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

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

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

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

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

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

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

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

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

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

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

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

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

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

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

IDENTITY AND INTEREST OF AMICI CURIAE

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

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

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

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

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

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

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

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

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

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

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

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

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

SUMMARY OF ARGUMENT

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

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

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

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

2018.03.15 CJLG Amicus Brief of IJs

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

DUE PROCESS FOREVER!

PWS

03-20-18

WASHPOST: MICHAEL E. MILLER & JON GERBERG REPORT — Nation Of Shame — How The Trump Administration Stomps On The Human Rights Of The Most Vulnerable Refugees Every Day!

https://www.washingtonpost.com/local/wheres-mommy-a-family-fled-death-threats-only-to-face-separation-at-the-border/2018/03/18/94e227ea-2675-11e8-874b-d517e912f125_story.html

Miller & Gerberg report:

“HOUSTON— They had come so far together, almost 3,000 miles across three countries and three borders: a mother with three children, fleeing a gang in El Salvador that had tried to kill her teenage son.

But now, in a frigid Border Patrol facility in Arizona where they were seeking asylum, Silvana Bermudez was told she had to say goodbye.

Her kids were being taken from her.

She handed her sleeping preschooler to her oldest, a 16-year-old with a whisper of a mustache whose life had been baseball and anime until a gun was pointed at his head.

“My love, take care of your little brother,” she told him on Dec. 17.

“Bye, Mommy,” said her 11-year-old daughter, sobbing.

And then her children were gone.

Once a rarity, family separations at the border have soared under President Trump, according to advocacy groups and immigration lawyers.

The administration first put forth the idea a year ago, when John F. Kelly, then secretary of the Department of Homeland Security, said he was considering separating parents from their children as a deterrent to illegal immigration.

Kelly, now the White House chief of staff, quickly walked back his comments after they triggered public outrage, and the controversy ebbed as illegal immigration plunged to historic lows.

But when border apprehensions began to rise again late last year, so, too, did reports of children being stripped from their parents by Border Patrol or Immigration and Customs Enforcement agents.

“Separating children from their parents is unconscionable and contradicts the most basic of American family values,” 71 Democratic lawmakers said in a letter to DHS in February.

The separation of a Congolese mother from her 7-year-old daughter generated headlines and spurred a class-action lawsuit by the American Civil Liberties Union this month.

“We are hearing about hundreds of families,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

“DHS does not currently have a policy of separating women and children,” according to an agency statement released this month, but retains the authority to do so in certain circumstances, “particularly to protect a child from potential smuggling and trafficking activities.”

“The truth is that whether they call it a policy or not, they are doing it,” Gelernt said.

For Silvana’s children, the separation was bewildering and frightening.

They had no idea where their mother was. Did their father, who had fled to the United States months earlier, know where they were? They were told they’d join their family in a few days, but days turned into weeks.

Surrounded by strangers in a strange place, they wondered: Would they ever see their parents again?

‘My soul left me’

The family’s crisis began a year ago, when Silvana’s husband, Yulio Bermudez, refused to help MS-13 members in San Salvador escape from police in his taxi. The gang beat him and threatened to kill him.

Silvana Bermudez weeps on March 16 as she watches a video of her children during their separation. (Michael Stravato/For The Washington Post)

Yulio fled north and crossed illegally into Texas, where the 34-year-old claimed asylum and eventually joined relatives.

Then one night in November, Silvana sent her oldest son — Yulio’s stepson — to a pupuseria down the block. As he was walking, the teenager saw a car pull up. A member of MS-13’s rival, the 18th Street gang, peppered the restaurant with gunfire.

The gang member then turned his gun on the teen, who was frozen with fear. But when he pulled the trigger, there was only the click of an empty chamber.

“Must be your lucky day,” the gangster said and sped off.

[‘People here live in fear’: MS-13 menaces a community seven miles from the White House]

Silvana, 33, and her son reported the incident to police, also describing Yulio’s run-in with MS-13. Within days, MS-13 members showed up to their door to tell Silvana she’d pay for snitching, she would later tell U.S. immigration officials. And when the 18th Street member saw her in the street, he pointed his finger at her like a gun.

“It was a clear sign that he was on to us and he wanted to hurt me and my child,” she said in immigration court filings.

Relatives drove Silvana and her kids to the border with Guatemala, where they caught the first of many buses on their way to America.

When they arrived at the U.S.-Mexico border several days later, Silvana and her children followed a group of migrants through the night to a tall brick wall.

“When I saw they were jumping a wall, I said, ‘Oh my God, where do I go from here?’ ” Silvana recalled in an interview. But it was too late to turn back, so she ushered her daughter forward and watched as the 11-year-old disappeared over the wall. Then she handed up her 3-year-old.

“My soul left me, because the wall was very high,” she recalled. Out of sight on the other side of the wall, migrants caught the boy using a blanket.

They had been walking through the desert for a few minutes when they were caught and taken to a “hielera,” or ice box, the nickname for the cold, barren Border Patrol facilities along the frontier where detained migrants sleep dozens to a room.

There, Silvana was told she was being separated from her kids because she had tried to enter the country illegally a decade earlier. Border Patrol agents said she would be charged with “illegal reentry” — a felony punishable by up to 20 years in prison — and that her children could not join her in court, she recalled later. (The Washington Post is not naming the children because of the family’s fears about their safety.)

Instead, the kids were loaded onto a van and driven for four hours. As his baby brother slept in his arms, the 16-year-old could hear his sister crying out for their mom. He tried to comfort her, but a metal divider stood between them.

[She fought to keep immigrants from being deported. Now she faces the same fate.]

The desert gave way to neighborhoods, and the 11-year-old said she began to believe they were being taken to their dad’s house. When the van finally stopped in front of a large building on the outskirts of Phoenix, she thought: My dad lives in a hotel?

But the building wasn’t a hotel. It was La Hacienda del Sol, one of dozens of shelters around the country for unaccompanied minors. And it was surrounded by a six-foot fence.

Silvana’s sons were given bunk beds in a room with several other boys. The windows were equipped with alarms, which often went off during the night. Each evening, the 16-year-old would lie awake worrying about their fate.

And each morning, the 3-year-old would wake up and ask the same question.

“Where’s Mommy?”

“She had to go to work,” his older brother would say. “She had to go shopping.”

Silvana’s Bermudez’s 3-year-old son kept asking, “Where’s Mommy?” during their long separation. (Michael E Miller/The Washington Post)

The boys had each other, but their sister was by herself in a wing for girls. They only saw her at meals and for a few hours in the evening, when they would play Battleship or Connect 4.

Silvana had given her oldest son a scrap of paper with his stepdad’s phone number on it. But he’d lost it. There was no Internet at the shelter, and when the teen asked to access Facebook to contact Yulio, he said he was told he’d have to make an official request.

Days passed as the children waited for Yulio or Silvana to find them. They took classes, spoke to therapists and received vaccinations. All the while, there was a constant churn of children around them. They would make new friends, only to lose them a few days later, writing their names in notebooks in the hopes of one day re-connecting.

At one point, the 11-year-old’s only roommate was a 4-year-old. Shelter employees asked her to help care for the girl by warming up her bottle and putting her to sleep.

“She was alone,” Silvana’s daughter said. “Without her mom. Without anyone.”

