SANE & HUMANE SOUTHERN BORDER POLICIES: Meissner, De Pena, Clemons, Schmidt With Practical Solutions That Would Control The Border & Treat Asylum Seekers Fairly!

https://www.motherjones.com/politics/2019/05/what-would-it-actually-take-to-fix-the-asylum-system/

Doris M. Meissner, Senior Fellow, Migration Policy Institute

Me

Kristie De Pena, Director of Immigration, Niskanen Center

Michael Clemons, Senior Fellow, Center for Global Development

Noah Lanard, Reporter, Mother Jones

Noah Lanard reports in Mother Jones:

In April 2018, the Department of Homeland Security began using a new word to describe the situation at the southern border: crisis. The number of parents and children crossing the border to seek protection under US asylum laws was climbing to nearly 10,000 per month, up from barely a thousand at the start of the Trump administration. Trump did everything in his power to stop families from coming. He deployed the military to the border, separated parents from children, turned away asylum seekers at official border crossings, and then tried to make it illegal to request asylum unless people went to those crossings.

Nothing worked. More than 58,000 parents and children traveling togethercrossed the border last month, the seventh record-high in eight months. DHS officials have upped their hyperbolic rhetoric, saying that the immigration system is “on fire” and in “meltdown.”

At first, Democrats dismissed Trump’s fearmongering on immigration by pointing out that the total number of border crossers was still near historic lows. But as the number of parents and children coming to the border continues to skyrocket and the backlog of asylum seekers awaiting court hearings swells, it’s becoming clear to people across the political spectrum that doing nothing is not an option. Solutions are needed—the question is, what do they look like?

Mother Jones interviewed a half-dozen immigration experts from the left and center to see how they would create a fairer, more efficient, more humanitarian system for asylum seekers. Here’s what they recommend.

1. Hire more immigration judges

A backlog of nearly 900,000 asylum cases means that families seeking asylum often spend years living in the United States before their cases are decided by immigration judges. Most asylum seekers from El Salvador, Guatemala, and Honduras have not won their cases in recent years, and it’s even harder now that the Trump administration has limited protections for victims of gang and domestic violence, the most common forms of persecution in these “Northern Triangle” countries. Many of those who receive deportation orders, either because they lost their case or they did not apply for asylum after being released at the border, remain in the country as undocumented immigrants.

The backlog, combined with ICE’s limited ability to find people who don’t comply with removal orders, creates the accurate perception among migrants that families who turn themselves in to border agents are highly unlikely to be quickly deported. That presents an incentive for families unlikely to win asylum to cross the border anyway. More than 260,000 parents and children crossed the southern border between the 2016 and 2018 fiscal years. ICE deported about 7,000 family members during that period.

Trump has increased the number of immigration judges from 289 in 2016 to 435. But the backlog has been increasing by more than 100,000 cases per year,faster than under Barack Obama. That’s partly because of the surge in asylum claims but also because indiscriminate immigration enforcement has led to a dramatic increase in arrests of immigrants without criminal histories and forced judges to reopen cases they had set aside. The president is asking to fund 100 new judges in his 2020 budget, while Democrats have called for hiring at least 300 judges over four years.

Those numbers of hires would barely put a dent in the backlog in the short term. That’s why some experts think the administration should bring entire new classes of judges into the fold. Paul Schmidt, who served as an immigration judge from 2003 to 2016, suggests training retired state judges to handle bond and scheduling hearings so that judges have more time to handle asylum decisions. Kristie De Peña, director of immigration at the center-right Niskanen Center, proposes appointing emergency judges to decide asylum cases, and says that to assuage concerns about the Trump administration’s hiring, these judges could be selected by groups such as the American Bar Association and signed off on by governors. 

2. Process asylum claims more efficiently

While serving as Bill Clinton’s top immigration official in the 1990s, Doris Meissner eliminated a similar asylum backlog with a series of technical fixes. Previously, asylum seekers were eligible for work permits immediately, even if their cases wouldn’t be resolved for years, giving people with weak asylum cases an incentive to come to the United States and start working. To remove that incentive, Meissner imposed a six-month waiting period before asylum seekers were eligible for work permits and made sure that nearly all cases were decided within six months. The number of new asylum applications fell by more than half within a year, and the share of claims that were approved eventually more than doubled.

Meissner, now a senior fellow at the Migration Policy Institute, proposes another change that could have a huge impact on the backlog: letting asylum officers, not immigration judges, make the initial decisions in asylum cases.

Those officers already decide many asylum cases—for people who weren’t stopped at the border—and conduct all the “credible fear” interviews that determine whether asylum seekers have a strong enough case to go before an immigration judge. If officers took the place of immigration judges in asylum cases, migrants arriving at the border with strong claims would have their asylum approved more quickly, allowing them to bring their families to the United States rather than waiting years for a hearing before being allowed to bring relatives. Those with weaker claims, sensing that they’d be denied quickly and deported, might skip the trip and avoid taking on massive debts in a futile attempt to win asylum.

Another solution that could spare asylum seekers a long and uncertain trip to the United States and cut down on the backlog would be letting Central Americans apply for refugee status from their home countries. The Obama administration started a program along these lines, but the Trump administration quickly ended it. Democrats are calling for bringing back an expanded version so people have an alternative to traveling to the border.

Schmidt also thinks attorneys should be provided to asylum seekers so they’re informed of their legal rights and cases run more smoothly. The problem for the Trump administration, he says, is that fairer hearings would likely lead to more people winning their cases. Instead of running an effective asylum system, the Trump administration practices what Schmidt calls “malicious incompetence,” a noxious mix of bureaucratic dysfunction and intentional undermining of legal protections for asylum seekers. “If you had a competent administration willing to put the money in the right places,” he says, “you could solve this problem, and it wouldn’t cost as much as all the stuff they’re doing now.”

3. Consider alternatives to family detention

There’s no issue where the government and immigrant advocates differ more sharply than immigrant detention. The vast majority of families are quickly released at the border because of detention capacity constraints and the Trump administration’s recognition that short-term detention doesn’t do much to deter immigration. Under both Obama and Trump, DHS has sought to detain families for longer than the current legal limit of about 20 days and quickly deport them if they lose their cases.

Indefinite family detention is a nonstarter for immigrant advocates, who point to the government’s abysmal track record on immigration detention, the traumatic impact detention can have on children, and the challenges of fighting cases from behind bars. Immigrant advocates and Democrats in Congress oppose all family detention, preferring to release immigrants and track them with ankle monitors and check-ins with case workers.

De Peña is trying to find a middle ground. She proposes a solution that would avoid prolonged detention and the quick releasing of families at the border,while taking advantage of a move Trump already made. Trump has cut refugee admissions to record lows, forcing resettlement agencies to close offices and lay people off. De Peña wants to bring some work back to these agencies by having the government contract with them to house families seeking asylum. Under her plan, the families would be located in proximity to one another and have access to schools, medical facilities, and lawyers. They could move about freely, though they’d be monitored with ankle bracelets, as they often are now. That way, families seeking asylum wouldn’t be locked up like criminals, but they would also be less likely to disappear into undocumented life in American cities.

4. Send foreign aid—but don’t rely on it

Almost everyone in both parties supports sending foreign aid to Central America.Senate Democrats’ border plan, which was first introduced in October, provides $3 billion in aid to address the “root causes” of migration from the Northern Triangle, specifically poverty and violence. The outlier is Trump, who is moving to cut off aid to Central America despite his own acting DHS secretary’s support for that assistance.

But that foreign aid is not likely to be a quick fix. Michael Clemens, a senior fellow at the Center for Global Development, and researcher Hannah Postel concluded in a 2018 article that the chance of deterring migration through development assistance is “weak at best.” To greatly impact migration, theyfound, aid would have to work in “unprecedented ways” over multiple generations. There is some evidence that security assistance for neighborhood-level programs such as community policing can reduce migration, but economic aid could actually have the opposite effect, boosting migration from the poorest areas of the Northern Triangle by giving people the resources needed to reach the border. Clemens considers Trump’s decision to cut off aid “vacuous and nihilistic,” but he believes foreign aid mostly gets as much attention as it does because it’s a “political winner”not an actual short- or medium-term solution to the migration challenge. 

5. Open up economic visas

People are leaving the Northern Triangle to escape intense gang violence, find jobs, or reunite with relatives—often all three. The problem is that economic and family concerns aren’t valid grounds for asylum, but asylum is essentially the only way for most Central Americans to come to the United States legally. (The State Department rejects nearly all tourist visa applications from low-income Central Americans, worried that they’ll overstay their visas.) But asylum doesn’t have to be the only path into the United States.

 Last year, the Department of Labor approved nearly 400,000 guest workers recruited by US employers to work in agriculture and other seasonal industries. The vast majority of the temporary work visas have gone to Mexicans, many of whom have longstanding relationships with specific employers. The United States could easily require or encourage employers to hire more Central Americans. Clemens calls this the “lowest-hanging fruit” for accommodating people whose countries are passing through the same phase of economic development that caused migrants to come to the United States from everywhere from Sweden to South Korea in previous generations.

Opening up more visas for Central Americans wouldn’t require legislation and could be done “literally next month,” Clemens says. And given that Trump and his family already employ many of these guest workers, he says, “they know all about it.”

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These problems can be solved. But, not by “malicious incompetence.”

The biggest and most critical statutory change has nothing at all to do with “closing” bogus “loopholes” in asylum law that have been invented to further the White Nationalist narrative.

If I could make just one statutory change, it would be an independent Article I Immigration Court. Over time, a “real” court would establish a fair and efficient administration of the existing asylum laws and would hold the Government accountable for violating and ignoring those laws.

A border control system focused on administering asylum laws, rather than avoiding, flouting, or intentionally misinterpreting them, would look much different and undoubtedly would produce different results. That, in turn, would force the Government to establish and carry out real border law enforcement, rather than just targeting asylum seekers. Without a credible independent Immigration Court system to insure the integrity of the law, no statutory change in immigration law will be fully effective.

PWS

05-29-19

 

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAYS BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS NEW DUE PROCESS ARMY

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the worlds best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called courtsin places where no legal services are available, using a variety of largely untrained judges,themselves operating on moronic and unethical production quotas,many appearing by poorly functioning and inadequate televideo? Would a real court system put out a fact sheetof blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of justice on a deportation railroaddesigned to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally hostile environmentfor migrants and their attorneys.

This hostility particularly targets the most vulnerable among us asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years failed policies that we now are mindlessly doubling downupon.

My friends have given you the law.  Now, Im going to give you the facts.Lets go over to the seamy underside of reality,where the war for due process and the survival of democracy is being fought out every day. Because we cant really view the travesty taking place at the BIA as an isolated incident. Its part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in todays weaponized”  Immigration Courts.

I, of course, hold harmless the FBA, the Burmanator,my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, Its me baby, with your wake-up call.

