its lawsuit. Only 17 family members, including one unaccompanied child, remained in that hotel.

What happened to the rest? No one would say.

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

Read the rest of the article at the link.

It might be “below the radar screen” during COVID-19. After all, that’s what criminals like the Trump kakistocracy and their DHS accomplices count on — a diversion so that they can abuse children and violate human rights and human dignity to the content of their evil, White Nationalist hearts.

But, eventually, the truth about the “crimes against humanity” by the regime’s cowards as well as the complicity of legislators, the Roberts Court, and a host of others will come out.

How will we explain to future generations what we have done to our fellow humans, particularly the most vulnerable who have sought our legal protection and found only cruelty, racism, and lawlessness? How will we justify racist-driven institutionalized child abuse and “Dred Scottification” of “the other” on our watch? We have become “Perp Nation!”

Due Process Forever!

PWS

08-05-20

🏴‍☠️☠️🤮⚰️👎🏻KAKISTOCRACY HAS CONSEQUENCES: CLIMATE MIGRATION IS ONE OF THEM! — Trump’s Stupidity & Cruelty On Immigration Climate Science, & Disease Control Promises Horrible Global Human Disaster For Future Generations — Empowering & Enabling A Moron Is Always A Very Bad Idea! — No Idiotic Wall Or “Drill Baby Drill” Insanity Is Going To Prevent This Human Catastrophe We Are Inflicting On Those Who Follow!

🏴‍☠️

https://www.nytimes.com/interactive/2020/07/23/magazine/climate-migration.html

THE GREAT CLIMATE MIGRATION

By Abrahm Lustgarten | Photographs by Meridith Kohut

Early in 2019, a year before the world shut its borders completely, Jorge A. knew he had to get out of Guatemala. The land was turning against him. For five years, it almost never rained. Then it did rain, and Jorge rushed his last seeds into the ground. The corn sprouted into healthy green stalks, and there was hope — until, without warning, the river flooded. Jorge waded chest-deep into his fields searching in vain for cobs he could still eat. Soon he made a last desperate bet, signing away the tin-roof hut where he lived with his wife and three children against a $1,500 advance in okra seed. But after the flood, the rain stopped again, and everything died. Jorge knew then that if he didn’t get out of Guatemala, his family might die, too.

This article, the first in a series on global climate migration, is a partnership between ProPublica and The New York Times Magazine, with support from the Pulitzer Center. Read more about the data project that underlies the reporting.

Even as hundreds of thousands of Guatemalans fled north toward the United States in recent years, in Jorge’s region — a state called Alta Verapaz, where precipitous mountains covered in coffee plantations and dense, dry forest give way to broader gentle valleys — the residents have largely stayed. Now, though, under a relentless confluence of drought, flood, bankruptcy and starvation, they, too, have begun to leave. Almost everyone here experiences some degree of uncertainty about where their next meal will come from. Half the children are chronically hungry, and many are short for their age, with weak bones and bloated bellies. Their families are all facing the same excruciating decision that confronted Jorge.

The odd weather phenomenon that many blame for the suffering here — the drought and sudden storm pattern known as El Niño — is expected to become more frequent as the planet warms. Many semiarid parts of Guatemala will soon be more like a desert. Rainfall is expected to decrease by 60 percent in some parts of the country, and the amount of water replenishing streams and keeping soil moist will drop by as much as 83 percent. Researchers project that by 2070, yields of some staple crops in the state where Jorge lives will decline by nearly a third.

Scientists have learned to project such changes around the world with surprising precision, but — until recently — little has been known about the human consequences of those changes. As their land fails them, hundreds of millions of people from Central America to Sudan to the Mekong Delta will be forced to choose between flight or death. The result will almost certainly be the greatest wave of global migration the world has seen.