Christmas arrived without word from their parents. Instead of dinner with family and fireworks in the streets of San Salvador, there was pizza and a shelter employee dressed as Santa Claus dispensing winter hats and plastic yo-yos. When Silvana’s daughter began shimmying to Latin music like she had in her dance troupe in El Salvador, she was told to tone it down. And a no-touching rule meant she wasn’t allowed to hug her older brother, even when the clock struck midnight on New Year’s Eve.

The 11-year-old began to despair.

“At first I thought it’d only be a few days before I saw my dad,” she recalled. “But after a month there, I was going crazy, thinking, When? When? When?”

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

Go to the link to read the rest of the article.

This story should be appalling to every American on two levels. First, the unnecessarily cruel policy of separating families, which has frequently been in the news lately.

But, additionally, these folks are refugees who should be granted protection under U.S laws. However, because of unrealistically restrictive politically influenced decisions by the “captive” Board of Immigration Appeals (“BIA”) in the U.S. Department of Justice, and undue deference given to BIA by the Federal Courts under the so-called “Chevron doctrine,” individuals like this basically face a “crap shoot” as to whether protection will in fact be granted.

With a good lawyer, time to prepare and document their case, the right U.S. Immigration Judge, the right BIA “appellate panel,” and the right Court of Appeals panel, protection can be granted under the law in these cases. But, because there are no appointed counsel in Immigration Court cases, most families like this don’t get the top flight legal help that they need to understand the unduly and intentionally overcomplicated law and prepare a winning case. Moreover, too many Immigration Judges at both the trial and appellate levels are biased against or unreceptive to asylum cases from the so-called “Northern Triangle” involving gang violence. Some Circuit Court of Appeals panels care and take the time to carefully review BIA findings; others view their “Ivory Tower Sinecures” as an excuse to merely “rubber stamp” the BIA result without giving it much, if any, apparent thought. And this was happening before the Trump Administration took over.

Now, with the biased, White Nationalist, anti-asylum, restrictionist Jeff Sessions actually in charge of our Immigration Courts it’s basically “open season” on the most vulnerable asylum seekers. Sessions rapidly is moving to make the entire U.S. asylum process basically a “Death Train” with the Immigration Courts and the BIA as mere “whistle stops on the deportation railway.”

Outrageously and shamelessly, Sessions has moved to make it difficult or impossible for individuals to obtain counsel by detaining them in out-of-the-way locations specifically selected for lack of availability of legal services and harsh conditions; separated families to demoralize, punish, and terrorize applicants; cranked up the pressure on already overburdened U.S. Immigration Judges in a system already collapsing under 670,000 pending cases to turn out more mindless removal orders; limited the rights of asylum applicants to full hearings — for all practical purposes a “death sentence” for the majority of those who are unrepresented; and indicated an intention to strip particularly vulnerable women, children, gays, and other asylum applicants similar to this family of the bulk of the already merger substantive legal protections they now possess.

Yes, Sessions’s evil and idiotic plan — which reverses decades of settled administrative precedents — is likely to tie up the Federal Courts for years if not generations. But, not everyone in the position of these families has the time, resources, and know how to navigate the Courts of Appeals to obtain justice. That’s particularly true when folks are held in detention in deliberately substandard conditions.

Because Congressional Republicans have long since abandoned any pretensions to human decency or to care about the Constitutional and statutory rights of migrants, Sessions is running roughshod over the laws, the Constitution, and human rights, and wasting taxpayer money by grossly mismanaging the Immigration Courts, without any meaningful oversight whatsoever.

No, folks like the Bermudez family aren’t “fraudsters,” “terrorists,” “frivolous filers,” “economic refugees,” “job stealers,” “system abusers,” “dangerous criminals,” “gangsters” or any of the other litany of false and derogatory terms that Sessions and his ilk intentionally and disingenuously use to describe refugees and asylum seekers. They are frightened, yet courageous, human beings fighting for their legal rights and their very lives in a system already intentionally and unfairly stacked against them.

Through articles like this and court cases, we are making a record of the human rights abuses of Sessions and the rest of the Trump Administration. The “New Due Process Army” will continue to fight injustice throughout our country! For those supporting, enabling, or consciously ignoring this Administration’s human rights atrocities, history will be the judge. Harm to the most vulnerable among us is harm to all!

Due Process Forever!

PWS

03-20-19

VICTORY ON THE WESTERN FRONT: “Western Brigade Of The NDPA” (A/K/A Pangea Legal Services) wins Key Bond Battle! — “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice. . . . We hope Floricel’s case serves as a lesson for all immigration judges across the United States.”

https://static1.squarespace.com/static/50b1609de4b054abacd5ab6c/t/5aab2aac758d467bf8761e84/1521167020690/Habeas+Order,+Floricel+Liborio+Ramos+v.+Sessions,+2018.03.13.pdf

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FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

March 15, 2018
by Pangea Team

On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States. Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility. Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.”

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

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THE UGLY AMERICANS: WASHPOST ARTICLES HIGHLIGHT INTENTIONAL INHUMANITY & CRUELTY OF DHS’S “DETAIN TO DETER” PROGRAM AS ACLU SUES TO HALT THE ABUSES! – Is This The Legacy Of America That YOU Want To Leave?– If Not, Join The NDPA & Fight To Make Our Government Comply With The Due Process Clause Of Our Constitution & To Restore Humane Values!

7d0dc09a-27a4-11e8-bc72-077aa4dab9ef_story.html?utm_term=.e726c83aab19

Why was a 7-year-old separated from her mother for four months? DHS won’t say.

The seal of the Department of Homeland Security. (Mandel Ngan/AFP/Getty Images)

By Editorial Board March 15 at 7:23 PM

WHO KNOWS why Homeland Security agents in Southern California forcibly separated a 7-year-old Congolese girl from her mother last fall, flew her 2,000 miles to Chicago, where she was placed at a facility for unaccompanied minors, and kept her there for more than four months? Who knows why the girl, who is credibly reported to have been traumatized, has been permitted to speak with her mother, only recently released from a detention center near San Diego, just a handful of times in the intervening four months? And in the absence of any evidence of wrongdoing by the mother, who presented herself to U.S. officials when she crossed the border from Mexico, who knows why the government has continued to keep parent and child apart?

The Department of Homeland Security has declined to comment on the case of the two asylum seekers, known in court filings as Ms. L and S.S. But a spokesman said in a statement that agents may separate children and adults if they suspect the child may be a human-trafficking victim. “If we are unable to confirm this relationship [between adult and child],” said the spokesman, Tyler Houlton, “we must take steps to protect the child,” including placing her in a facility for unaccompanied children.

In this case, DHS’s effort to establish Ms. L’s guilt by insinuation failed, and its stated concern for the child’s protection and well-being has been exposed as phony. For four months, no testing was performed to establish the woman’s maternity. And when, following a lawsuit filed on their behalf, the two were finally subjected to DNA testing this month, the result was unequivocal: Ms. L is the mother of S.S.

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That finding has been met with silence by DHS. The department, having originally expressed indignation at the idea that it would separate children from their parents for any reason other than the child’s welfare, has been rendered speechless.

U.S. officials who interviewed Ms. L when she crossed the border made a preliminary finding that she had a plausible claim for asylum, based on her account of having fled what the lawsuit, filed by the American Civil Liberties Union, said was “near certain death” in Congo. Despite that, she was detained until the lawsuit and ensuing publicity prompted her sudden release last week.