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic dumbed downregime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the realArticle III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the crapshoot worldof todays BIA, you might win.

After the Ashcroft Purge of 03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, a facade of quasi-judicial independence.But, amazingly, it has gotten even worse since then. The facadehas now become a farce” – “judicial dark comedyif you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further dumb downthe BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be packed with more restrictionist judges,decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be gamedso that any two hard lineBoard judges,acting as a fake panelwill be able to designate anti-asylum, anti-immigrant, and pro-DHS precedentswithout even consulting their colleagues.

Even more outrageously, Barr and his do-beesover at the Office of Immigration Litigation (OIL) intend to present this disingenuous mockery as the work of an expert tribunaldeserving so-called Chevron deference.Your job is to expose this fraud to the Article IIIs in all of its ugliness and malicious incompetence.

Yes, I know, many realFederal Judges dont like immigraton cases. Tough noogies” — thats their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their comfort zonesso that they can get to yesfor your client. But, this assumes a system operating professionally and in basic good faith. In the end, its not about fulfilling the judges or opposing counsels career fantasies or self-images. Its about getting Due Process and justice for your client under law.

And, if Article III judges dont start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessionss case, that included references to dirty attorneysrepresenting asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what justice systemis the chief prosecutorallowed to reach in and change results he doesnt like to favor the prosecution? Its like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents.  In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in todays Immigration Courts.  This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that courts one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the Dred Scottificationof foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of malicious incompetencealong with a concerted effort to make foreign nationals non-personsunder the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to de-personizeand effectively de-humanizeminority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the due process hit list.

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart                                                                                                                                                                                                                                                                                                                                                                                                                                                                            it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the  precedents resulting from Sessionss and Barrs unethical participation in the quasi-judicial process;  3) make the historical record; and 4)  fight Dred Scottification.”  

I also encourage all of you to read and subscribe (its free) to my blog, immigrationcourtside.com, The Voice of the New Due Process Army.If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on Courtside.

Folks, the antidote to malicious incompetenceis righteous competence. The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies, with resulting Aimless Docket Reshuffling,intentionally jacked upand uncontrollable court backlogs, and dumbed downjudicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.  

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, injustice anywhere is a threat to justice everywhere.

The Immigration Courts once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! Malicious incompetencenever!

(05-17-19)

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PWS

05-20-19

 

NBC NEWS: MIGRANT KIDS CONTINUE TO DIE IN TRUMP’S “NEW AMERICAN GULAG” — 16 Year Old Guatemalan Boy 5th “Kid Casualty” Since Dec!

https://www.nbcnews.com/news/latino/16-year-old-migrant-boy-dies-u-s-custody-5th-n1007751

Daniella Silva reports for NBC News:

A 16-year-old Guatemalan boy died Monday in immigration custody in south Texas, the fifth migrant child to die since December, Customs and Border Protection said.

The teenager, who was not identified by authorities, was apprehended after crossing the border May 13 near Hidalgo, Texas, CBP said in a statement posted Monday. The boy was transferred from the Rio Grande Valley Sector’s Central Processing Center to the Weslaco Border Patrol Station on Sunday, the statement said.

He was then due to be placed with the Health and Human Services Office of Refugee Resettlement, the agency that oversees care of unaccompanied or separated migrant children after they are initially processed by immigration authorities, the statement said.

But the boy was found unresponsive Monday morning during a welfare check, the statement said. He died at the Weslaco Station.

“The men and women of U.S. Customs and Border Protection are saddened by the tragic loss of this young man and our condolences are with his family,” acting Commissioner John Sanders said in the statement. “CBP is committed to the health, safety and humane treatment of those in our custody.”

The cause of death is unknown and the incident is being reviewed by CBP’s Office of Professional Responsibility. The Guatemalan government has been notified, the statement said.

The boy is the fifth migrant child to die since December. All of the children were Guatemalan. Asylum-seekers and other migrants from Guatemala have been fleeing a mix of violence, drought, food shortages and poverty.

On April 30, Juan de León Gutiérrez, 16, died following “several days of intensive care” at a hospital after falling ill while in the custody of the Department of Health and Human Services.

A medical examiner in Corpus Christi, Texas, said Juan had been diagnosed with a rare condition known as Pott’s puffy tumor, which can be caused by a severe sinus infection or head trauma, according to The Associated Press.

Last week, a 2½-year-old died after being hospitalized for pneumonia, following high fever and difficulty breathing after he was apprehended in early April, authorities said.

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The death toll for kids doesn’t even count some who have died or been killed in Mexico while awaiting processing that they are legally entitled to, but are not receiving in violation of law by the Administration.

Seems like rather than wasting time and money on walls, troops to string barbed wire, “remain in Mexico,” tent cities, increased detention, and using Border Patrol Agents illegally as unqualified “Asylum Officers,” the Administration should be concentrating all efforts on humanitarian care and assistance, fairly and timely processing asylum applicants at ports of entry, and granting as many asylum cases as possible under the current law to clear those cases out of the crowded system.

The existing law is actually flexible enough to deal with the current humanitarian situation if we had a competent, law-abiding Administration. However, the likely results, granting asylum to legitimate refugees fleeing situations in the Northern Triangle for which we share a great deal of responsibility, wouldn’t please the White Nationalist nativists. Just imagine using the law properly to protect deserving refugees, rather than “gaming” it to reject them.

One main purpose of the “Wilberforce Trafficking Victims Protection Act” (“TVPA”) was to insure maximum protection to minors arriving at the border. Shamefully, rather than seeing that those protections are carried out, the Trump Administration and the GOP actually seek to remove Wilberforce Protection from those who need it most, thereby paving the way for massive child exploitation and casualties. Throughout his Administration, Trump and his White Nationalist cronies have been the “best friends” and “biggest boosters” of the druggies, human smugglers, cartels, and gangs. How about an Administration that protects victims rather than enriching and enabling their persecutors and abusers?

PWS

05-20-19

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, Im Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the heavy lifting,please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats will be in line for Dred Scottification” — becoming non-personsunder our Constitution. If you dont know what the Insurrection Actis or Operation Wetbackwas, you should tune into todays edition of my blog immigrationcourtside.com and take a look into the future of America under our current leadersdark and disgraceful vision.

Before I introduce the Dream Teamsitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under todays regime!

In the 1990s, the Legacy INSenacted regulations establishing that those who had suffered past persecutionwould be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.  

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of egregious past persecutionor other serious harm.

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as female genital mutilation(FGM), could be a basis for granting asylum based on a particular social group.Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our forced departurefrom the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (CAT), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as through teamwork and innovation being the worlds best administrative tribunals guaranteeing fairness and due process for allwas at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesnt count those offered prosecutorial discretion or PDby the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didnt squarely fit the somewhat convoluted refugeedefinition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in close casesor in emerging circumstances.

In 2014, there was a so-called surgein asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating treaties,exacting involuntary taxes,and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called surgepassed credible fearscreening by the DHS and were referred to the Immigration Courts, or in the case of unaccompanied minors,to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane nexusrequirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have sealed the deal.In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed surgeas what it really was a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called soft on enforcementby the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective manhooddepended on showing that they could quickly return refugees to the Northern Triangle to deterothers from coming. Thus began the weaponizationof our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called courtsin those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a national security risk.They argued in favor of indefinite detention without bond and making children and toddlers represent themselvesin Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by prioritizingthem, denying their claims, stuffingtheir appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administrations get toughenforcement program. EOIR was there to send a messageto those who might be considering fleeing for their lives dont come, you wont get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and adults with childrenin front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as aimless docket reshuffling(ADR).

Hurry up scheduling and ADR also resulted in more in absentiaorders because of carelessly prepared and often inadequate or wrongly addressed noticessent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didnt even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get lostin the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to expedienceand fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldnt get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates werent providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called dirty lawyers,for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the mastermindbehind the policy of child separationwhich inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged judgesto summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the new normfor final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a bogus fact sheetof lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear wait in Mexicoin dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the New American Gulagwith tent cities and more inhumane prisons dehumanizingly referred to as bedsas if they existed without reference to those humans confined to them;  illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary wall;and threatened to dumpasylum seekers to punishso-called sanctuary cities.Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the credible fearprocess with totally unqualified Border Patrol Agents whose job is to make the system adversarialand to insure that fewer individuals pass credible fear.

The Administration says the fact that the credible fearpass rate is much higher than the asylum grant rate is evidence that the system is being gamed.Thats nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified judges,many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts arent much better, having largely swallowed the whistleon a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to deferto decisions produced not by expert tribunals,but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been  granted by Immigration Judges across the country even after Sessionss blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day Jim Crowswho have abused the rule of law and human values, at all levels of our system, accountable, before the court of historyif nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administrations nativist, White Nationalist policies.Thats what the New Due Process Armyis all about.

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the best ever.I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.  

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University.  In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, whats the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

 

 

AS TRUMP’S POLICY OF “MALICIOUS INCOMPETENCE” CONTINUES TO UNRAVEL, UNHINGED PREZ CONSIDERS MASSIVE VIOLATIONS OF CONSTITUTION & HUMAN RIGHTS — “OPERATION WETBACK 2019” In The Offing?

https://www.washingtonpost.com/politics/white-house-leaves-open-possibility-of-invoking-insurrection-act-to-remove-migrants/2019/05/17/6b49c2c4-7892-11e9-bd25-c989555e7766_story.html

John Wagner reports for the Washington Post:

A White House spokesman left often the possibility Friday that President Trump would invoke an arcane law that would allow him to deploy the military to remove illegal immigrants, as Trump warned migrants on Twitter that they could be leaving the country soon.

Asked during a television appearance whether Trump is considering using the Insurrection Act, spokesman Hogan Gidley said the president is “going to do everything within his authority to protect the American people” and has “lots of tools at his disposal.”

“We haven’t used them all, and we’re looking at ways to protect the American people,” Gidley said during an appearance on Fox News’s “Fox & Friends.”

His interview took place amid a series of tweets from Trump, including some that suggested new actions to crack down on illegal immigration.

“All people that are illegally coming into the United States now will be removed from our Country at a later date as we build up our removal forces and as the laws are changed,” Trump said in one tweet. “Please do not make yourselves too comfortable, you will be leaving soon!”

In another, Trump said “bad ‘hombres’” were being detained and would be “sent home.”

His tweets followed a Rose Garden speech on Thursday about a new immigration plan that opened him to criticism from conservatives for not pressing a harder line.

The new White House proposal seeks to prioritize the admission to the United States of high-skilled workers over those with family members who are U.S. citizens, but it does not change the net level of green cards allocated each year.

In a sign of sensitivity to criticisms from immigration hard-liners, The Post reported Thursday that Trump’s advisers are looking at measures behind the scenes such as the Insurrection Act, an arcane law that allows the president to employ the military to combat lawlessness or rebellion, to remove illegal immigrants.