In March, Jorge and his 7-year-old son each packed a pair of pants, three T-shirts, underwear and a toothbrush into a single thin black nylon sack with a drawstring. Jorge’s father had pawned his last four goats for $2,000 to help pay for their transit, another loan the family would have to repay at 100 percent interest. The coyote called at 10 p.m. — they would go that night. They had no idea then where they would wind up, or what they would do when they got there.

From decision to departure, it was three days. And then they were gone.

. . . .

Our modeling and the consensus of academics point to the same bottom line: If societies respond aggressively to climate change and migration and increase their resilience to it, food production will be shored up, poverty reduced and international migration slowed — factors that could help the world remain more stable and more peaceful. If leaders take fewer actions against climate change, or more punitive ones against migrants, food insecurity will deepen, as will poverty. Populations will surge, and cross-border movement will be restricted, leading to greater suffering. Whatever actions governments take next — and when they do it — makes a difference.

The window for action is closing. The world can now expect that with every degree of temperature increase, roughly a billion people will be pushed outside the zone in which humans have lived for thousands of years. For a long time, the climate alarm has been sounded in terms of its economic toll, but now it can increasingly be counted in people harmed. The worst danger, Hinde warned on our walk, is believing that something so frail and ephemeral as a wall can ever be an effective shield against the tide of history. “If we don’t develop a different attitude,” he said, “we’re going to be like people in the lifeboat, beating on those that are trying to climb in.”

Abrahm Lustgarten is a senior environmental reporter at ProPublica. His 2015 series examining the causes of water scarcity in the American West, “Killing the Colorado,” was a finalist for the 2016 Pulitzer Prize for national reporting. Meridith Kohut is an award-winning photojournalist based in Caracas, Venezuela, who has documented global health and humanitarian crises in Latin America for The New York Times for more than a decade. Her recent assignments include photographing migration and childbirth in Venezuela, antigovernment protests in Haiti and the killing of women in Guatemala.

Reporting and translation were contributed by Pedro Pablo Solares in Guatemala and El Salvador, and Louisa Reynolds and Juan de Dios García Davish in Mexico.

Data for opening globe graphic from “Future of the Human Climate Niche,” by Chi Xu, Timothy A. Kohler, Timothy M. Lenton, Jens-Christian Svenning and Marten Scheffer, from Proceedings of the National Academy of Sciences. Graphic by Bryan Christie Design/Joe Lertola.

Maps in Central America graphics sequence show total population shift under the SSP5 / RCP 8.5 and SSP3 / RCP 8.5 scenarios used by the U.N.’s Intergovernmental Panel on Climate Change, and it is calculated on a 15-kilometer grid. A cube-root scale was used to compress the largest peaks.

Projections based on research by The New York Times Magazine and ProPublica, with support from the Pulitzer Center. Model graphics and additional data analysis by Matthew Conlen.

Additional design and development by Jacky Myint and Shannon Lin.

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

Read the full article, with pictures and neat graphics, at the link!

“Safe Third Countries” indeed! It’s total fraud-enhanced immorality by the Trump regime, with our failed and failing “governing institutions” and the rest of the world fecklessly watching us be driven by the irrational hate and stupidity filled agenda of a madman and his toadies!

No wall will be high enough, no “American Gulag” cruel enough, no rhetoric racist enough, no laws hateful enough, no Supreme Court dehumanizing enough, no immorality and stupidity gross enough to stop mass human migration driven by climate change. “Desperate people do desperate things!”

This November, vote like the future of humanity depends on it. Because it does!

PWS

07-26-20

🏴‍☠️☠️🤮👎🏻ERROR SUPPLY: EOIR’s Anti-Asylum Bias, Failure To Apply Precedents, Earns Yet Another Rebuke From 3d Cir. — Blanco v. AG

Dan Kowalski reports for LexisNexis Immigration Community:

Immigration Law

Daniel M. Kowalski

25 Jul 2020

persecution

cat

Honduras

asylum

CA3 on Persecution: Blanco v. Atty. Gen.