In a class-action suit, the ACLU asserts that the Trump administration has separated children from their parents in more than 100 cases, even though the department says it does not “currently” have a policy on the matter. If it seems unthinkable that the administration and Homeland Security Secretary Kirstjen Nielsen would carry out a practice so cruel, one likely to inflict long-term harm on children, think again: DHS officials, including Ms. Nielsen’s predecessor, John F. Kelly, now the White House chief of staff, have said they believe it would be an effective means of deterring asylum seekers.

If DHS has subjected this small girl to trauma as a warning to other asylum seekers, it is an unconscionable means to an end. If that is not the reason, then what is?

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https://www.washingtonpost.com/local/immigration/aclu-sues-trump-administration-over-detaining-asylum-seekers/2018/03/15/aea245e2-27a2-11e8-bc72-077aa4dab9ef_story.html?utm_term=.470a39300b74

Here’s the always highly informative and very readable Post immigration reporter Maria Sacchetti with a summary of what the ACLU suit is all about:

“A lawsuit filed in U.S. District Court in Washington on Thursday alleges the Trump administration is illegally jailing asylum seekers with credible cases for months on end in an attempt to deter them and others from seeking refuge in the United States.

The American Civil Liberties Union and other groups filed the class-action lawsuit on behalf of nine detained asylum seekers from Haiti, Venezuela and other countries. They are asking a judge to order the administration to follow a 2009 policy that allows officials to release foreigners while they await their immigration court hearings, a process that can take years.

Among the plaintiffs are Ansly Damus, a 41-year-old ethics teacher who said he was attacked by a gang in Haiti that beat him, set his motorcycle ablaze and threatened to kill him for criticizing a politician. He won his asylum case — twice — but has spent 16 months in detention, most recently in Ohio, while the government appeals.

Other plaintiffs are Alexi Montes, an 18-year-old gay man harassed and beaten in Honduras and who has a relative in Virginia; Abelardo Asensio Callol, a 30-year-old software engineer from Cuba who refused to join the Communist Party or rally for the now-deceased Cuban leader Fidel Castro; and, an unnamed father of two from Mexico who said a drug cartel kidnapped his two brothers and threatened to kill him and his family.

All were initially deemed to have had credible stories and are entitled to a hearing before an immigration judge, lawyers said. While awaiting those hearings, they have been jailed for months.

“The fact that we are doing this to people . . . is really outrageous,” said Michael Tan, a New York-based staff attorney for the ACLU. “What they’re doing here is using detention to send a message that asylum seekers need not apply and they’re not welcome here in the United States.”

The legal challenge comes as the Trump administration engineers a wide-ranging review of the nation’s immigration policies and asylum fraud, which it blames in part for a backlog in the immigration courts of more than 600,000 cases, triple the number in 2009.

Attorney General Jeff Sessions said last year that the asylum system is being “gamed” by foreigners and “dirty immigration lawyers.” Instead of a lifeline to people in peril, he said, it had become an “easy ticket to illegal entry into the United States.”

The Justice Department has also said it wants to slash the immigration court docket of 600,000 cases in half by 2020.”

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

Read the rest of Maria’s article at the link.

Pretty predictable that there is a tie to Sessions’s bogus attack on vulnerable asylum seekers. He’s concealing how his mismanagement of the U.S. Immigration Courts, promotion of “Aimless Docket Reshuffling,” and biased legal views are in fact fueling the docket backlog.

Those actively engaged in oppression and covering up their own misdeeds always look for “scapegoats.” And asylum seekers, many of them scared women and children trying to save their lives, who already are treated with disrespect and lack of due process by our Immigration Court system and DHS are an easy target. Targeting the most vulnerable — that’s exactly what bullies and cowards do!

Pretty disgraceful! But, if we all unite behind the efforts of the New Due Process Army and fight for full Due Process for everyone in the United States in our Article III Courts, we can eventually force a stop to this Administration’s human rights abuses, end the “New American Gulag,” and derail the Sessions/DHS White Nationalist restrictionist program!

Due Process Forever!

PWS

03-16-18

STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

https://www.justsecurity.org/53822/trouble-undocumented-immigrants-suspension-clause/

Steve writes:

“Back in August 2016, I wrote a lengthy post about the Third Circuit’s decision in Castro v. Department of Homeland Security, which held that recently-arrived undocumented immigrants, who are physically but not lawfully within the territorial United States, are not protected by the Constitution’s Suspension Clause—and therefore have no right to judicial review of their detention (or removal). Among many other problems with the Third Circuit’s analysis (see my original post for more), it created the anomalous result that enemy combatants held at Guantánamo, who have never set foot on U.S. soil, have more of an entitlement to judicial review than Central American women and their minor children in immigration detention in the United States who are seeking asylum (the petitioners in Castro).

The one saving grace to Castro was that it was only the law of the Third Circuit—Delaware, New Jersey, Pennsylvania, and, yes, the U.S. Virgin Islands. But a new case flying almost entirely under the radar in the Ninth Circuit has raised the same issue, and, thus far, has produced results no different from Castro. As I explain in the brief post that follows, if the Ninth Circuit disagrees with the Third Circuit’s deeply problematic reasoning in Castro, and believes that undocumented immigrants seeking asylum have a right to meaningful judicial review of their asylum claim before their removal, it needs to stay the removal of Vijayakumar Thuraissigiam, and use his case to give plenary review to the jurisdictional (and constitutional) question.

Thuraissigiam is a Tamil from Sri Lanka who was tortured in his home country by individuals he has identified as government intelligence officers before fleeing and eventually attempting to enter the United States—surreptitiously—across the U.S.-Mexico border. He was apprehended shortly after crossing the border (on U.S. soil), and then issued an expedited removal order after the government determined (with no judicial review) that he didn’t have a credible fear of persecution if returned to Sri Lanka.

Thuraissigiam attempted to challenge his expedited removal (and the credible-fear determination) through a habeas petition, and also sought an emergency stay of removal pending the disposition of his habeas petition. On March 8, the district court dismissed the petition for lack of jurisdiction, holding that the unavailability of habeas for non-citizens subject to expedited removal did not violate the Suspension Clause, largely because of Castro, the “analysis and ultimate conclusion [of which] are incredibly persuasive to the Court.” And because the court lacked jurisdiction over Thuraissigiam’s habeas petition, it also denied his motion for an emergency stay of removal.

Thuraissigiam appealed to the Ninth Circuit and renewed his motion for an emergency stay of removal. On March 12, a two-judge motions panel (Silverman & Christen, JJ.) denied the motion without meaningful discussion, leaving intact the original appellate briefing schedule (which would have opening briefs due on May 8). Of course, it’s possible that, once the case is fully briefed and argued before a merits panel, the Ninth Circuit will have a full opportunity to consider Castro‘s many flaws—and to hold that the Suspension Clause requires meaningful judicial review of these kinds of asylum claims, even when brought by undocumented immigrants who surreptitiously enter the United States.

The problem is that the case may well be moot by then, as, without a stay of removal, Thuraissigiam could well be sent back to Sri Lanka in the interim. And although Thuraissigiam sought reconsideration en banc, the Ninth Circuit’s General Orders only require such requests to be referred to staff attorneys, not to the full court. So it was, late last night, that the two-judge panel noted that the motion for en banc reconsideration was “referred to the Court” and denied.