The idea of using the law was first reported by the Daily Caller, a conservative news outlet, after Trump finished his speech Thursday afternoon.

Such a plan would involve deployment of the National Guard and cooperation of governors who might not be inclined to go along with Trump’s order.

Seung Min Kim, Josh Dawsey and David Nakamura contributed to this report.

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

Sounds like the “brainchild” of Stephen Miller!

Nothing brings cowardly nativists to their knees more quickly than hordes of unarmed, desperate migrants seeking to exercise their legal and human rights! The Trump Administration might be “rattling the sword” with Iran, but truth is that they are scared of their own shadows. Race-baiting and threatening the weakest, most vulnerable, and defenseless among us are about the only things they know how to do.

PWS

05-17-19

THE ASYLUMIST WEIGHS IN ON EOIR’S “FACT SHEET:” “Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun?”

http://www.asylumist.com/2019/05/15/the-myths-and-facts-that-eoir-does-not-want-you-to-see/

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that  Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?

**************************************
Jason is absolutely correct. Truth eventually will win out.
But, some have already died or been irreparably harmed, and other migrants will be needlessly sacrificed on the alter of nativist White Nationalism before this corrupt Administration eventually is removed.
We have already diminished ourselves as a nation. Will we ever recover? Will those responsible at EOIR, DOJ, DHS, Congress, the Article III Courts, and elsewhere ever be held fully accountable for their lies and corrupt roles in trashing human rights and our Constitution?
PWS
05-17-19

TRUMP & HIS ENABLERS CLAIM THAT IT’S SAFE TO RETURN GUATEMALANS — THEY LIE! — The Facts “On The Ground” Tell A Far Different Story: “No wall will stop the flow of migrants. No raging about rapists or threats to separate families will stop it. No racism against brown people or fear of demographic change in 21st-century America will stop it. A broken American immigration system certainly won’t stop it. Not as long as Central Americans are desperate.”

https://www.nytimes.com/2019/05/10/opinion/border-immigration-crisis-guatemala.html

Roger Cohen writes in the NY Times:

VADO, N.M. — Rigoberto Pablo ran out of hope. There was no work, no decent schooling for his children. Nothing in the dried-out streams, wilting coffee plants and wafting sewage of his village in the western highlands of Guatemala gave him reason to think his family’s suffering would end. So late last year, he crossed the nearby Mexican border, U.S.A.-bound.

Three months later, in February, I met him in this small New Mexico town, a timid man with a gentle smile. Pablo, age 37, is in American limbo, like hundreds of thousands of migrants. Seated on a sofa in the home of his hosts, he reached down, turned up the hem of his pants and revealed the electronic ankle monitor that Immigration and Customs Enforcement affixed when it released him. A green light confirmed he was being tracked. “If I take it off,” he said, “they’ll come after me.”

His 14-year-old son, Alex, who crossed the border with his father on Nov. 14 and is now in seventh grade at a nearby school, gazed at the device. His dad, he said, is “not a rapist or murderer. He wants to work and I want to study.”

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

Desperate people do desperate things! Duh! That’s what one of my colleagues told me my first week on the bench in Arlington. Too bad that Trump and the incompetents who work for him don’t take the time to understand the basics of human migration and conduct themselves lives like human beings and responsible public officials.

America deserves someone better than Donald Trump and his cowardly sycophantic GOP. Both Guatemala and the U.S appear to be “governed” by kakistocracies!

We diminish ourselves as a nation with each day that Trump is in office. But, that won’t stop human migration. It’s going top take folks much smarter, more humane, and more competent that Trump and his toadies to successfully address today’s immigraton issues.

PWS

05-11-19

 

TAL @ SF CHRON: The New American Gulag Is Overflowing With Children

Immigrant children in US custody soaring back toward record levels

https://www.sfchronicle.com/politics/article/Immigrant-children-in-US-custody-soaring-back-13834123.php

WASHINGTON — The number of undocumented immigrant children in U.S. custody is reaching breaking-point levels again, months after the Trump administration had reduced the total in shelters in response to anger over policies that kept children there.

The recent increase is largely due to a surge in the number of children crossing the U.S.-Mexico border rather than an administration policy. Overall crossings this year have skyrocketed to decade-high levels.

As of Thursday, the number of undocumented immigrant children in U.S. custody had increased to more than 13,000, according to figures obtained by The Chronicle. The number is a near-record high, and puts the shelter network that the Department of Health and Human Services runs to keep such children in custody near maximum capacity.

Trump administration officials have asked Congress for nearly $3 billion more to increase shelter capacity. Without it, they say, Health and Human Services could run out of money for the system by June.

While the shelter network has come under increased attention in the aftermath of President Trump’s separation of families at the border last summer in order to prosecute the parents, the vast majority of children in the system come to the U.S. by themselves.

The 13,000 figure has been exceeded only once before. Last fall, the total surpassed 14,000 children in custody for the first time in history, topping out close to 15,000.

That was due mainly to an administration policy under which Immigration and Customs Enforcement rigorously screened adults who were applying to take the children out of custody. The change slowed the process and often deterred such sponsors, usually family members, from coming forward. ICE also arrested some for being undocumented immigrants.

The practice so infuriated members of Congress that in a government funding bill in February, they barred ICE from using the information it collected as part of the screenings to arrest immigrants.

The Trump administration instituted a policy in December to try to release undocumented children from its custody more quickly, rescinding its requirement to fingerprint every adult in the home where the child would be living. Only the adult sponsoring the child is fingerprinted now.

By January, that had brought the number of children in custody below 11,000, according to Health and Human Services, with thousands of beds available.

More here : https://www.sfchronicle.com/politics/article/Immigrant-children-in-US-custody-soaring-back-13834123.php

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

Always great to get Tal’s timely and highly readable reporting!

What’s the solution?  Well, it’s not the Trump Administration’s “preferred solution” of allowing the Border Patrol to mindlessly rocket vulnerable kids back to the Northern Triangle to be killed, tortured, exploited, abused, or forced to join gangs. It’s actually part of a worldwide trend that has seen more and more of the total refugee population comprised of children. So, this phenomenon shouldn’t have come as a surprise to a competent Administration focused on dealing with refugee situations humanely under the laws.

A rational solution would be to work closely and cooperatively with NGOs with expertise in child refugees (like, for example, Kids In Need Of Defense (“KIND”) or the Safe Passage Project), pro bono lawyers, and communities to figure out what is in the best interests of these children.

Then, pursue the right options: Special Immigrant Juvenile Status (”SIJS”) for some; expedited grants of asylum through the Asylum Office under the Wilberforce Act for others; TPS for others, recognizing the reality that there is an “ongoing state of armed conflict” in the Northern Triangle; an exercise of prosecutorial discretion (“PD”) for others; and humane and organized repatriation for others, where that is actually in the child’s best interests.

There are plenty of tools available under existing laws to deal with this issue. We just have an Administration that refuses to use them and prefers to create a “crisis” to justify “throwing children under the bus.” Mistreating children is cowardly and bodes ill for the future of any country that permits it to happen. What goes around comes around!

PWS

05-10-19

 

 

POLITICO: Are Trump’s Immigration Policies Causing More Migrants To “Voluntarily Depart?”

https://apple.news/ANCLqhkMJT5OlWhn2TePBdg

Christie Thompson and Andrew R. Calderon of The Marshall Project report in Politico:

Christie Thompson is a staff writer and Andrew R. Calderon is a data reporter for The Marshall Project, a nonprofit news organization that focuses on the U.S. criminal justice system.

Alejandra Garcia Zamarrón, a mother of three American citizens, had lived in the United States for nearly 20 years when a police officer pulled over the unregistered vehicle she was riding in.

Georgia was her home, the place where she’d lived for years and raised her family. But when she found herself locked in the Irwin County Detention Center, she had few options to stay. She’d been brought to the U.S. as a child, but her protected status as a childhood arrival had expired. And she had given a fake name and date of birth to the police officer who stopped her, a misdemeanor that put her at greater risk of deportation.

Zamarrón, 32, initially vowed to fight her removal from the U.S. as long as she could. But as the months in detention dragged on, she changed her mind and asked for “voluntary departure,” which would allow her to leave the U.S. without a deportation on her record. “My family decided the best bet was for me to leave and fight from the outside,” Zamarrón said in a phone call from the detention center, before she returned to Mexico in November.

The number of immigrants who have applied for voluntary departure has soared since the election of Donald Trump, according to new Justice Department data obtained by The Marshall Project. In fiscal year 2018, the number of applications doubled from the previous fiscal year—rising much faster than the 17 percent increase in overall immigration cases, according to data from the Transactional Records Access Clearinghouse at Syracuse University. The numbers show yet another way the Trump administration’s crackdown on immigration is having an effect: More people are considering leaving the U.S., rather than being stuck in detention or taking on a lengthy legal battle with little hope of success.

Last year, voluntary departure applications reached a seven-year high of 29,818. In the Atlanta court, which hears cases of Irwin detainees like Zamarrón, the applications multiplied nearly seven times from 2016 to 2018.

The increase in applications for voluntary departure could be seen as a win for the Trump administration, which has made it a goal to get undocumented immigrants out of the country and reduce the backlog of immigration cases. Indeed, the Justice Department has published the growing number of voluntary departures alongside deportations as a sign of a “return to the rule of law” and that Trump’s approach is working. It’s also a sign of how broad immigration enforcement has become, sweeping up the criminals Trump talks about alongside parents like Zamarrón who have little to no criminal history—voluntary departure is only open to immigrants without a serious record. When Mitt Romney once shared his plan to have people “self-deport,” he meant it as an alternative to ramping up Immigration and Customs Enforcement’s power. But the recent spike in voluntary departure has come with an increase in both arrests and detention.

An application for voluntary departure has to be approved by an immigration judge. The number of requests granted increased 50 percent in fiscal year 2017, according to data from the Justice Department. Because not every case is resolved during the year it is filed, and judges can grant voluntary departure without a formal application, the annual total of voluntary departures has exceeded the number of applications.

Under immigration law, voluntary departure is considered a kind of privilege. If you are deported, you have to wait years to apply for a visa to reenter the United States, but those who leave voluntarily don’t have the same wait. And you don’t face serious prison time if you are caught without legal status in the U.S.

But voluntary departure is a last resort for many undocumented immigrants because it means leaving their longtime homes and, often, their families without any clear prospect for returning. And those who take the option usually have to pay their own way home. Those flights can cost thousands of dollars because immigration officials require a special kind of ticket that can be changed at any time.

Several factors are probably responsible for the surge in the number of applications for voluntary departure, experts say. ICE has increasingly gone after immigrants who have no criminal backgrounds—those who are more likely to qualify for voluntary departure. Because of the growing backlog of immigration cases, judges and Department of Homeland Security attorneys may feel pressured to resolve cases quickly and offer voluntary departure instead of dragging out multiple appeals.