Blanco v. Atty. Gen.

“Ricardo Javier Blanco, a citizen of Honduras, is a member of Honduras’s Liberty and Refoundation (“LIBRE”) Party, an anti-corruption political party that opposes the current Honduran president. After participating in six political marches, he was abducted by the Honduran police and beaten, on and off, for twelve hours. He was let go but received death threats over the next several months until he fled to the United States. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all relief, and the Board of Immigration Appeals (“BIA”) affirmed. Blanco now petitions for review of the agency’s decision, arguing that the BIA and IJ erred in denying his asylum and withholding of removal claims on the basis that his treatment did not rise to the level of persecution. He also argues that it was improper to require him to corroborate his testimony to prove his CAT claim. Because the agency misapplied our precedent when determining whether Blanco had established past persecution, and because it did not follow the three-part inquiry we established in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), before requiring Blanco to corroborate his CAT claim testimony, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings.”

[Hats off to patent lawyers Gary H. Levin and Aaron B. Rabinowitz!]

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

This should have been a “no brainer” asylum grant!

Instead, after two levels of disturbingly unprofessional administrative decision-making, now driven by racism and overt anti-immigrant bias, and one layer of “real court” review, the case is basically back to square one. No wonder this “Deadly Clown Court” ☠️🤡 is running a 1.4 million backlog, and counting!

Think we have the wrong folks on the “Immigration Bench?” You bet! Two smart patent lawyers from Baker Hostetler run legal circles around an IJ, the BIA, and OIL!

Interestingly, a significant number of students in my Georgetown Law Summer Semester Immigration Law & Policy (“ILP”) Class have been patent examiners and/or patent attorneys! They have all been amazing, both in class dialogue and on the final exam. I suspect it has something to do with analytical skills, meticulous research, and attention to detail — always biggies in asylum litigation!

That’s why we must end a “built to fail” system that preys on unrepresented or underrepresented asylum seekers in illegal, intentionally inhumane and coercive, detention settings, where adequate preparation and documentation are impossible and where judges, too often lacking in asylum expertise, humanity, and/or the time to carefully research and deliberate, are pressured to engage in “assembly line denials.”

And, thanks to the racial dehumanization embraced by the Supremes’ majority many refugees, disproportionately those with brown or black skins, are completely denied fair access to the asylum hearing system. They are simply treated by our highest Court like human garbage — sent back to torture or potential death in unsafe foreign countries without any due process at all. So, the systemic failure is not by any means limited to the “Immigration Star Chambers.”

A simple rule of judging that appears “over the heads” of the current Supremes majority: If it wouldn’t be due process for you or your family in a death penalty case, than it’s not due process for any “person.” Not “rocket science.” Just “Con Law 101” with doses of common sense and simple humanity thrown in. So why is it beyond the capabilities of our most powerful judges?

If there is any good news coming out of this mess, it’s that more talented litigators like Gary Levin and Aaron Rabinowitz from firms like Baker Hostetler are becoming involved in immigration and human rights litigation. They often run circles around Billy the Bigot’s ethically-challenged group of captive DOJ lawyers, who can no longer operate independently and ethically, even if they want to.

So, in a better future, after regime change, there are going to be lots of really great sources for better judges out there at all levels of the Federal Judiciary from the eventually independent Immigration Courts, to the U.S. District Courts and Magistrate Judges, to the Courts of Appeals, all the way to the Supremes.

At the latter, we need new and better Justices: Justices who understand immigration and human rights laws and the overriding human interests at stake, who will “lose” the White institutional racial bias and perverted right-wing ideologies that infect our current Court, and who are dedicated to making the vision of folks like Dr. King and Congressman John Lewis for “equal justice under law” and an end to dehumanization of persons of color a reality under our Constitution and within our system of justice!

There is no excuse for the current Supreme Court-enabled travesty unfolding in a biased, broken, and dysfunctional immigration system every day!