That leaves emergency relief from Justice Kennedy (or the full Supreme Court) as the only remaining means for Thuraissigiam to stay his removal pending the Ninth Circuit’s resolution of the merits. (The Ninth Circuit could also expedite its consideration of the merits to moot the need for a stay, but it hasn’t yet…) Unless such relief is granted, the Ninth Circuit may never have a proper opportunity to decide whether or not to follow the Third Circuit down Castro‘s rabbit hole. And without such a ruling, it stands to reason that there will be more cases like Thuraissigiam’s, in which Castro serves to practically foreclose review, even if it’s not the law of the relevant circuit.

That’s no way to run a railroad, especially when the result is to send individuals back to countries in which they very well may credibly fear persecution (or worse).

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The only thing I take issue with in Steve’s outstanding analysis is his statement in the last paragraph “That’s no way to run a railroad!”

No, that exactly how Jeff “Gonzo Apocalypto” Sessions wants to and is running the “Deportation Railroad.” He’d love to apply “expedited removal” with no due process and no review to everyone in the United States.

I figure that once he gets done “crashing” the U.S. Immigration Court system, he’ll be asking Congress for “Universal Summary Removal,” having proved that due process for foreign nationals, or those believed by DHS to be foreign nationals, is simply too convoluted and impractical. This ties in nicely with the Administration’s view that the Due Process clause protects only the U.S. Government and Administration political officials.

Disturbingly, to date, I can find little evidence that the Courts of Appeals or the majority of the Supremes care about what happens to asylum applicants at the border and whether they are imprisoned or railroaded while here and sent back to death or torture abroad. As long as nobody on the Court of Appeals or nobody that they care about or consider human is affected, the Constitutional problems appear to be “out of sight, out of mind.”

Now, that might be “No way to run a railroad.”

PWS

03-15-18

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

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

Here it is:

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

03-13-18

TAL @ CNN: ADVOCATES FEAR SESSIONS’S ACTIONS THREATEN ENTIRE U.S. ASYLUM SYSTEM!

http://www.cnn.com/2018/03/12/politics/sessions-immigrant-domestic-violence-victims/index.html

Sessions reviewing immigrant abuse victims’ protections

By Tal Kopan, CNN

Attorney General Jeff Sessions’ recent move to re-open a court decision protecting domestic violence victims has advocates concerned that women and children fleeing abuse in their home countries could no longer seek shelter in the US.

Sessions last week announced he was reviewing the immigration court decision without making public what the case was about. In a quirk of immigration court law, decisions by the appellate court, the Board of Immigration Appeals, are reviewable by the attorney general.

The previously unpublished decision has been obtained by CNN and advocacy groups, and the facts of the case has human rights advocates concerned Sessions could be moving to undercut domestic violence victims’ claims for protections in the US.

The issue is mired in the legal details of asylum — a type of protection for immigrants who come to the US fleeing persecution back home. There are a few categories that have to be proven in order to be granted asylum, including being part of a “particular social group” that has a reason to fear persecution and whose government can’t or won’t adequately protect them.

Sessions has asked for arguments on the case, known as the “Matter of AB-” based on the redacted name of the individual bringing the case, on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.”

Without knowing the underlying case, many experts had believed the issue related to gang violence — a major issue in Central America that pushes immigrants to try to enter the US illegally.

But though the case deals with a woman from gang violence-plagued El Salvador, the issue is instead her rape and physical and emotional abuse by her ex-husband. The Board of Immigration Appeals found in the case that the woman does qualify for asylum, as women in El Salvador with children in common are often unable to leave their relationships and the government has been found “minimally” able to stop domestic violence.

“We’re very concerned about what this could mean for the women who flee their homes, leaving everything behind — their community, parents, and children — in order to get to safety,” said Archi Pyati, chief of policy and programs for the Tahirih Justice Center, which protects and advocates for immigrant women and girls fleeing violence. “In some countries, the government will do nothing to stop a man from abusing a woman. …Right now, the attorney general is signaling that he may reconsider whether we as a nation are willing to stand up for what is right and offer a beacon of hope to those women with nowhere else to go.”

The Justice Department declined to comment on the case now that its details were released. Before it was obtained, a department official would only say that Sessions had referred the case to himself due to a “lack of clarity” in the court system on the subject of the Board of Immigration Appeals decision.

In 2014, the agency issued a similar decision for Guatemalan women in a case that set precedent for lower immigration courts.

Sessions’ decision to wade into the case has potentially far-reaching implications. As attorney general, he has the legal authority to single-handedly overturn the decision of the Board of Immigration Appeals. Once he does, the only authority who can overrule him are the federal appellate courts and Supreme Court, if an immigrant appeals their case to them.

If Sessions decides that victims of crime cannot qualify as a “particular social group,” hypothetically, it could mean foreign domestic violence victims are not able to seek protections from their abusive spouses in the US.

Sessions has alarmed advocates by referring himself two asylum cases in the past week. While he didn’t make a decision on the Matter of AB-, in the other case, he overruled the Board of Immigration Appeals on a decision that had determined all asylum cases are entitled to a hearing before their bid for protections is rejected. Sessions’ move means that asylum cases could now be rejected without those immigrants getting an opportunity to argue their case in court; judges can make decisions based on briefs.

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With each Sessions anti-immigrant, anti-asylum, anti-due-process action, the farce and charade of due process for migrants in the Sessions-controlled U.S. Immigration System becomes more pronounced. And, with the GOP in control of all three political branches of the Government, responsible oversight of Executive Branch actions and overreaching has simply ceased to exist. Yeah, the Article III courts are still out there. But, you can bet that Trump, Sessions, and the GOP Senators are doing their very best to co-opt the Federal Courts with appointees committed to an extreme right-wing agenda.

PWS

03-13-18

HON. JEFFREY CHASE ON MATTER OF E-F-H-L- — SESSIONS’S OUTRAGEOUS ATTTACK ON DUE PROCESS AND RIGHTS OF VULNERABLE ASYLUM SEEKERS SHOWS WHY COURT SYSTEM CONTROLLED BY BIASED A.G. IS A FARCE!

https://www.jeffreyschase.com/blog/2018/3/10/the-ags-strange-decision-in-matter-of-e-f-h-l-

Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-

On Monday, the Attorney General’s strange decision in Matter of E-F-H-L- had many of us talking well into the night. As background, the BIA published its precedent decision in Matter of E-F-H-L- in 2014. The case involved an immigration judge’s decision that an asylum applicant’s claim was not deserving of a merits hearing. Instead of a hearing at which he would have had the opportunity to testify, present witnesses, file documentary evidence, and present legal arguments, the immigration judge simply denied the case on the written application alone. On appeal, the BIA reached the obvious conclusion that all asylum applicants merit the right to a hearing, and remanded the record back to the immigration judge for that purpose.

Four years later (i.e. this past Monday), Attorney General Jeff Sessions unexpectedly inserted himself into the matter. It seems that by the time the record arrived back in immigration court, the respondent was now eligible to obtain lawful permanent residence based on a relative petition. As such petition is a far more certain and direct route to legal status, and carries greater benefits, the respondent followed the common practice of withdrawing his application for asylum in order to proceed on the visa petition alone. Furthermore, because USCIS (and not the immigration judge) has the authority to decide the visa petition, both the respondent and DHS agreed to administratively close proceedings in order to allow USCIS to adjudicate the petition (which often takes some time) without either having such effort delayed by removal proceedings, or wasting the court’s valuable time by holding unnecessary status-check hearings. Ordinarily, once the visa petition is decided one way or the other, the parties will move the immigration judge to recalendar the case.