“I would definitely think that some of it might be related to judges trying to keep up with their production quotas,” said former immigration Judge Paul Wickham Schmidt.

The Executive Office for Immigration Review—the Justice Department office in charge of immigration courts—declined to comment on the increase in applications. “Using metrics to evaluate performance is neither novel nor unique to EOIR,” spokeswoman Kathryn Mattingly wrote in an email. “The purpose of implementing these metrics is to encourage efficient and effective case management while preserving immigration judge discretion and due process.”

ICE spokesman Brendan Raedy wrote in an email many apply for voluntary departure so they don’t have to wait to apply to reenter the country. “In addition, voluntary departure generally provides far more time to make necessary arrangements than for those who are ordered removed,” he wrote.

Attorney Marty Rosenbluth, who represents clients in the immigration court at the Stewart Detention Center in Georgia, said more of his clients from Mexico are considering voluntary departure because of the danger involved in deportation. At Stewart, one of the country’s most remote detention centers, the number of applications last year was 19 times what it had been in 2016.

“It’s largely a safety thing,” Rosenbluth said. In deportations, “ICE just dumps you at the border, and you’re on your own.”

If they’re granted voluntary departure, people are able to fly into Mexico City or closer to home.

Immigrants may also be increasingly aware of voluntary departure as an option and of the slim chances of winning a case from detention. “Detainees talk to each other,” said Trina Realmuto, a directing attorney for the American Immigration Council, a pro-immigration nonprofit. “The one guy fighting his case is going to say, ‘I’ve been here a year and nobody wins.’ There are legal factors, and there’s human factors.”

Zamarrón’s request for voluntary departure came as a surprise to her legal team. “She had been saying for months and months, ‘I’m going to fight this,’” said attorney Laura Rivera of the Southern Poverty Law Center, who worked on Zamarrón’s case. “It speaks to the desperation of people in detention that they’d be trying to sign up in droves for this thing that actually causes them to be removed. They’ve got to be thinking that there’s no way out.”

Before she returned to Mexico, Zamarrón said she was driven by the need to have more contact with her family than she was able to have in detention.

“When I come out, I’ll be able to have more communication with them, FaceTime with them,” she said. “I didn’t want to wait. I’m ready to see my baby’s face.”

From Mexico, she recently video-called into her 13-year-old daughter’s baptism. She hopes to apply for a U-Visa as a victim of domestic violence and sexual assault and, at the very least, have her 17-year old son petition to bring her to the United States after he turns 21.

Zamarrón said many of the women with whom she was detained were also considering voluntary departure.

“They’re tired of living in here, of dealing with ICE, dealing with guards, dealing with the injustice. … They give up. They’d rather be deported than fight for their case,” she said. “We’re not criminals. We just don’t have options.”

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

“Voluntary departure” (“VD”) is a mixed bag. It undoubtedly can be an effective way for Immigration Judges to manage crowded dockets by eliminating those cases that do not require “full merits” hearings. And, after Sessions got done stripping judges of their most effective docket management tools and reducing them to “enforcement clerks,” it’s one of the few such tools left to the beleaguered and diminished “judges.”

On the other hand, in conjunction with coercive detention and “production quotas,” there is a temptation for judges and DHS Counsel to use “VD” to duress migrants into abandoning plausible cases for asylum or other relief just to get out of what has intentionally become an oppressive and biased system.

Either way, it’s unlikely that the “VD rush” will be a major factor in reducing the ever-increasing backlog of Immigration Court cases. That would require a smarter due process oriented, more pragmatic approach than this Administration is capable of or willing to embrace.

PWS

05-10-19

 

 

 

 

TRUMP ADMINISTRATION PLANS MASSIVE ASSAULT ON HUMAN RIGHTS! — Can Anyone Stop These Scofflaws!

https://www.washingtonpost.com/immigration/us-asylum-screeners-to-take-more-confrontational-approach-as-trump-aims-to-turn-more-migrants-away-at-the-border/2019/05/07/3b15e076-70de-11e9-9eb4-0828f5389013_story.html

Nick Miroff reports for WashPost:

The Trump administration has sent new guidelines to asylum officers directing them to take a more skeptical and confrontational approach during interviews with migrants seeking refuge in the United States. It is the latest measure aimed at tightening the nation’s legal “loopholes” Homeland Security officials blame for a spike in border crossings.

According to internal documents and staff emails obtained Tuesday by The Washington Post, the asylum officers will more aggressively challenge applicants whose claims of persecution contain discrepancies, and they will need to provide detailed justifications before concluding an applicant has a well-founded fear of harm if deported to their home country.

The changes require officers to zero in on any gaps between what migrants say to U.S. border agents after they are taken into custody and testimony they provide during the interview process with a trained asylum officer.

‘This is what we’re seeing every day’: Another long night on the U.S.-Mexico border

The new guidelines and directive to asylum officers are among the most significant steps the administration has taken to limit access to the country for foreigners seeking asylum, whose right to apply for humanitarian protection is protected by U.S. law and rooted in post-World War II international treaties granting refuge to those fleeing persecution. The changes appear to signal the administration wants to turn away asylum seekers earlier in the legal process, aiming to cut down on the number of applicants who enter the court system and to deter others from attempting to cross into the United States to seek asylum.

With a record number of Central American families arriving at the border and swamping U.S. courts with asylum claims, Trump has repeatedly scoffed at the protections and has told crowds that dangerous criminals are using it to game the system and stay in the United States.

“The asylum program is a scam,” Trump said last month in a speech. “Some of the roughest people you’ve ever seen, people that look like they should be fighting for the UFC (Ultimate Fighting Championship) . . . you look at this guy you say ‘Wow, that’s a tough cookie!”

Jessica Collins, a CIS spokesperson, confirmed that new guidelines — included in a lesson plan Reuters has posted online — were issued to officers, describing them as a “periodic update.”

“As part of this periodic update, we have reiterated to asylum officers long-standing policies that help determine an individual’s credibility during the credible fear interview and have ensured there are consistent processes for both positive and negative credible fear determinations,” Collins said in a written statement.

Central American asylum seekers exit the Chaparral border crossing gate after being sent back to Mexico by the U.S. in Tijuana, Mexico, in January. (Shannon Stapleton/Reuters)

Homeland Security agencies already are struggling to comply with court orders limiting the amount of time families with children can be held in detention, and further processing delays could exacerbate dangerous overcrowding at Border Patrol stations and immigration jails. Some areas along the border have been overwhelmed, at times seeing three times as many migrants as they have beds in detention facilities, leading many to be directly released into the United States after initial questioning.

The initial screening is known as a “credible fear” assessment, and it has become a particular focus of frustration for the White House at a time when illegal border crossings have jumped to a 12-year high, exceeding 100,000 per month.

The influx has swamped U.S. agents and filled Border Patrol stations far beyond their capacity, forcing the government to frequently bypass the credible fear screening process and release tens of thousands of Central American families with little more than a notice to appear in court.

“We’ve released four times as many people as we’re able to arrest on an annual basis,” said Albence, noting that ICE makes approximately 40,000 “at large” arrests of immigration violators in the U.S. interior each year.

Statistics show most migrants who claim persecution pass the initial credible fear screening, but far fewer ultimately receive asylum from a judge. An avalanche of new applicants in recent years has contributed to a backlog of more than 860,000 cases in U.S. immigration courts, and it can take years for an asylum applicant to get a final answer in court.

That lag time that has created a loophole in U.S. immigration enforcement, Homeland Security officials say, especially for applicants who arrive with children. They are typically released from custody and allowed to remain in the country while their cases are adjudicated. The process allows them to spend years living and working in the United States, regardless of whether their claims are ultimately found to be valid.

One senior DHS official said Miller and others in the administration are struggling against an asylum officer corps that doesn’t share its immigration goals and would rather refer an applicant to the courts than risk making the wrong choice in a rushed decision with life-or-death consequences.

The administration’s changes take effect immediately, and asylum officers will be trained in their application in coming weeks, according to the emails and CIS officials.

Those changes also direct the Justice Department to complete processing of asylum claims within 180 days.

Lafferty also told staff that 10 U.S. Border Patrol agents had volunteered to join a pilot program that will train them to conduct credible fear screenings. As many as 50 agents will be trained in coming months, he said.

The plan has raised concerns from immigrant advocates who say agents should not be making such consequential decisions about credibility of migrants’ deportation fears and their eligibility for humanitarian refuge.

“Credible fear interviews involve the discussion of sensitive, difficult issues,” Julie Veroff, of the American Civil Liberties Union’s Immigrant Rights Project, wrote Monday, calling the plan “highly concerning.”

“Federal law thus requires that credible fear interviews be conducted in a ‘nonadversarial manner,’” Veroff wrote. “Credible fear interviews have always been conducted by professionals who specialize in asylum adjudication, not immigration enforcement.”

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

Same old, same old. Seems like Trump has been down this path before with Sessions and Nielsen. It ended in a stinging rebuke from Judge Emmet Sullivan  in Grace v. Whitaker.

Why aren’t we at the point of contempt citations and disbarment actions for frivolous litigation being conducted  by the Trump Administration?

PWS

05-18-19

 

PROFESSOR FITZ BRUNDAGE @ WASHPOST: Can We Regain Our Humanitarian Values In The Age Of Trump? — “We must shine a spotlight on cruel and illegal policies that undermine our national ideals and find the wisdom and the courage to do better.”

https://www.washingtonpost.com/outlook/2019/05/03/can-united-states-retain-its-humanity-even-crisis

Brundage writes in WashPost:

Fitz Brundage is the William B. Umstead professor of history at UNC-Chapel Hill and the author of “Civilizing Torture,” which was a finalist for the 2019 Pulitzer Prize in History.

May 3

Does it violate human rights to hold children in fenced enclosures in grim facilities that are bone-chillingly cold for weeks on end? Is separating children from their parents a form of cruel and unusual punishment? When does a crisis justify the kind of treatment normally seen as inhumane?

The furious debate over migrant detention along the nation’s southwest border with Mexico has put these questions front and center in American politics. But they’re not new. The treatment of people on the margins of American life — criminals, immigrants, civilians in overseas war zones — has always proven a challenge to our democratic ideals.

Yet beginning in the 1920s, activists waged a half-century-long struggle to persuade the Supreme Court to stop abusive practices by authorities. After World War II, the United States also committed itself to the promotion of international human rights. These two signal developments have been seriously eroded, first by the excesses of the war on terrorism and now by the Trump administration’s targeting of the unwelcome and powerless, whether they are undocumented immigrants in the United States or asylum seekers. We have returned to a pattern of willful ignorance, one that allows us to avoid grappling with deeply immoral policies.