Due Process Forever!

This November, vote like our nation’s future existence depends on it! Because it does!

PWS

07-26-20

🤮👎☠️SCREWED: ICE, Advocates, Judge Conspiring To Sell Out Refugee Kids & Families To Illegal Racist Scheme Called “Binary Choice” To Disguise Invidious Intent!

Michelle Hackman
Immigration Reporter
Wall Street Journal

Alicia A. Caldwell
Immigration Reporter
Wall Street Journal

https://apple.news/A4SQ_qG_DSme90hH0KK4C4g

Michelle Hackman and Alicia Caldwell report for the WSJ:

WASHINGTON—The Trump administration is nearing a deal with some immigrant advocates that would present a choice to jailed parents fighting denial of asylum: let their children be released without them or remain detained together indefinitely, according to federal court filings and lawyers for the children.

The deal is being negotiated between U.S. Immigration and Customs Enforcement and attorneys representing roughly 100 children in detention, a development that has divided the pro-immigrant advocacy community.

If enacted, the “binary choice” plan, as it is known, would realize a long-sought goal by the Trump administration not to release immigrant families seeking asylum together in the U.S. Many of these families report fleeing gang violence, poverty or corruption in Central American countries. The plan would allow parents to choose between releasing their children to relatives in the U.S. or long-term foster care, or keeping their families in detention, waiving rights given to the children under a 23-year-old court settlement.

That settlement, known as the Flores agreement, requires ICE to release migrant children in its custody, not entire families, though past administrations, including the Trump administration until last year, largely complied with it by releasing children together with their parents.

Most immigrant advocates oppose “binary choice,” arguing it is tantamount to a new family separation policy, akin to a policy the administration adopted briefly in 2018 to prosecute all adults crossing the border illegally. The policy resulted in children being taken away from those adults. The government halted those family separations after a broad bipartisan outcry, though it has been looking for other ways to deter migrant families from seeking asylum ever since.

“Asking a parent to choose between indefinite detention in a place where there is already a Covid outbreak and being separated from your child for an undetermined length of time, that is a coercive situation,” said Stephanie Alvarez-Jones, a staff attorney with Proyecto Dilley, which provides legal representation to families at the South Texas Family Residential Center in Dilley, Texas.

The lawyers working with ICE, who represent the children in continuing enforcement of the Flores agreement, say they are left with little choice and aim to protect the best interests of the migrant children.

“By negotiating, we’ve been able to substantially lessen the harshness of ICE’s proposal,” said Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law, which has managed the Flores Agreement.

ICE declined to comment on the details of the case, citing the pending litigation.

. . . .

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

Those with full WSJ access can read the complete article at the link.

It’s not rocket science. “Binary choice” is nothing but a racist scam designed by Stephen Miller and other White Nationalists in the regime primarily to punish asylum seekers of color and their children for seeking legal protection, to traumatize and duress them into giving up potentially valid claims, to inflict lasting psychological harm on non-white populations, and to serve as an example and deterrent to others who might dare to exercise their legal rights in the face of tyranny by a racist Executive. All of the foregoing are in clear violation of the 5^th, 8^th, and 14^th Amendments to the U.S. Constitution, not to mention our asylum statutes and international instruments to which we supposedly are party. You don’t need a law degree to figure that out.

Those who have engineered, furthered, and gone along to get along with these gross abuses of children and betrayals of the human rights and dignity of the most vulnerable among us will not escape the judgment of history. Sadly, that will be small consolation for the multitude of broken bodies, traumatized minds, and damaged souls that they leave in their ugly wake!

⁴²For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no drink:

⁴³I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not.

⁴⁴Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee?

⁴⁵Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me.

—— Matthew 25

Due Process Forever!