However, such cooperation, efficiency, and consideration is apparently not to the AG’s liking. On Monday, he determined that because the matter was remanded for an asylum hearing, but the asylum application was subsequently withdrawn, the Board’s precedent guaranteeing asylum applicants the right to a hearing should for some reason be vacated. He further ordered an end to administrative closure, and that the case be placed back on the IJ’s active hearing calendar, where time and taxpayer money can be wasted on unnecessary hearings, which could possibly delay USCIS in adjudicating the visa petition.

So what does all of this mean? First, Sessions has now done away with a Board precedent decision entitling all asylum applicants to a full hearing. The Board’s original decision in E-F-H-L- cited regulations, statute, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, case law, and common sense in reaching such conclusion. The fact that years later, the respondent became eligible for another form of relief in no way negates the Board’s reasoned conclusion.

Additionally, the AG’s action might have a chilling effect on immigration judges. In the past, Attorneys General have certified cases to themselves where they disagreed with a decision reached by the Board. However, I don’t believe an AG has ever before followed a case years later all the way down to the immigration court level and chosen to certify a case because of an action taken by the immigration judge in the normal course of proceedings. Administratively closing a proceeding to allow USCIS to adjudicate a visa petition is standard procedure – DHS agreed to such action. Yet now, immigration judges have to worry that the AG is watching. How quickly will judges administratively close under the same circumstances, even if everyone agrees it is the correct thing to do?

Furthermore, as it is extremely unlikely that Sessions is reviewing every decision every immigration judge is making, someone – in DHS? In EOIR? – is signalling the AG’s office of cases such as this one. Although the immigration courts and BIA are supposed to be neutral, the playing field is not level when the respondent must appeal an unfavorable to the federal circuit courts, whereas DHS can simply ask the Attorney General to reverse a decision of which it disapproves.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

REPRINTED BY PERMISSION.

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How many innocent, vulnerable individuals will die or have their lives ruined by the travesty of justice unfolding under Jeff Sessions before Congress takes the necessary action to free the U.S. Immigration Courts from blatant and unwarranted political interference in decision-making?

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

PWS

03-12-18

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

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

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

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

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

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

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

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

America needs an independent Article I Immigration Court.

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

PWS

03-11–17

HATS OFF (ONCE AGAIN) TO THE “GOOD GUYS” — GW Law Clinic Saves More Lives In Gang-Related Case! — This Is What US Asylum Law Could & Should Be!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Dana Florkowski and her client, S-M, from El Salvador. This morning, after a three-hour hearing, immigration judge (IJ) Quynh Vu Bain granted the asylum application of S-M and her eighteen year-young daughter. The ICE trial attorney waived appeal so the grant is final. This was the fourth asylum grant won by the student-attorneys this semester. Fifteen lives have been saved.

S-M and her abuser met and lived together in the USA. After repeated beatings, rapes, and verbal abuse, S-M called the police, which lead to the abuser’s removal to El Salvador. After his return to El Salvador, the abuser and his brother, who have connections with the Mara 18 gang, threatened to kill S-M’s mother and daughter, who remained there, unless S-M rejoined him. Despite her concerns, S-M decided to return to El Salvador because, as she testified, “I would rather put my life at risk than my daughter’s.” S-M’s US citizen son, the son of her abuser, accompanied her to El Salvador. After her return, the beatings, rapes, and verbal abuse continued. S-M decided to flee El Salvador after the abuser threatened to kill her and turn her daughter over to the Mara 18 gang to be raped. Sadly, S-M and her daughter fled so quickly she had to leave behind her son. During this morning’s hearing, the IJ said she was troubled by S-M’s voluntary return to El Salvador. Dana explained that the return was not voluntary, and she cited the psychological evidence of the abuser’s control over S-M. The IJ concluded that S-M’s return to El Salvador was under duress. Now that S-M and her daughter are safe, the student-attorneys will work to reunite her son, now nine, with her.

Congratulations also to Alyssa Currier, Karoline Núñez, and Jonathan Bialosky, who previously worked on this case.

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

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Lots of good things at work here!

Great representation. Scholarly judging from Judge Bain (certainly how I remember her from Arlington). And, kudos to the DHS Assistant Chief Counsel in Arlington for waiving appeal when justice has been done. This is the way I remember the ICE OCC in Arlington — skilled litigators who properly required critical examination of all claims but also had an overall commitment to fairness, justice, and making the system work!

This is actually a “casebook study” of how the asylum system in Immigration Court is supposed to work. It still could work this way in many, perhaps eventually most, cases if Sessions and the politicos at DOJ would just get out of the way and let the Immigration Judges, respondents’ Counsel, and the DHS Assistant Chief Counsel do their jobs!

Thanks again to Professor Benitez and his team at GW and to all the other clinical, pro bono, “low bono,” and other counsel out there striving every day to see that our justice system actually delivers justice.

PWS

03-08-18

ANA COMPOY @ QUARTZ — WHILE YOU WERE SLEEPING, JEFF SESSIONS WAS HARD AT WORK DISMANTLING DUE PROCESS IN THE AMERICAN JUSTICE SYSTEM — We’re Headed For a Monumental Train Wreck In The “REAL” Article III Courts As Sessions Tries To Force “Kangaroo Court” Work Product Down Their Throats (Again) — I’m Quoted In This Article

https://qz.com/1223294/jeff-sessions-is-quietly-remaking-the-us-immigration-system/

It’s been a busy week for Jeff Sessions. The US attorney general is deploying his broad powers to remake the US’s immigration system instead of waiting for Congress to pass legislation.
Late Tuesday, he filed a lawsuit against the state of California, for its policies limiting cooperation between state officers and federal immigration agents. “Federal law is the supreme law of the land,” he said in a speech in Sacramento on Wednesday.
Far more quietly, on Monday, Sessions took the unusual step of digging up an old legal decision that affirmed asylum-seekers’ right to a make their case in court—and cancelled it. That little-noticed move has the potential of doing more to further Trump’s efforts to deport undocumented immigrants than his attack on so-called sanctuary jurisdictions like California.

Sessions’s choice to revisit the four-year-old case on Monday was not explained in his three-paragraph announcement. A Justice Department spokesperson tells Quartz that the decision which Session overruled had “added unnecessary cases to the dockets of immigration judges, who are working hard to reduce an already large immigration court backlog.”
The mountain of pending immigration cases, which now stands at nearly 670,000, has emerged as a major bottleneck for Trump’s administration. Regardless of their legal status, many immigrants are entitled to a day in court under the law. With US immigration courts chronically understaffed, that can take years. Many applications will likely be processed more quickly—and denied—if asylum-seekers aren’t given the chance to argue their case.
The Matter of E-F-H-L

As head of the Department of Justice, Sessions oversees the country’s immigration courts, and the Board of Immigration Appeals (BIA,) where parties can contest immigration judge decisions. Unlike federal or state courts, the immigration court system is not part of an independent judicial branch, but embedded within a president’s administration.