Threats to our safety, perceived or real, have long justified the kind of “tougher policies” that President Trump has demanded for the southern border. He may not be well versed in history, but the president is joining a long line of elected officials who found that rights and basic norms are easily jettisoned when they collide with demands for greater security. Across our history, from the Indian wars to the war on terrorism, officials were quick to call for “tougher policies” and slow to fill in the details. In 1901, President Theodore Roosevelt ordered military commanders in the Philippines to adopt “the most stern measures” to punish Filipino guerrillas; in a subsequent campaign the Marines followed orders and left a trail of devastation and death across the island of Samar. But such methods were justified as a “military necessity.”

Roosevelt rationalized the brutal treatment of alleged guerrillas by citing the need to stanch the threat to security. This kind of evasive language has repeatedly prevented us from coming to terms with acts of cruelty carried out in the name of national security. We’re seeing that pattern again.

What precisely did Trump officials mean when they announced “a tougher direction” for immigration? They certainly imply more than just the proposals for new fees and regulations reducing the numbers of asylum seekers. Are the American people ready to confront the reality of harsh security measures? Or will we retreat into euphemisms such as a “hardened” border and “zero tolerance” for migrants that covers up the reality of what is actually happening on the border?

We are deciding day by day whether to extend the basic protections of law and civilization to the people arriving on our border. For much of the nation’s history, the prohibition on cruelty and torture in American law rested on the premise that the fundamental decency of Americans, especially empathy for fellow citizens, would make such violations unthinkable.

But our capacity to empathize begins to fray at the margins, and we grow less certain about who, exactly, deserves protection. Those deemed undeserving, unwelcome or powerless — Native Americans, the enslaved, prison inmates and criminal suspects — have commonly suffered forms of violence and abuse that violated our national principles. Some people are inside the protection of the law, and some are cast out from it.

In fact, we’ve already seen this pattern. Accusations of cruelty and torture by ICE and CBP agents have been circulating for years, and they follow this well-worn pattern. Official denials are followed by investigations that almost always find limited violations by “a few bad apples,” not the kind of systemic abuse that would call our broader policies into question.

This pattern has long historical roots: When investigations of police brutality in Washington during the 1930s revealed widespread use of abusive interrogation methods, the police superintendent, whose predecessors had dismissed similar allegations for decades, only grudgingly conceded that a few officers may have gone too far in their resolve to protect the public.

Focusing on bad apples has long allowed us to excuse morally bankrupt policies. We need to realize that human rights abuses on the southern border aren’t spurred by immoral actors in ICE or CBP, but rather because of a political leadership that can’t or won’t come up with humane immigration policies.

Congress needs to do its job and exercise scrupulous oversight of Trump’s immigration policies. But the real solution to our border crisis is to demand that all elected officials, from local sheriffs to senators, responsibly address immigration and human rights. Trump declared that he wants immigration to be a key campaign issue in 2020. His opponents should accept that challenge. We must shine a spotlight on cruel and illegal policies that undermine our national ideals and find the wisdom and the courage to do better.

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

Join the New Due Process Army today and fight for human rights, the rule of law, accountability for Government scofflaws, and a return to basic human decency! Fight for a better future for ALL Americans!

PWS
05-07-19

NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

https://www.nytimes.com/interactive/2019/05/04/world/americas/honduras-gang-violence.html?smid=nytcore-ios-share

Azam Ahmed Reports for the NY Times:

. . . .

Shootouts, armed raids and last-minute pleas to stop the bloodshed formed the central threads of their stories. MS-13 wanted the neighborhood to sell drugs. The other gangs wanted it to extort and steal. But the members of Casa Blanca had promised never to let their neighborhood fall prey to that again. And they would die for it, if they had to.

Almost no one was trying to stop the coming war — not the police, not the government, not even the young men themselves. The only person working to prevent it was a part-time pastor who had no church of his own and bounced around the neighborhood in a beat-up yellow hatchback, risking his life to calm the warring factions.

“I’m not in favor of any gang,” said the pastor, Daniel Pacheco, rushing to the Casa Blanca members after the shooting. “I’m in favor of life.”

The struggle to protect the neighborhood — roughly four blocks of single-story houses, overgrown lots and a few stores selling chips and soda — encapsulates the inescapable violence that entraps and expels millions of people across Latin America.

Since the turn of this century, more than 2.5 million people have been killed in the homicide crisis gripping Latin America and the Caribbean, according to the Igarapé Institute, a research group that tracks violence worldwide.

The region accounts for just 8 percent of the global population, yet 38 percent of the world’s murders. It has 17 of the 20 deadliest nations on earth.

And in just seven Latin American countries — Brazil, Colombia, Honduras, El Salvador, Guatemala, Mexico and Venezuela — violence has killed more people than the wars in Afghanistan, Iraq, Syria and Yemen combined.

Most of the world’s most dangerous
cities are in Latin America

Latin America

Africa

U.S.

Other

SAFER CITIES

MORE DANGEROUS

Cancún,

Mexico

Kingston,

Jamaica

San Pedro Sula,

Honduras

San Salvador

London

Los Angeles

Paris

Tokyo

Istanbul

Los Cabos,

Mexico

Tijuana,

Mexico

Bogotá,

Colombia

St. Louis

Moscow

New Orleans

6.2 global avg.

0

40

60

80

100

120

Average homicide rate per 100k people

By Allison McCann

Source: Igarapé Institute and the United Nations Office on Drugs and Crime. Cities include the 50 highest homicide rates in the world and a group of prominent others for comparison, all with populations of at least 250,000. Average homicide rates are from 2016-2018 or the latest data available.

The violence is all the more striking because the civil wars and military dictatorships that once seized Latin America have almost all ended — decades ago, in many cases. Most of the region has trudged, often very successfully, along the prescribed path to democracy. Yet the killings continue at a staggering rate.

They come in many forms: state-sanctioned deaths by overzealous armed forces; the murder of women in domestic disputes, a consequence of pervasive gender inequality; the ceaseless exchange of drugs and guns with the United States.

Underpinning nearly every killing is a climate of impunity that, in some countries, leaves more than 95 percent of homicides unsolved. And the state is a guarantor of the phenomenon — governments hollowed out by corruption are either incapable or unwilling to apply the rule of law, enabling criminal networks to dictate the lives of millions.

For the masses fleeing violence and poverty in Central America, the United States is both a cause and solution — the author of countless woes and a chance to escape them.

Frustrated with the stream of migrants treading north, President Trump has vowed to cut aid to the most violent Central American nations, threatening hundreds of millions of dollars meant to address the roots of the exodus.

But the surviving members of Casa Blanca, who once numbered in the dozens, do not want to flee, like tens of thousands of their countrymen have. They say they have jobs to keep, children to feed, families, neighbors and loved ones to protect.

“There is only one way for this to end,” said Reinaldo. “Either they kill us or we kill them.”

. . . .

 

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

For the full version of Azam’s report and a much better chart graphic, go to the above link!

Trump’s complete lack of humanity, empathy, and his constant racist-inspired lies and misrepresentations about refugees and asylum seekers are truly reprehensible.

But, he and his henchmen like Stephen Miller are by no means the entire problem.

Every day in U.S. Immigration Court, DHS attorneys make demonstrably false representations minimizing the truly horrible conditions in the Northern Triangle, particularly for women. Every day, some U.S. Immigration Judges betray their oaths of office by accepting those false representations and using them, along with an unfairly skewed anti-asylum view of the law, to deny asylum cases that should be granted.

And, perhaps worst of all, every day some life-tenured Article III Circuit Judges turn a blind eye to the legal travesty and due process disaster taking place throughout our corrupted Immigration Courts by rubber stamping results that would be totally unacceptable in any other type of litigation and which don’t even pass the “straight face test.” I guess “out of sight is out of mind,” and the wrongfully deported are “out of sight” (or maybe dead, in hiding, or duressed into joining or cooperating with gangs after the U.S. failed to protect them)

But, there are folks our there resisting this malfeasance and dereliction of duty. Among other things, they are memorializing what is happening and making a record of where the “modern day Jim Crows” and their enablers stand and what they have done to their fellow human beings in the name of “expedience” and an “Alfred E. Neuman (“What Me Worry”)” view of the law and our legal system.

Donald Trump is horrible. But, his racism and infliction of lasting damage on our country and on humanity depend on too many judges and other supposedly responsible public officials supporting, acquiescing, enabling, or minimizing his inhumane, dishonest, counterproductive, and often illegal actions.

An appropriate response by an honest, competent Administration with integrity would be:

  • Establish legal precedents recognizing those fleeing politicized gang violence, domestic violence, and violence directed at famnilies as refugees;
  • Establish precedents incorporating the Article III decisions emphasizing the concept of “mixed motive” in determining “nexus” under asylum and withholding of removal laws;
  • Establish precedents granting temporary withholding of removal under the Convention Against Torture (“CAT”) to those who face torture at the hands of the gangs or Northern Triangle governments (or both), but who can’t establish the convoluted “nexus” for asylum, with a rebuttable presumption that the countries of the Northern Triangle will “acquiesce” in the torture;
  • Liberally use Temporary Protected Status (“TPS”) for nationals from Northern Triangle countries which perhaps would make large-scale asylum adjudication less of a priority and allow most cases to be dealt with in due course through the Asylum Offices rather than clogging Immigration Court dockets;
  • Work to insure that applicants for protection have assistance of counsel in developing and presenting their claims (which would also dramatically increase fairness and efficiency).

PWS

05-05-19

 

 

LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!

https://www.jeffreyschase.com/blog/2019/4/21/a-better-approach-to-unable-or-unwilling-analysis

 

A Better Approach to “Unable or Unwilling” Analysis?

“K.H., a Guatemalan native and citizen, was kidnapped, beaten, and raped in Guatemala when she was seven years old.”  That horrifying sentence begins a recent decision of the U.S. Court of Appeals for the Sixth Circuit denying asylum to that very same youth.

In that case, DHS actually stipulated that the applicant was persecuted on account of a statutorily protected ground.  But the insurmountable hurdle for K.H. was her need to establish that the government of Guatemala was unable or unwilling to control the gang members who had persecuted her.

Asylum is supposed to afford protection to those who are fleeing something horrible in their native country.  Somehow, our government has turned the process into an increasingly complex series of hoops for the victim to jump through in order to merit relief.  Not long after Congress enacted legislation in 2005 making it more difficult for asylum seekers to be found believable, the Seventh Circuit Court of Appeals acknowledged that “asylum hearings are human events, and individuals make mistakes about immaterial points…Basing an adverse credibility finding on these kinds of mistakes appears to be more of a game of ‘gotcha’ than an effort to critically evaluate the applicant’s claims.”  Sankoh v. Mukasey, 539 F.3d 456, 470 (7th Cir. 2008).  More recent developments have extended the game of “gotcha” beyond credibility determinations and into substantive questions of law.