PWS

07-23-20

MORE DEADLY ☠️ MISTAKES: 6th Cir. Finds BIA Ignored Relevant Evidence In Trying To Deny Asylum To Russian Whistleblower — Skripkov v. Barr

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-asylum-russia-corruption-skripkov-v-barr#

CA6 on Asylum, Russia, Corruption: Skripkov v. Barr

Skripkov v. Barr

“Andrei Skripkov, a citizen of Russia, seeks review of a decision by the Board of Immigration Appeals (BIA) upholding an Immigration Judge’s (IJ’s) denial of his application for asylum and the withholding of removal. Skripkov asserted in his application that he was persecuted in his home country on account of his political opinion. He specifically contended that his anticorruption whistleblowing activities motivated Russian officials to persecute him. The IJ and the BIA, on the other hand, found that the officials were motivated solely by their pecuniary interest in furthering a corrupt scheme disrupted by Skripkov. In his petition for review, Skripkov argues that the BIA erred in disregarding evidence that he would be criminally prosecuted for his political opinion if he is returned to Russia. For the reasons set forth below, we GRANT Skripkov’s petition for review and REMAND the case to the BIA for further proceedings consistent with this opinion.”

[Hats off to Brenna D. Duncan!]

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

When the objective is to reject, not protect, mistakes are inevitable. This is just the tip of the iceberg. Most folks whose lives are being chewed up and spit out by the “designed to be unjust” Immigration Court system don’t have the good fortune to be represented by Brenna D. Duncan or someone of her caliber.

Indeed, under the ongoing illegal travesty that now passes for “justice” in America, most legal asylum seekers are turned away at the border without any hearing or meaningful process at all.

Interestingly, Brenna D. Duncan, a rising superstar at the international commercial law firm of Perkins Coie appears to have practiced primarily in the area of commercial litigation. Yet, she clearly understands immigration and human rights law better than the Immigration Judge and the BIA Appellate Immigration Judges involved in this case.

That’s why actual experience representing immigrants and asylum seekers is such a critical qualification for good Immigration Judges at both the trial and appellate levels as well as being something that should be a factor in appointing future Article III Judges at all levels right up to and particularly including the Supremes. Years of one-sided prosecutorial or law enforcement experience is often no substitute for the “real deal” of experience understanding immigrants and asylum seekers from their perspective.

The current Immigration Court system is intentionally and fatally skewed against asylum seekers, immigrants, due process, and fundamental fairness. Until that changes, equal justice under law will continue to be a cruel, unachieved illusion in our American justice system.

Due Process Forever!

PWS

07-22-20

DRED SCOTTIFICATION OF “THE OTHER” — Supremes’ Anti-Constitutional “De-Personification” Of Asylum Applicants of Color With Lives At Stake Shows Why America Is In A Constitutional & Racial Mess Right Now — Analysis of Thuraissigiam By Professor Elliott Young!

https://historynewsnetwork.org/article/176454

Elliott Young is a professor of History at Lewis & Clark College and the author of a forthcoming book Forever Prisoners: How the United States Made the Largest Immigrant Detention System in the World (Oxford University Press).

. . . .

For more than one hundred years, the entry fiction has enabled the US government to deny immigrants due process protections that the 14th Amendment clearly indicates apply “to any person within its jurisdiction.” Although Justice Alito seems to restrict the ruling to people who entered the country within the previous 24 hours and within 25 yards of the border, the logic of the decision poses a more ominous threat to all immigrants who were not lawfully admitted.

As Justice Sotomayor writes in her dissent, “Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.”

It is this threat to more than 10 million immigrants living in the United States without authorization that makes the Thuraissigiam decision such a blow to the basic principles of freedom and justice. It would be odd for a country that imagines itself to be a beacon of hope for people around the world to deny basic constitutional protections to asylum seekers when they finally cross our threshold.

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

Read the full article at the link.