Critics—including many immigration judges—say that setup makes the court system vulnerable to political interference, and there’s evidence that both Democratic and Republican administrations have done that to further their goals.
Among the attorney general’s powers is the ability to single-handedly overwrite any decisions by the BIA, as Sessions did on Monday. The decision he is zeroing in on is related to a case dubbed “Matter of E-F-H-L,” after the initials of the person who brought it to the appellate body. E-F-H-L, a Honduran immigrant, requested asylum. He appeared before an immigration court, but didn’t get a chance to testify because the judge determined E-F-H-L had no chance of getting asylum based on his application.
E-F-H-L appealed the decision to the BIA, which found that the judge had dismissed the case prematurely. An asylum applicant, it said in its decision, “is entitled to a hearing on the merits of the applications, including an opportunity to provide oral testimony and other evidence.” By striking it, Sessions is signaling that giving asylum seekers that chance is no longer required.
Paul Schmidt, a former immigration judge, says it’s important to hear out asylum applicants even if their case doesn’t look very solid on paper. Many of them—around 20% whose cases were decided in fiscal 2017—don’t have a lawyer, and are not familiar with the kind of information that should be included in the application. Others don’t even speak English. “You can’t always tell how the case is coming out just by looking at the application,” he said.
But another retired immigration judge, Andrew Arthur, welcomed the apparent change. “Given the fact that an asylum merits case can take anywhere between two hours and several days, this authority will allow those judges to streamline their dockets and complete more cases in a timely manner,” he wrote in a post for the Center for Immigration Studies, a think tank that advocates for reducing undocumented immigration.
Sessions’s decision also appears to target the asylum system in particular, which he’s said is being gamed by people with false claims. The precedent it sets is bound to make it more difficult for asylum seekers to make their case.
Administrative closure

Sessions’s sudden interest in E-F-H-L also appears to be related to a tool immigration judges often use referred to as “administrative closure.” That’s when a judge decides to put a case on the back burner instead of immediately deciding whether a person can stay in the US or should be deported.
There are several reasons why judges might delay a case’s decision. Sometimes rescheduling helps them organize their crowded docket; other times an immigrant may be in the middle of a visa application with US Citizen and Immigration Services, in which case it makes sense to wait until that process is completed, says Lenni Benson, a professor at New York Law School.
That appears to have been E-F-H-L’s case. In its decision, the BIA ordered the judge to give E-F-H-L a proper hearing, but by that time, he had applied for a family-based visa and didn’t want to follow through on his asylum claim. So the judge put the case in administrative closure. In his Monday decision, Sessions argued that since the immigrant is no longer applying for asylum, his case should be put back on the docket and resolved.
It seems odd that the head of the Justice Department would make time in his busy schedule to single out an obscure four-year-old case. But Benson says it fits within a broader effort to remove judges’ ability to put a case on hold.
Earlier this year, Sessions used his authority to pluck another case, this one involving a Guatemalan minor, to question the use of administrative closure. He is currently asking for input before taking any action, however. (Several groups, including the Safe Passage Project, a non-profit where Benson runs a program to train pro bono lawyers to represent immigrant youth, have filed a brief advocating for Sessions to keep the practice.)
If he doesn’t, the group of affected immigrants would be much broader than just asylum seekers. The use of administrative closure expanded during the Obama presidency. Because that administration’s focus was on criminals, the cases of many undocumented immigrants with a clean record became lower priorities. Administrative closure essentially took those immigrants off the list of deportation targets, even if their legal status remained unchanged.
The Trump administration, however, has made it clear it’s going after everyone who is in the country illegally. With efforts to change immigration law stalled in Congress, Sessions appears to be doing everything he can administratively to carry out Donald Trump’s vision.

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As Judge Arthur acknowledges, a “real” Due Process asylum merits hearing takes from two hours to two days — a big deal. So, his solution is to eliminate the hearing and thereby the respondent’s only chance to fully present her or his case.

Even if the respondent loses before the Immigration Judge, he or she is entitled to an appeal to the BIA and review in the Court of Appeals. Sometimes the BIA and more often the Circuit Courts disagree with the legal standards applied by the Immigration Judge. How does a respondent make a showing of what evidence supports his or her claim if not allowed to testify on that claim?

Haste makes waste. During the Ashcroft regime, there DOJ also attempted to short-circuit Due Process by “streamlining” cases, primarily at the BIA level. The result, as I have noted before, was a tremendous mess in the Circuit Courts, as court after court found that the records sent to them for review were rife with legal errors, incomplete, inadequate, or all three.

The result was tons of remands that essentially tied up large portions of the Federal Court System as well as the DOJ on cases that were “Not Quite Ready For Prime Time.” However, many individuals who did not have the resources to appeal their cases all the way to the Circuit Courts were illegally removed from the US without receiving the fair hearings guaranteed by statute or the Due Process guaranteed by our Constitution.

Sessions, with the encouragement of folks like Judge Arthur, seems to be determined to repeat this grotesque abuse of American justice. However, this time there is a “New Due Process Army” out there with some of the top legal minds in the country prepared to fight to stop Sessions and his cohorts from violating the Constitution, our statutes, our values, and the rights of the most vulnerable among us.

Harm to one is harm to all!

PWS

05-08-18

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

3918

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

Matter of A-B-, Respondent

Decided by Attorney General March 7, 2018

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

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

BEFORE THE ATTORNEY GENERAL

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

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

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

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

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

227

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

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

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

PWS

03-07-18

WHEN EVERYTHING & EVERYBODY IS A PRIORITY, THERE ARE NO PRIORITIES — WHAT “GONZO” IMMIGRATION ENFORCEMENT IS REALLY ABOUT!

At CNN, the “Amazing Tal” has it all for you:

Happy Friday!
Hope you’re battening down the hatches during this Nor’easter.
You may have already seen, but wanted to send you my latest story this morning, a deep dive into immigration arrests.
Have a great weekend and stay safe!
Tal

http://www.cnn.com/2018/03/02/politics/ice-immigration-deportations/index.html

How Trump changed the rules to arrest more non-criminal immigrants
By Tal Kopan, CNN
A businessman and father from Ohio. An Arizona mother. The Indiana husband of a Trump supporter. They were unassuming members of their community, parents of US citizens and undocumented. And they were deported by the Trump administration.
It’s left many wondering why the US government is arresting and deporting a number of individuals who have often lived in the country for decades, checked in regularly with immigration officials and posed no danger to their community. Many have family members who are American citizens, including school-aged children.
President Donald Trump famously said in a presidential debate that his focus is getting the “bad hombres” and the “bad, bad people” out first to secure the border, but one of his first actions after taking office was an executive order that effectively granted immigration agents the authority to arrest and detain any undocumented immigrant they wanted.
Where the Obama administration focused deportation efforts almost exclusively on criminals and national security threats, as well as immigrants who recently arrived illegally, the Trump administration has also targeted immigrants with what are called final orders of removal — an order from a judge that a person can be deported and has no more appeals left.
In Trump’s first year, US Immigration and Customs Enforcement arrested 109,000 criminals and 46,000 people without criminal records — a 171% increase in the number of non-criminal individuals arrested over 2016.
The Trump administration regularly says its focus is criminals and safety threats, but has also repeatedly made clear that no one in the country illegally will be exempted from enforcement.
“We target criminal aliens, but we’re not going to exempt an entire class of (non)citizens,” Department of Homeland Security spokesman Tyler Houlton told reporters Wednesday.
“All of those in violation of immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States,” ICE spokeswoman Sarah Rodriguez added in a statement.
Critics say including people with decades-old final orders of removal as priorities is more about boosting numbers by targeting easily catchable individuals than about public safety threats.
“A final order of removal is absolutely not indicative of a person’s threat to public safety,” said former Obama administration ICE chief and DHS counsel John Sandweg. “You cannot equate convicted criminals with final orders of removal.”
Sandweg said that people with final orders, especially those who are checking in regularly with ICE, are easy to locate and can be immediately deported without much legal recourse. Identifying and locating criminals and gang members takes more investigative work.
There are more than 90,000 people on so-called orders of supervision who check in regularly with ICE officials, according to the agency. And there are more than 1 million who have removal proceedings pending or who have been ordered to leave the country but have not.
As a result of the change in ICE policy, headlines about heart-wrenching cases of deportation separating children from parents or caregivers have been a regular occurrence.
The story of Amer Adi, an Ohio businessman who lived in the US nearly 40 years, and has a wife and four daughters who are all American citizens, drew national media coverage last month. Through a complicated dispute about his first marriage, Adi lost his status and was ordered deported in 2009, but ICE never opted to remove him from the country. His congressman even introduced a bill to protect Adi, saying he was a “pillar” of the community, but last fall, ICE told Adi to prepare to be deported.
At a check-in on January 15, he was taken into custody and not allowed to see his family before being put on a plane back to his home country of Jordan on January 30.
“We shouldn’t spend one penny on low-hanging fruit,” said Sarah Saldana, the most recent director of ICE before Trump’s inauguration. “What we should be spending money is on getting people who are truly a threat to public safety.”