It is recognized that one can qualify for asylum where the persecutors are not part of the government, provided that the government is either unable or unwilling to control them.  In a recent amicus brief, the Office of the United Nations High Commissioner for Refugees (UNHCR) correctly stated what seems obvious: that “the hallmark of state protection is the state’s ability to provide effective protection, which requires effective control of non-state actors.”  As the whole point of asylum is to provide humanitarian protection to victims of persecution, of course the test must be the effectiveness of the protection.  UNHCR continued that the fact that a government has enacted laws affording protection is not enough, as “even though a particular State may have prohibited a persecutory practice…the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively.”

When I was an immigration judge, I heard testimony from country experts that governments were often inclined to pass laws or even create government agencies dedicated to the protection of, e.g. religious minorities solely for cosmetic reasons, to give the appearance to the international community that it was complying with international human rights obligations, when in reality, such laws and offices provided no real protection.  But UNHCR recognizes that even where there is good intent, “there may be an incongruity between avowed commitments and reality on the ground. Effective protection depends on both de jure and de facto capability by the authorities.”

Yet U.S. law has somehow recently veered off course.  In unpublished decisions, the BIA began applying what seems like a “good faith effort” test, concluding that the asylum applicants had not met their burden of establishing that the government was “unable or unwilling to protect” if there was evidence that the government showed some interest in the issue and took some action (whether entirely effective or not) to provide protection.  Such approach wrongly ignored whether the government’s efforts actually resulted in protecting the asylum seeker. Next, former Attorney General Jeff Sessions weighed in on the topic in his decision in Matter of A-B-, in which he equated a government’s unwillingness to control the persecutors (which could potentially be due to a variety of factors, including fear, corruption, or cost) with the much narrower requirement that it “condone” the group’s actions.  He further opined that an inability to control requires a showing of “complete helplessness” on the part of the government in question to provide protection. These changes have resulted in the denial of asylum to individuals who remain at risk of persecution in their country of origin.

In K.H., it should be noted that the evidence that convinced the BIA of the Guatemalan government’s ability to afford protection included a criminal court judge’s order that the victim be moved to another city, be scheduled for regular government check-ins as to her continued safety there (which the record failed to show actually occurred), and the judge’s further recommendation that the victim seek a visa to join her family in the U.S.  A criminal court judge’s directive to move to another city and then leave for a safer country hardly seems like evidence of the Guatamalan government’s ability or willingness to provide adequate protection; quite the opposite. But that is how the BIA chose to interpret it, and somehow, the circuit court found reason to let it stand under its limited substantial evidence standard for review.

Challenges to these new interpretations are reaching the circuit courts.  Addressing the issue for the first time, the Sixth Circuit in K.H. created a rather involved test.  The court first set out two broad categories, consisting of (1) evidence of the government’s response to the asylum seeker’s persecution, and (2) general evidence of country conditions.  WIthin broad category (1), the court created three subcategories for inquiry, namely: (1) whether the police investigated, prosecuted, and punished the persecutors after the fact; (2) the degree of protection offered to the asylum seeker, again after the fact of their being persecuted, and (3) any concession on the part of the government, citing a Third Circuit decision finding a government’s relocation of a victim to Mexico as an admission by that government of its own inability to provide adequate protection.  (Somehow, the criminal judge’s order to relocate K.H. to another city and then seek a visa to the U.S. was not viewed as a similar concession by the BIA.)

Under broad category (2) (i.e. country conditions), the court established two subcategories for inquiry, consisting of (1) how certain crimes are prosecuted and punished, and (2) the efficacy of the government’s efforts.

Some shortcomings of this approach jump out.  First, many asylum applicants have not suffered past persecution; their claims are based on a future fear of harm.  As the Sixth Circuit approach is based entirely on how the government in question responded to past persecution, how would it apply to cases involving only a fear of future persecution?

Secondly, and more significantly, the Sixth Circuit’s entire approach is to measure how well a government acted to close a barn door after the horse had already escaped.  The test is the equivalent of measuring the owner of a china shop’s ability to protect its wares from breakage by studying how quickly and efficiently it cleaned up the broken shards and restocked the shelves after the fact.

I would like to propose a much simpler, clearer test that would establish with 100 percent accuracy a government’s inability or unwillingness to provide effective protection from a non-state persecutor.  The standard is: when a seven year old girl is kidnapped, raped, and beaten, the government was presumably unable to provide the necessary effective protection.

If this seems overly simplistic, I point to a doctrine commonly employed in tort law, known as res ipsa loquitur, which translates from the Latin as “the thing speaks for itself.”  It is something all lawyers learn in their first year of law school. I will use the definition of the concept as found on the Cornell Law School website (which is nice, as I recently spoke there), which reads:

In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence.  The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.

The principle has been applied by courts since the 1860s.

So where the government has stipulated that the respondent suffered persecution on account of a protected ground, should we really then be placing the additional burden on the victim of having to satisfy the “unable or unwilling” test through the above line of inquiry set out by the Sixth Circuit?  Or would it be more efficient, more, humane, and likely to reach a more accurate result that conforms to the international law standards explained by UNHCR, to create a rebuttable presumption of asylum eligibility by allowing the asylum applicant to establish that the persecution would not ordinarily have occurred if the government had been able and willing to provide the protection necessary to have prevented it from happening?  The bar would be rather low, as seven year olds should not be kidnapped, raped, and beaten if the police whose duty it was to protect the victim were both able and willing to control the gang members who carried out the heinous acts. The standard would also require a showing that such harm occurred in territory under the government’s jurisdiction (as opposed to territory in which, for example, an armed group constituted a de facto government).

Upon such showing, the burden would shift to DHS to prove that the government had the effective ability and will to prevent the persecution from happening in the first place (as opposed to prosecuting those responsible afterwards) by satisfying whatever complex, multi-level inquiry the courts want to lay out for them.  However, DHS would not meet its burden through showing evidence of the government’s response after the fact. Rather, it would be required to establish that the Guatemalan government provides sufficient protection to its citizens to prevent such harm from occurring in the first instance, and that what happened to the asylum applicant was a true aberration.

Shifting the burden to DHS would make sense.  It is often expensive to procure a respected country expert to testify at a removal proceeding.  As more asylum applicants are being detained in remote facilities with limited access to counsel, it may be beyond their means to retain such experts themselves.  The UNHCR Handbook at para. 196 recognizes the problems asylum seekers often have in documenting their claims.  It thus concludes that “while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.”

  Furthermore, ICE attorneys who should welcome the role of such experts in creating a better record and increasing the likelihood of a just result  have taken to disparaging even highly respected country experts, sometimes subjecting them to rather hostile questioning that slows down proceedings and might discourage the participation of such experts in future proceedings.  Therefore, letting ICE present its own experts might prove much more efficient for all.

Incidentally, UNHCR Guidelines published last year state that while the Guatemalan government has made efforts to combat gang violence and has demonstrated some success, “in certain parts of the country the Government has lost effective control to gangs and other organized criminal groups and is unable to provide protection…”  The report continued that some temporary police operations have simply caused the gangs to move their operations to nearby areas. The report further cited the problem of impunity for violence against women and girls, as well as other groups, including “human rights defenders, legal and judicial professionals, indigenous populations, children and adolescents, individuals of diverse sexual orientations and/or gender identities, journalists and other media workers.”    The same report at pp. 35-36 also references corruption within the Guatemalan government (including its police force) as a “widespread and structural problem.”  DHS would have to present evidence sufficient to overcome such information in order to rebut the presumption triggered by the fact of the persecution itself.

Another  benefit of the proposed approach would be its impact on a victim’s eligibility for a grant of humanitarian asylum, which may be granted based on the severity of the past persecution suffered even where no fear of future persecution remains.  A child who was kidnapped, raped, and beaten by gang members at the age of seven, and who will certainly suffer psychological harm for the rest of her life as a result, should clearly not be returned against her will to the country in which she suffered such horrific persecution.  Yet the Sixth Circuit upheld the BIA’s denial of such humanitarian protection, because in affirming the Board’s conclusion that K.H. had not met her burden of showing the Guatemalan government was unable and unwilling to protect her (based solely on its after-the-fact response), it also upheld the BIA’s finding that K.H. did not meet all of the requirements necessary for her to have established that she suffered past persecution.  This in spite of the fact that DHS stipulated that she did suffer past persecution on account of a statutorily protected ground. As only an applicant who established past persecution is eligible for humanitarian asylum, this very convoluted approach successfully blocked such remedy.

However, if the standard were to assume that the harm suffered by the asylum applicant triggers the presumption that the Guatemalan government was unable or unwilling to prevent it, the evidence that government’s subsequent efforts to prosecute those responsible and protect the victim would not serve to rebut the presumption.  Rather, it would be considered as possible evidence of changed conditions in the country of origin sufficient to show that after suffering past persecution, the asylum applicant would now have no further fear of returning there. This critical distinction would then allow K.H. to be granted humanitarian asylum even if the government prevailed in its arguments, as opposed to facing deportation that would return her to the scene of such extreme persecution.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

 

The Immigration Court: Issues and Solutions

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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But, here’s the deal, complicit and complacent judges! We’re now governed by folks who have no respect for judges, the Constitution, the law, and no use for judges unless they are doing  the bidding of the “Great Leader” and his flunkies. So, maybe your time will come too, when your rights or your family’s rights become dispensable to the powers that be.
But, there won’t be any Due Process or legal system left to protect you. And, whose going to stand up for your rights as they are trashed and trampled when you lacked the courage, scholarship, and integrity to stand up for the rights of others, particularly the most vulnerable among us?
More bad news for you irresponsible “judicial dudes.”  “No reasonable adjudicator” could have reached the conclusion you did in this case!
Like Judge Chase, I’ve done enough of these cases, at both the trial and appellate level, to know a clear grant when I see one. Indeed, on this record, the idea that the Guatemalan government is willing or able to protect this young lady is preposterous.  It doesn’t even pass the “straight face” test. So much for hiding behind your “standards of review” fiction.  Think of K.H. as your daughter or granddaughter rather than
“a mere stranger” and then see how your “head in the sand” legal analysis works out.
The questionable conduct of the judges at all three levels in this case shows why our current Immigration Court system is so screwed up. Individuals who could efficiently be granted protection at the lowest levels in an honest, well-functioning, and professional system are instead made to ”run the judicial gauntlet” while various “black robes” work hard and occupy time looking for reasons to “stiff” their valid claims for protection. Indeed, in a well-functioning system, cases like this would be granted at the Asylum Office level and wouldn’t clog the courts in the first place.
An independent judiciary with courage and integrity is essential to the survival of our democracy. Sadly, this case is a prime example of a system in failure — at all levels.
PWS
04-25-19

THE TRUMP ADMINISTRATION LIES, BUT TRAC STATS DON’T: TRAC Exposes Trump’s False Narratives About Families & “Sanctuary Cities” – No Families Are Not “Overwhelming” The System & Most Of Them Already Have Been Absorbed By So-Called “Sanctuary Jurisdictions!”