It’s not rocket science. The Constitution is clear. The “fog” here has to do with the disingenuous “reasoning” and legal gobbledygook cooked up by the majority Justices to deny Constitutional rights to people of color. Better judges for a better America! From voting rights to immigration, the current Supremes’ majority has too often undermined the right of all persons in America to equal justice under law. That’s exactly what institutionalized racism looks like.

Without major changes in all three branches of our failing Federal Government, equal justice for all in America will remain as much of an illusion as it has been since the inception of our nation. We have the power to do more than talk about equal justice — to start taking the necessary political action that will make it a reality. But, do we have the will and the moral courage to make it happen?

This November vote like your life and the life of our nation depend on it! Because they do!

PWS

07-21-20

MATTER OF A-B- NEWS: Split DC Cir. Issues “Split Decision” in Grace v. Barr (formerly Grace v. Sessions, Grace v. Whitaker)

2-1 D.C. Circuit decision in Grace v. Barr, on the AG’s credible-fear rules.

Holding: We reverse the district court’s grant of summary judgment with respect to the circularity rule and the statements regarding domestic- and gang-violence claims, vacate the injunction insofar as it pertains to those issues, and remand to the district court for further proceedings consistent with this opinion. In all other respects, we affirm.

—

Marty Lederman

Georgetown University Law Center

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

Perhaps the key holdings in this 45-page majority decision are that:

The “condoned- or-completely-helpless standard” cannot replace the “unable or unwilling to control” standard in determining whether persecution by non-state-actors” (e.g., gangs) qualifies; and
The direction to apply “law of the Circuit where the credible fear interview took place” instead of “the interpretation most favorable to the applicant . . . when determining whether the applicant meets the credible fear standard” is arbitrary and capricious.

The full decision with dissent is at the above link.

Of course, with most asylum and immigration laws for arriving individuals basically (and quite illegally) “suspended” during the COVID-19 “crisis,” and the regime’s plans (also patently illegal) to repeal asylum law by regulation in process, the practical effects of this decision remain unclear.

PWS

07-17-20

☠️👎🏻🤮GOODBYE GONZO! — Notorious Racist, Bigot, Homophobe, Misogynist Loses GOP Primary — Blinded By The Fog of Hate, Gonzo Never Understood Trump’s Sole Overriding Concern — Eventually, His Failure To Put Shielding Trump’s Corruption First Made Him “the only monument to the Confederacy that Trump was eager to remove.” (Pema Levy @ Mother Jones)

By Paul Wickham Schmidt

Exclusive for Courtside

July 14, 2020

Back before the 2016 election, GOP backbench Jim Crow hate monger Senator Jeff “Gonzo Apocalypto” Sessions saw a kindred spirit who would help him realize his whitewashed, faux Christian view of America: Donald Trump. Becoming the first Senator to endorse Trump got Gonzo a ticket to the U.S. Attorney General’s Office, where he quickly established himself as probably the worst inhabitant after the Civil War and before Billy Barr ( a period that notably includes “John the Con” Mitchell).

During his tenure, Gonzo separated families, caged kids, targeted vulnerable Latino refugee women for abuse, illegally punished “sanctuary cities,” expanded the “New American Gulag,” diverted prosecutorial resources from real crimes to minor immigration violations, expanded the “New American Gulag,” advocated discrimination against the LGBTQ community under the guise of religious bigotry, encouraged police brutality against Black Americans, aided efforts to disenfranchise Black and Latino voters, spread false narratives about immigrant crime and asylum fraud, dissed private lawyers, stripped Immigration Judges of their authority to control their own dockets, multiplied the Immigration Court backlogs, illegally tried to terminate DACA while smearing Dreamers, spoke to hate groups, issued unethical “precedent decisions” while falsely claiming to be acting in a quasi-judicial capacity, interfered with asylum grants and judicial independence, put anti-due-process production quotas on Immigration Judges, attempted to dismantle congressionally mandated “know your rights” programs, to name just a few of his gross abuses of public office. Indeed, other than Stephen Miller and Trump himself, how many notorious child abusers get to walk free in America while their victims suffer lifetime trauma?