‘ICE fugitives’
The Trump administration has subtly blurred the distinction between criminals and those with final orders of removal, which is a civil, not criminal charge.
ICE has combined “ICE fugitives” — people who have been ordered to leave the country but haven’t yet — with convicted criminals who have pending criminal charges and reinstated final orders of removal, allowing the agency to say 92% of those arrested under Trump had criminal convictions or one of the other factors — when the number with criminal records is closer to 70%.
With an estimated 11 million undocumented immigrants in the US, ICE has typically had resources to arrest and deport only roughly 150,000-250,000 individuals per year — requiring the agency to make choices about who to prioritize to proactively seek out for arrest.
ICE says its mission is carrying out the law and that it “must” deport these individuals.
“The immigration laws of the United States allow an alien to pursue relief from removal; however, once they have exhausted all due process and appeals, they remain subject to a final order of removal from an immigration judge and that order must be carried out,” said Rodriguez. “Failing to carry out final orders of removal would be inconsistent with the entire federal framework of immigration enforcement established by Congress, and undermine the integrity of the US immigration system.”
Administration officials also argue the publicizing of these cases sends a message to would-be border crossers that undocumented immigrants are never safe in the US, even when sympathetic.
“If we don’t fix these loopholes, we’re going to entice others to make that dangerous journey,” ICE Director Tom Homan told the President at a roundtable earlier last month. “So it’s just not about law enforcement, it’s about saving lives.”

Limited resources
But Saldana and other former immigration officials question the prudence of going after that population indiscriminately, saying it diverts resources from more serious security concerns.
If 20 officers are assigned to identify targets with final orders, “those are 20 officers who won’t be out focused on finding gang members or criminals,” said Bo Cooper, a career official who served as general counsel of ICE’s predecessor, the Immigration and Naturalization Service, under Presidents Bill Clinton and George W. Bush.
“When there are a finite amount of resources, choices you make come at the expense of other choices,” Cooper said. “It really is a significant policy choice.”
Sandweg said the Obama administration in 2014 changed its priorities to move away from those with old removal orders in order to give itself more resources to pick up targets from jails, which can be hours away from ICE offices, when they get word that a criminal could be detained on immigration charges.
Sandweg and Cooper noted that other law enforcement agencies also prioritize — the Drug Enforcement Administration doesn’t bother with low-level marijuana possession, but focuses on cartels, Sandweg said — and it’s a part of agency culture.
“Setting enforcement priorities is not micromanagement, that’s what every law enforcement agency does,” agreed Cooper.
As for whether ICE was handcuffed during the Obama era, Saldana said that even in Trump’s executive order, there is room for discretion.
“That’s silly,” Saldana said. “Can you imagine having 11, 12 million in the system? The cost would be extraordinary, so you have to make priorities and work that way. … You can’t sweep everybody into one category. Not everyone is a contributor to society, and not everyone is a criminal.”

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Homan’s shtick about “saving lives” is as preposterous as it is insulting! The “dangers” of seeking to come to the US actually are well known by those making the journey. Whether they are educated or not, they are smart, brave, resourceful people — the kinds of folks we actually could use more of in America.

What Homan and others (including some of the jurists at all levels hearing these cases and getting the results wrong) fail to recognize is that the dangers of remaining in failed states controlled by gangs and corrupt politicos is much greater than the dangers of the journey and the chance of being returned. That being the case, folks have been coming and will continue to come, no matter how nasty and arbitrary we are and no matter how much we mock our Constitution, our own laws on asylum and protection, and the international standards to which we claim adherence.

Too many of those being returned were denied relief under arcane legal standards even when the judges hearing the cases acknowledged that they had established a likelihood of persecution or death upon return. But, they failed to show a “nexus to a protected ground” or “government acquiescence” as those terms are often intentionally restrictively defined by the BIA and some courts.

I know that I had such cases, and I can’t say as anyone ever understood why I was sending them back to possible severe harm or death. Homan and others like him don’t actually have to pronounce such judgments on other human beings face to face as do U.S. Immigration Judges. Neither do the Appellate Immigration Judges sitting in the “BIA Tower” in Falls Church, VA for that matter!

But, the DHS always has discretion as to whether to execute such an order. How on earth does sending productive members of our society and others who have committed no crimes back to be killed, extorted, raped, or forced to join gangs “save lives.” What total hypocrisy!

Indeed, the only “message” we’re actually sending to such folks is that they might as well join the gangs because their lives don’t matter to us. There will be a reckoning for such attitudes for Homan and others some day, even if its only that the judgement of history and the shame of future generations for their lack of empathy, intellectual honesty, common sense, and humanity!

We can diminish ourselves as a nation, but that won‘t stop human migration!

PWS

03-03-18

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

LAUREN MARKHAM IN THE NEW REPUBLIC: Why “Trumpism” Ultimately Will Fail – Those Ignorant of Human History & Unwilling To Learn From It Will Just Keep Repeating The Same Expensive Mistakes – “One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. . . . The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.”

https://newrepublic.com/article/146919/this-route-doesnt-exist-map

“How efforts to block refugees and asylum-seekers from Europe have only made the global migration crisis more complex and harrowing

By LAUREN MARKHAM

February 26, 2018

By 7 p.m., the sun had set and groups of young men had begun to gather inside a small, nameless restaurant on a narrow street in Tapachula, Mexico. Anywhere else in the city, a hub of transit and commerce about ten miles north of the Guatemalan border, there would be no mistaking that you were in Latin America: The open colonial plaza, with its splaying palms and marimba players, men with megaphones announcing Jesus, and women hawking woven trinkets and small bags of cut fruit suggested as much. But inside the restaurant, the atmosphere was markedly different. The patrons hailed not from Mexico or points due south but from other far-flung and unexpected corners of the globe—India, Pakistan, Eritrea, Cameroon, Sierra Leone, Congo. Men, and all of the diners were men, gathered around tables, eating not Mexican or Central American fare but steaming plates of beef curry, yellow lentils, and blistered rounds of chapati. The restaurant’s proprietor, a stern, stocky Bangladeshi man in his thirties named Sadek, circulated among the diners. He stopped at one table of South Asian men and spoke to them in Hindi about how much they owed him for the items he’d collected on their tab. The waitress, patiently taking orders and maneuvering among the crowds of men, was the only Spanish speaker in the room.