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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE

Despite the concern about the number of families arriving at the border seeking asylum, families continue to remain a minor proportion of new cases arriving at the Immigration Courts each month. For example, during March 2019, just 18.7 percent of the new cases that came in involved these families. Despite this, the court’s backlog continues to climb and reached a new historic high of 869,013 cases on its active docket at the end of March.

After being released in border communities, families seldom remain there. Since September 2018, 32 courts in 24 states have received at least 100 new family cases. Over half of these cases are before courts headquartered in sanctuary cities. Among the top ten courts where family cases are located, six are usually classified as sanctuary jurisdictions. These courts include those in New York City, San Francisco, Los Angeles and Chicago.

These results are based upon the latest court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

Full data on what happens to families after they are arrested at the border, however, are not available. The Justice Department has now stopped providing TRAC with information needed to track the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review.

In addition, the government admits it lacks the ability to reliably follow cases when they are transferred from one agency to another. Without this information, agency officials are unable to effectively manage the situation. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

For the full report, go to:

https://trac.syr.edu/immigration/reports/556/

In addition, a number of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through March 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

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The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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Senator Ron Johnson (R-WI), the DHS “Advisory Committee,” and other Trump Apologists to the contrary, neither arriving families nor the current asylum law are the problems (except that the Administration fails to apply the current asylum law and procedures fairly). No, the problem is the “malicious incompetence” of the Trump kakistocracy in the White House, at DHS, and in the DOJ.

Democrats must take care not to be “stampeded” by Trump’s bogus White Nationalist narrative (even parroted by some members of the “mainstream press”) into changing asylum laws to further screw asylum seekers. Rather they need to stand firm on insisting that the Trump Administration follow existing laws on asylum, protection of unaccompanied minors, and other forms of humanitarian protection.

There isn’t going to be a “grand bargain’ on immigration until the Trump kakistocracy and its enablers are removed from power. And “border security” does not require a reduction or truncation of the rights of migrants and asylum seekers as a “trade-off” for legalization programs.

Actually, clearing intentionally and maliciously overcrowded Immigration Court dockets of cases of individuals whose removal actually hurts the U.S. and figuring out a way of getting more of these folks we need into the legal immigration system right off the bat (instead of forcing them into the “immigration black market”) are essential parts of any border security program.

What real border security does require is a competent focus on making the asylum adjudication system and the Immigration Court system function in accordance with protection laws, Due Process, and fundamental fairness. A fair, timely, and efficient Immigration Court system serves everyone’s needs, including DHS enforcement.

Fair, impartial, and independent judges who are not controlled by politicos with a White Nationalist agenda would be the basic starting point. It also includes a fair application of the law to include gender based persecution and persecution by gangs and other entities exercising quasi-governmental authority in “failed states.” Indeed, if any “clarifications” are made in asylum law it should be to specifically write these interpretations into the refugee definition as was done by a bipartisan group of legislators in the past who were dissatisfied with the administrative failure to include victims of persecution in the form of coercive family planning in the refugee definition.

PWS

04-21-19

11th CIRCUIT JUDGE ADELBERTO JOSE JORDAN “OUTS” THE ATLANTA IMMIGRATION COURT FOR EQUAL PROTECTION CHARADE IN A DISSENTING OPINION! — — “In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. . . . If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.” — Colleagues Tank & Ignore Constitution With Feeble “Head In Sand” Approach

201714847

Diaz-Rivas v. U.S. Att’y Gen., 11th Cir., 04-18-19, unpublished, Jordan, Circuit Judge, concurring and dissenting

Here’s Judge Jordan’s separate concurring and dissenting opinion:

I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
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that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
20

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‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
21

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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22

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even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
23

I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
Case: 17-14847 Date Filed: 04/18/2019 Page: 20 of 42
that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
20

Case: 17-14847 Date Filed: 04/18/2019 Page: 21 of 42
‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
21

Case: 17-14847 Date Filed: 04/18/2019 Page: 22 of 42
B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22

Case: 17-14847 Date Filed: 04/18/2019 Page: 23 of 42
even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
23

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disappearance to the authorities. These events transpired quickly, as the brother-in- law refused to pay MS-13 sometime in March of 2015, he was “disappeared” around March 16, 2015, and the family reported his disappearance the very next day.
The BIA, in affirming the IJ’s determination that Ms. Diaz-Rivas failed to establish the required nexus between her persecution and family ties, determined that the predominant reason why MS-13 threatened Ms. Diaz-Rivas and her family was because they involved the authorities. But the BIA committed an error of law by failing to conduct a proper mixed-motive analysis. Based on my review of the record, there is no way to accurately determine which reason was more or less MS- 13’s motivation, and the “at least one central reason” standard does not require us— or Ms. Diaz-Rivas—to attempt such a futile endeavor. Again, Ms. Diaz-Rivas did not need to show that her kinship was MS-13’s primary or dominant motivation. See Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41. Because the BIA and IJ misapplied the relevant legal standard, I would reverse and remand for application of the correct standard.
A
Like the IJ and the BIA, the majority concludes that Ms. Diaz-Rivas’ family ties were not “central,” but it articulates a slightly different rationale. The majority rules that “central” means “essential,” and concludes that Ms. Diaz-Rivas’ family
24

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ties were not essential to her persecution because MS-13 would have persecuted her regardless of her family’s refusal to pay rents due to the fact she reported her brother- in-law’s disappearance to the authorities. See Maj. Op. at 12–13. As I read its opinion, the majority essentially creates a rule that, if an unprotected ground would have been independently sufficient to instigate the applicant’s persecution, then the protected reason claimed by the applicant cannot be “central.” The majority cites no authorities to support such a rule, and the case it does rely on does not even interpret the “at least one central reason” standard. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007).
On its face, the majority’s rule replaces the phrase “at least one central” in the statute with the word “essential.” See Maj. Op. 11. In doing so, the majority relies on the fact that Ms. Diaz-Rivas used the word “essential” in her reply brief. Id. But we are not bound by a party’s concession in our interpretation of a statute. See Massachusetts v. United States, 333 U.S. 611, 624–25 & n.23 (1948). That is because “[w]e do not cede our authority to interpret statutes to the parties or their attorneys.” See Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1255 (11th Cir. 2015) (Ed Carnes, C.J., dissenting). For example, the majority’s interpretation of the “at least one central reason” may not apply to a future litigant who clearly articulates that “essential” is merely a synonym for “central” and not a wholesale replacement for the standard. I agree that synonyms can be helpful in understanding
25

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the terms in a statute, but if Congress intended for us to consider whether an unprotected reason would have independently caused the applicant’s persecution, it could have (and, I submit, would have) used the term “essential.” It did not. Just as we do not “soften the import of Congress’ chosen words even if we believe the words lead to a harsh outcome,” we should not exchange Congress’ chosen words when the text is actually beneficial to the litigant. See Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004).
Barring an applicant from protection based on the existence of an unprotected ground takes the statute’s “at least one central reason” standard and recasts it into a “the central reason” standard. See Acharya, 761 F.3d at 299. In practice, the majority’s proposal requires the applicant to show that the protected reason is the persecutor’s “primary” or “dominant” reason. Both of these are improper. See id.; Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41.
B
The Fourth Circuit, in multiple cases, has considered whether family ties were “at least one central reason” for MS-13’s decision to persecute an applicant. These cases include Salgado-Sosa v. Sessions, 882 F.3d 451, 457–59 (4th Cir. 2018); Zavaleta-Policiano, 873 F.3d at 247–49; Cordova v. Holder, 759 F.3d 332, 339–40
26

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(4th Cir. 2014); and Crespin-Valladares v. Holder, 632 F.3d 117, 127–28 (4th Cir. 2011). See also Hernandez-Avalos, 784 F.3d at 949 (concerning the “Mara 18” gang). These decisions run contrary to the majority’s analysis here.
For example, in Salgado-Sosa, 882 F.3d at 457–59, the Fourth Circuit reviewed the BIA’s determination that the applicant’s family ties were not a central reason for his persecution. There, the applicant and his family refused to pay MS- 13’s “war tax,” causing the gang to attack the family. See id. at 454. The applicant and his stepfather reported one attack to the police and later testified against the gang. See id. In retaliation, the gang attacked the applicant’s family home and the family fought back, injuring at least one of the gang members. See id. The IJ concluded, and the BIA affirmed, that the gang was motivated by the applicant refusing to pay the tax and taking action against the gang, as opposed to his family ties. See id. at 455–456. The Fourth Circuit reversed. Although informing the police, testifying, and fighting back against MS-13 were among the motives to persecute the applicant, the Fourth Circuit concluded that “[t]he record compels the conclusion that at least one central reason for [the applicant’s] persecution is membership in his family[.]” Id. at 453, 457–58. In my mind, Salgado-Sosa is virtually indistinguishable from the facts here, and I would follow it. See also Crespin-Valladares, 632 F.3d at 127 (holding that the BIA erred by concluding that
27

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the applicant’s relation to a witness who testified against MS-13 was not a central reason because the gang was also motivated by the applicant’s own testimony).
In Hernandez-Avalos, 784 F.3d at 947, the applicant applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. The BIA found that her relationship with her son was not a central reason the gang persecuted her, and that she was threatened “because she would not consent to her son engaging in a criminal activity.” Id. at 949. The Fourth Circuit rejected the BIA’s “excessively narrow reading” of the standard and said that it relied on “a meaningless distinction under the facts.” Id. at 949, 950. It then concluded that the applicant satisfied the nexus requirement because her relation to her son was at least one of “multiple central reasons for the threats [she] received.” Id. at 950 (emphasis added). See also Cordova, 759 F.3d at 339–40.
Cases applying the “at least one central reason” standard to other protected grounds similarly contradict the majority’s interpretation. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (sexual orientation); Oliva, 807 F.3d at 58, 60–61 (moral and religious beliefs); Castro v. Holder, 597 F.3d 93, 100–01 (2d Cir. 2010) (political opinion); De Brenner, 388 F.3d at 635–37 (political opinion). In these cases, our sister circuits ruled that the existence of an unprotected ground “would not be conclusive[.]” Castro, 597 F.3d at 103. That is because an
applicant “need only demonstrate that [her protected reason] was ‘at least one central 28