Despite never being the brightest bulb in the pack, his feeble attempt at “legal opinions” sometimes drawing ridicule from lower court judges, Gonzo is generally credited with doing more than any other Cabinet member to advance Trump’s agenda of hate and White Nationalist bigotry. He actually was dumb enough to believe that his unswerving dedication to a program of promoting the white race over people of color and Christians over all other religions would ingratiate him with Trump.

That would assume, however, that Trump had some guiding principle, however vile and disgusting, beyond himself. Sessions might be the only person in Washington who thought racism would trump self-protection. I’m not saying that Trump isn’t a committed racist — clearly he is. Just that his commitment to racism is subservient to his only real defining characteristic — narcissism. Just ask his niece, Mary.

Gonzo failed in the only thing that ever counted: Protecting Trump, his family, and his corrupt cronies from the Mueller investigation. It wasn’t, as some have inaccurately claimed, a show of ethics or dedication to the law.

Even Gonzo realized that participating in an investigation involving a campaign organization of which he was a member and therefore both a potential witness and target, would be an egregious ethical violation that could cost him his law license as well as a potential criminal act of perjury, given that he had testified under oath during his Senate confirmation that he intended to recuse himself. Apparently, that was on a day when Trump was too busy tweeting or playing golf to focus on the implications of that particular statement under oath by his nominee.

After Trump fired him, Gonzo’s political fortunes took a sharp downturn. A guy who polled 97% of the vote in running unopposed for the Senate in 2014, polled only 38% of the vote in overwhelmingly losing the GOP primary to former Auburn Football Coach Tommy Tuberville. Tommy, a “Trump loyalist” with extreme far-right views and no known qualifications for the job, is not much of an improvement over Sessions.

Perhaps the only good news is that Alabama currently has a very decent and competent U.S. Senator, Doug Jones (D), who represents all of the people of the state. Everybody should support Doug’s campaign to maintain decency and commitment to equal justice in Government.

For those who want a further retrospective on Sessions’s grotesque career of promoting a return to Jim Crow while on the public dole, I recommend the following articles from Mother Jones and the Advocate:

https://www.motherjones.com/politics/2020/07/jeff-sessions-ends-his-political-career-in-a-blaze-of-racism/

https://www.advocate.com/politics/2020/7/14/career-racist-homophobe-jeff-sessions-over

Goodbye and good riddance to one of America’s worst and most disgusting politicos not named Trump or Steve King.

Due Process Forever!

PWS

07-15-20

😎👍🏼🗽⚖️GOOD NEWS CORNER: Hofstra Law Clinic Wins Salvadoran Gang PSG Asylum Case! — There Are “Models For Excellent Judging” Out There! Why Do We Tolerate A White Nationalist Kakistocracy That Maliciously Undermines Them?

Hello,

I want to share some good news: my Deportation Defense Clinic at the Hofstra Law Clinic won an asylum case on the PSG of “U.S. law enforcement labeled gang members” before Judge Poczter at 290 Broadway for a client falsely accused of gang allegations. See the redacted decision attached. We’re waiting to see if DHS appeals within these next two weeks and are prepared to continue the fight if necessary.

Quote on Page 13:

“Respondent’s social group, ‘U.S. law enforcement labeled gang members’ is cognizable, in that its members share an immutable characteristic that is socially distinct within Salvadorian society and defined with sufficient particularity.”

I’m willing to share the redacted TOE and brief with those interested.

Deep gratitude is owed to CLINIC/NITA, Michelle Mendez, Vickie Neilson, and folks at Hofstra including Lauris Wren, law graduates Lorena Paulino and Trishshawn Raffington, and many others.

Dr. Tom Boerman and I are working on a law review article on this topic, and I hope this new resource will be helpful to others defending clients from false gang allegations. More to follow soon.