Outside, dozens of other such men, travelers from around the world, mingled on the avenue. They reclined against the walls of restaurants and smoked cigarettes on the street-side balconies of cheap hotels. They’d all recently crossed into the country from Guatemala, and most had, until recently, been held in Tapachula’s migrant detention center, Siglo XXI. Just released, they had congregated in this packed migrants’ quarter as they prepared to continue their journeys out of Mexico and into the United States. They had traveled a great distance already: a transatlantic journey by airplane or ship to Brazil; by car, bus, or on foot to Peru, Ecuador, and Colombia; through Panama, Costa Rica, and Nicaragua; on to Honduras, Guatemala, and into Mexico. Again and again, I heard their itinerary repeated in an almost metronomic cadence, each country a link in a daunting, dangerous chain. They’d crossed oceans and continents; slogged through jungles and city slums; braved detention centers and robberies; and they were now, after many months, or even longer, tantalizingly close to their final goal of the United States and refugee status.

Police in Tapachula, a Mexican city used as a waypoint for migrants known as *extra-continentales*, patrol past a Cameroonian traveler (in a striped shirt).

They are the extreme outliers of a global migration crisis of enormous scale. Today, more than 65 million people around the world have been forced from their homes—a higher number than ever recorded, as people flee war, political upheaval, extreme poverty, natural disasters, and the impacts of climate change. Since 2014, nearly 2 million migrants have crossed into Europe by sea, typically landing in Italy or Greece. They hail from dozens of countries, but most are from Syria, Afghanistan, Iraq, and Nigeria—countries struggling with war, political repression, climate change, and endemic poverty.

Their passage to supposed safety, which takes them across Libya and the Sinai, as well as the Mediterranean, has become increasingly perilous. According to the United Nations High Commissioner for Refugees, nearly 150,000 people crossed the Mediterranean in 2017. More than 3,000 are believed to have drowned. Stories of detention in Libya, as well as physical and sexual abuse, are commonplace among those who manage to make it to Europe. A recent CNN report depicted a Libyan slave auction, where people were being sold for as little as $400. Even the lucky ones who wash up on Europe’s shores may end up stuck for years in transit camps and detention centers in the south of the continent, in some cases only in the end to be deported. In 2013, in an effort to curb migration and ease the burden of migrants within its borders, the European Union began ramping up deportations. In 2016, nearly 500,000 people were deported from Europe.

Globally, more than 65 million people have currently been forced from their homes—a higher number than ever recorded.

While the global drivers of migration have not subsided—devastation in Syria and Afghanistan, political repression in parts of sub-Saharan Africa—200,000 fewer migrants attempted to cross into Europe in 2017 than the year before. In response to the migrant crisis, European countries have sent strong messages that newcomers are no longer welcome; they’ve built fences to stop refugees from crossing their borders and elected far-right politicians with staunchly anti-immigrant messages. Meanwhile, most asylum cases are stalled in overburdened court systems, with slim prospects for any near-term resolution, which leaves many migrants stuck in the wicked limbo of a squalid, under-resourced refugee camp or austere detention facility. Today, European authorities have stiffened their resistance not only to new arrivals, but to the hundreds of thousands of asylum-seekers who arrived years before and remain in an eerie liminal zone: forbidden to live or work freely in Europe and unwilling, or often unable, to go home.

Because of the high risks of crossing and the low odds of being permitted to stay, more and more would-be asylum-seekers are now forgoing Europe, choosing instead to chance the journey through the Americas that brings them to Sadek’s restaurant in Tapachula. Each year, thousands of migrants from the Middle East, Africa, and Asia make their way to South America and then move northward, bound for the United States—and their numbers have been increasing steadily. It’s impossible to know how many migrants from outside the Americas begin the journey and do not make it to the United States, or how many make it to the country and slip through undetected. But the number of “irregular migrants”—they’re called extra-continentales in Tapachula—apprehended on the U.S. side of the border with Mexico has tripled since 2010.

They remain a tiny fraction of the hundreds of thousands of Mexicans and Central Americans crossing into the United States. But it is a hastening trickle that may well become a flood. “These ‘extra-continental’ migrants will probably increase,” said Roeland De Wilde, chief of mission for the International Organization for Migrationin Costa Rica, “given the increased difficulties in entering Europe, relative ease of entry in some South American countries, and smugglers’ increased organization across continents.”

A migrant from Bangladesh, Sadek (in a red shirt) is part restaurateur, part migratory middleman. He can help a traveler with a good meal—or a good travel agent or immigration attorney.

One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. All Europe has done is redirect the flow of vulnerable humanity, fostering the development of a global superhighway to move people over this great distance. The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.

“Cette route,” a French-speaking man from Cameroon told me, one sweltering afternoon in Tapachula on the breezeless balcony of a hotel frequented by irregular migrants, “n’existe pas sur le map.” This route doesn’t exist on the map.”

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Read Lauren’s much longer complete article at the above link. It’s one of the most incisive treatments of the worldwide migration phenomenon that I have seen recently. I highly recommend it.

Thanks to dedicated “Courtsider” Roxanne Lea Fantl of Richmond, VA for sending this item my way!

Shortly after I arrived at the Arlington Immigration Court, one of my wonderful colleagues told me “Paul, desperate people do desperate things. Don’t take it personally, and don’t blame them. We just do our jobs, as best we can under the circumstances.” Good advice, to be sure!

We can diminish ourselves as a nation, but that won’t stop human migration!

PWS

03-02-18

Category: Well-Founded Fear

WASHPOST: MICHAEL E. MILLER & JON GERBERG REPORT — Nation Of Shame — How The Trump Administration Stomps On The Human Rights Of The Most Vulnerable Refugees Every Day!

Due Process Forever!

FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

SANTA CLARA OFFICE

SAN FRANCISCO OFFICE

https://www.washingtonpost.com/opinions/why-was-a-7-year-old-separated-from-her-mother-for-four-months-dhs-wont-say/2018/03/15/7d0dc09a-27a4-11e8-bc72-077aa4dab9ef_story.html?utm_term=.e726c83aab19

Why was a 7-year-old separated from her mother for four months? DHS won’t say.

STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

HON. JEFFREY CHASE ON MATTER OF E-F-H-L- — SESSIONS’S OUTRAGEOUS ATTTACK ON DUE PROCESS AND RIGHTS OF VULNERABLE ASYLUM SEEKERS SHOWS WHY COURT SYSTEM CONTROLLED BY BIASED A.G. IS A FARCE!

Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-

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

WHEN EVERYTHING & EVERYBODY IS A PRIORITY, THERE ARE NO PRIORITIES — WHAT “GONZO” IMMIGRATION ENFORCEMENT IS REALLY ABOUT!

We can diminish ourselves as a nation, but that won‘t stop human migration!

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://newrepublic.com/article/146919/this-route-doesnt-exist-map

“How efforts to block refugees and asylum-seekers from Europe have only made the global migration crisis more complex and harrowing

February 26, 2018

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

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

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

DUE PROCESS FOREVER!

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Due Process Forever!

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FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

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Why was a 7-year-old separated from her mother for four months? DHS won’t say.

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

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Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-

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

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

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Harm to one is harm to all!

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We can diminish ourselves as a nation, but that won‘t stop human migration!

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