Best,

Alex Holtzman

Director of the Deportation Defense Clinic

Hofstra Law Clinic

Redacted_IJ Decision_Asylum grant for false gang alleg PSG

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

So, even in the time of time of extreme White Nationalist restrictionism in Government, there are still plenty of “winnable” asylum cases out there if individuals: 1) get access to the hearing process; 2) have access to competent lawyers; 3) get time to prepare and document cases; and 4) have a fair and impartial Immigration Judge with knowledge of asylum law. A fair and reasonable INS Assistant Chief Counsel is also an important factor.

How many valid cases like this are being turned back at our borders under the regime’s “fake COVID-19” rules with no hearings at all? How many are being summarily deported without fair credible fear interviews or an opportunity for impartial judicial review as a result of the Supremes’ latest expedited removal constitutional abomination?

Interestingly, this case was so well prepared and documented that ICE and the Clinic stipulated as to the testimony and merely submitted that record to Judge Poczter for a legal analysis and decision. Shows that without political interference, judges and parties can work together to facilitate a fair and timely resolution of cases without trampling on due process.

It’s simply a “crime against humanity” that the Immigration Court system is run by bigoted anti-asylum zealots with no interest in due process or fundamental fairness.

So, what if decisions like Judge Poczter’s (a former BIA Attorney Advisor during my tenure) were the precedents, instead of deny, deny, deny? What if “best practices” were valued? What if achieving correct results in accordance with due process were the object, rather than increasing the number of asylum denials to fit a false narrative? What if asylum law were properly applied to protect, rather than reject?

This could be a system that would do justice and make America proud. But, it’s not going to happen without an independent, merit-based judiciary and an Administration that works to achieve equal justice for all, rather than undermining it at every step.

Due Process Forever!

PWS

07-15-20

☠️👎DEATH PANEL: Billy The Bigot’s BIA Spends 34-Pages Stomping Every Aspect Of Claim By Victim Of Trump’s MPP — Matter of M-D-C-V-

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMDA3MTQuMjQzNjA1MjEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xMjkzOTcxL2Rvd25sb2FkIn0.GQ-40i9lJzne69mtiz5FLkL4ucpejz820EUlR2HEV7E/s/842922301/br/81011306761-l

Matter of M-D-C-V-, 28 I&N Dec. 18 (BIA 2020)

BIA HEADNOTE:

Under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory may be returned by the Department of Homeland Security to that country pursuant to the Migrant Protection Protocols, regardless of whether the alien arrives at or between a designated port of entry.

PANEL: Board Panel: MALPHRUS and CREPPY, Appellate Immigration Judges; MORRIS, Temporary Appellate Immigration Judge.

OPINION BY: Judge Malphrus

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

The deny, deny, deny message is very clear!

To keep what the BIA and the Administration are doing to our fellow humans in perspective, however, remember that:

Human Rights Watch studied the cases of more than 200 individuals who were returned to El Salvador by the Administration;
Of these, 138 were killed upon return;
Another 70 were “subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or . . . went missing following their return;”

https://immigrationcourtside.com/2020/02/11/its-1939-white-nationalist-america-is-failing-humanity-again-the-st-louis-replay-history-will-neither-forget-nor-forgive-us-for-wrongfully-sending-refugees-to-thei/

That’s a high kill/abuse rate. But, that’s exactly what human rights criminals like Stephen Miller “get off on.” “Death to the other!”

And, so far, the Supremes have obliged the White Nationalists’ program of “Dred Scottification” as long as it applies to “the others,” primarily persons of color, not deserving in the elitists’ view of being treated as “persons” under the law or as “human beings” under any laws. Eventually, however, posterity will have something to say about Trump, Miller, Roberts, McConnell, Barr, Wolf, Sessions, Pence, Alito and a host of others who have knowingly participated in these intentional degradations of humanity and furthering of White Supremacy!

Due Process Forever!

PWS

07-14-20

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