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reason’ for the abuse; [s]he need not show it was the only reason.” Bringas- Rodriguez, 850 F.3d at 1073.
In all of these cases, the IJ and/or BIA pointed to one or more unprotected reasons why the applicant was persecuted, and in all of these cases, our sister circuits concluded that the IJ and/or BIA interpreted the “at least one central reason” standard too narrowly. The same result, I believe, is warranted here. The majority’s view is irreconcilable with the principles that a protected reason can be one of multiple central reasons and that the existence of an unprotected motive does not preclude the applicant from showing that the protected ground was also central. See, e.g., Hernandez-Avalos, 784 F.3d at 950 (citing Cordova, 759 F.3d at 339).
C
The majority, like the IJ and the BIA, goes to great lengths to assert that Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance was the central reason she was persecuted. See Maj. Op. at 12–14. This misses the point. The text of § 1158(b)(1)(B)(i) compels us to recognize that the existence of an unprotected central reason does not defeat her claim because a second central reason may justify asylum. “When an asylum-seeker claims that a persecutor had multiple motivations, only some of which are based on protected grounds, the immigration judge cannot merely attribute the persecution to a non-protected ground.” Gomez-Rivera v.
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Sessions, 897 F.3d 995, 1000 (8th Cir. 2018) (Kelly, J., dissenting) (citing Marroquin-Ochoma, 574 F.3d at 577). “Rather, it remains necessary to carefully examine the record to determine whether the evidence shows that the persecution also occurred on account of a protected ground.” De Brenner, 388 F.3d at 636.
There is some support for considering whether a particular motive was an independently sufficient reason, but only as applied to the protected reason claimed by the applicant—not to the unprotected one. In Parussimova, 555 F.3d at 741, the Ninth Circuit ruled that a reason is central if (a) “the persecutor would not have harmed the applicant if such motive did not exist,” or (b) “that motive, standing alone, would have led the persecutor to harm the applicant.” The majority cites only the initial portion of the Ninth Circuit’s disjunctive standard, reasoning that MS-13 would have still retaliated against Ms. Diaz-Rivas for her reporting her brother-in- law’s disappearance absent her family ties, but it ignores the second. See Maj. Op. at 11. In addition to not being faithful to what Parussimova held, the majority’s approach fails both in practice and in theory.
First, MS-13 would not have targeted Ms. Diaz-Rivas, for either reason, absent her family ties because she would not have reported her brother-in-law missing absent those family ties. Take Temu v. Holder, 740 F.3d 887, 891–92 (4th Cir. 2014), where the BIA had concluded that the applicant was beaten not due to
his mental illness, but as a result of erratic behavior caused by his mental illness. 30

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The Fourth Circuit reversed, saying that it “struggle[d] to see how a rational factfinder” could reach that conclusion, and that the BIA’s reasoning “demand[ed] logical acrobatics.” Id. at 892. Citing Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance, while discounting the causal relationship between her kinship and that decision, takes an “overly restrictive view of [Ms. Diaz-Rivas’] case.” Oliva, 807 F.3d at 59 (“A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent.”). See also De Brenner, 388 F.3d at 637 (highlighting the BIA’s failure to acknowledge the causal relationship between the protected ground and the unprotected ground); Hernandez-Avalos, 784 F.3d at 950 (same).
Second, the majority fails to consider evidence in the record when it suggests that Ms. Diaz-Rivas never “stat[ed] that her familial connection also mattered to the gang.” See Maj. Op. at 14. During her credible fear interview, Ms. Diaz-Rivas stated that she was being persecuted by MS-13 based on her family ties before she went to the authorities. Specifically, the interviewer asked Ms. Diaz-Rivas whether MS-13 “became upset with your family after you asked for protection from the military.” Ms. Diaz-Rivas responded: “Yes.” The interviewer then clarified by asking: “Was [MS-13] upset with your family once they found out that you had contacted the family [sic] or were they unhappy with you even before that?” Ms. Diaz-Rivas responded: “No, they already were [mad] because they wanted more and
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more rent.” This testimony is supported by the undisputed fact that MS-13 “disappeared” Ms. Diaz-Rivas’ brother-in-law for refusing to pay rents before there was any motive to retaliate against the family for involving the authorities. I note that Ms. Diaz-Rivas also called an expert witness to testify that her family’s refusal to pay rents, apart from going to the authorities, put her at risk of persecution. See W.G.A. v. Sessions, 900 F.3d 957, 966 (7th Cir. 2018) (citing the “timing of the persecution” and expert reports to conclude that the applicant met the nexus requirement). This evidence strongly suggests that “[Ms. Diaz-Rivas’ family ties], standing alone, would have led [MS-13] to harm [her].” Parussimova, 555 F.3d at 741.
Ms. Diaz-Rivas’ statements and expert testimony, to my knowledge, are the only evidence in the record as to whether Ms. Diaz-Rivas would have been persecuted by MS-13 based only on her family ties. But that evidence is not mentioned or discussed, in that context, by the IJ or the BIA. Compare Zavaleta- Policiano, 873 F.3d at 248–49 (concluding that the BIA failed to address the applicant’s statement that MS–13 started threatening her immediately after her father fled to Mexico), with Gomez-Garcia v. Sessions, 861 F.3d 730, 734 (8th Cir. 2017) (affirming the BIA’s conclusion that the applicant’s political affiliation was not central because “[t]here [was] no evidence in the record that MS-13 threatened [the applicants] before they reported [the gang’s] burglary”).
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As the majority points out, we defer to the BIA’s interpretation of the facts, even if our own interpretation would support a different conclusion. We do not, however, defer to the agency’s determination that certain testimony did not warrant consideration. This is especially true if that testimony is the evidence in the record that the applicant’s alleged reason was central to her persecution. See W.G.A., 900 F.3d at 967; Zavaleta-Policiano, 873 F.3d at 248–49. It is our responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).
I also disagree with the majority’s repeated claim that, because MS-13 threatened Ms. Diaz-Rivas after she reported the disappearance, we can necessarily infer that that is the reason that MS-13 persecuted her. See Maj. Op. at 12–13. With our standard of review in mind, the IJ and the BIA did not cite the fact that MS-13 only threatened Ms. Diaz-Rivas after she reported her brother-in-law missing to conclude she did not meet the nexus requirement. Although the IJ and BIA noted the sequence of events leading to Ms. Diaz-Rivas’ claims, the majority now seizes on this undisputed chronological fact to support its new conclusion that Ms. Diaz- Rivas going to the authorities was the only central reason she was persecuted.
Moreover, the short timing between these events makes it impossible to conclude that MS-13 was not also motivated by her family’s refusal to pay rents. In early March of 2015, Ms. Diaz-Rivas’ brother-in-law refused to pay rents, causing
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the gang to quickly threaten and disappear him, and Ms. Diaz-Rivas reported his disappearance the very next day. By comparison, the majority cites Rivera, 487 F.3d at 823, for its timing argument, but in that case the persecution occurred “several years . . . after [the persecutor] would have imputed [the applicant’s] political opinion.” And to the extent that the majority points to Ms. Diaz-Rivas’ “own failure to pay ‘rent’” as another reason why she was persecuted, that argument contradicts the record. See Maj. Op. at 13. The IJ’s order and Ms. Diaz-Rivas’ testimony make clear that Ms. Diaz-Rivas’ brother-in-law, the patriarch of the family, refused to pay rents to MS-13, and Ms. Diaz-Rivas alleges that she was persecuted because of her family’s refusal to pay rents. See A000387, A000391 (“In this case, the respondent was never asked to pay any extortion. The demand was made to Felix, who is respondent’s brother-in-law.”). See also A000089, A000434.
For these reasons, I would hold that the BIA’s determination—that “[t]here is no indication [that MS–13] had an animus against [Ms. Diaz-Rivas] and her family members based on their biological ties, historical status, or other features unique to the family unit”—misapplies the “at least one central reason” standard and is not based on substantial evidence. I would therefore reverse the BIA’s determination that Ms. Diaz-Rivas’ family ties were not at least one central reason for her
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persecution and remand the case for the BIA to determine whether her family unit is a “particular social group” under the statute.1
III
Ms. Diaz-Rivas also contends that the Atlanta immigration court treats asylum claims dissimilarly compared to immigration courts around the country, in violation of her equal protection rights under the Fifth Amendment. Ms. Diaz-Rivas raised the same equal protection claim before the BIA, but the BIA dismissed it, stating that it “lack[ed] the authority to consider [it].” The BIA cited Matter of C-, 20 I. & N. Dec. 529, 532 (1992), where it ruled that an IJ and the BIA “lack jurisdiction to rule upon the constitutionality of the [Immigration and Nationality] Act and the regulations.” See also Johnson v. Robinson, 415 U.S. 361, 368 (1974) (noting “the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies”) (alteration omitted).
1 The majority notes that I do not resolve whether Ms. Diaz-Rivas’ family constitutes a “particular social group.” See Maj. Op. at 10 n.3. It seems to me that this is the correct approach. Like other circuits that have faced this issue, I would remand it to the BIA. See Oliva, 807 F.3d at 62; Flores- Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (collecting cases where the BIA addressed whether family was a particular social group). In any event, “every circuit to have considered the question has held that family ties can provide a basis for asylum.” Crespin–Valladares, 632 F.3d at 125. See also Matter of L-E-A-, 27 I. & N. Dec. 40, 43 (BIA 2017) (citing cases from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits). So, if the majority is looking for legal guidance on this issue, there is plenty of it.
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The prohibition on Article I tribunals adjudicating the constitutionality of a congressional enactment does not bar consideration of Ms. Diaz-Rivas’ equal protection claim. Ms. Diaz-Rivas does not argue that a federal law is unconstitutional, but rather that a particular immigration court is unconstitutionally discriminating against asylum applicants in the way that it applies a federal law. See McGrath v. Weinberger, 541 F.2d 249, 251 (10th Cir. 1976) (“A fundamental distinction must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation . . . . We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation.”) (quoting 3 K. Davis, Administrative Law Treatise § 20.04, at 74 (1958)). See also Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136, 1139 (3d Cir. 1979) (concluding that an Article I review commission had jurisdiction to consider a motion to suppress under the Fourth Amendment “not by reviewing the constitutionality of its statute but by interpreting the statute and by applying constitutional principles to specific facts”).
Based on my understanding of the relevant law, there is no general prohibition on the BIA considering constitutional issues, apart from constitutional challenges to particular statutes which would raise separation of powers concerns. In fact, the BIA has ruled on similar constitutional challenges in the past. See Matter of Awadh, 15
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I. & N. Dec. 775, 777 (BIA 1976) (ruling on the respondent’s claim that an IJ enforced a statute discriminatorily, but stating that it lacked jurisdiction to consider the constitutionality of the same statute). And other BIA opinions suggest that it has jurisdiction to consider some equal protection claims. See In Re Salazar-Regino, 23 I. & N. Dec. 223, 231–32 (BIA 2002); In Re Delia Lazarte-Valverd, 21 I. & N. Dec. 214, 219–21 (BIA 1996) (Schmidt, Chairman, concurring); Matter of Moreira, 17 I. & N. Dec. 370, 373 (BIA 1980); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). See also Matter of Gutierrez, 16 I. & N. Dec. 226, 227 (BIA 1977) (considering a Sixth Amendment claim).
In any event, we have jurisdiction to review constitutional claims raised during immigration proceedings. See 8 U.S.C. § 1252(a)(2)(D) (allowing the appropriate court of appeals to “review [ ] constitutional claims or questions of law raised upon a petition for review”); Moore v. Ashcroft, 251 F.3d 919, 923–24 (11th Cir. 2001) (considering an equal protection claim on appeal from the BIA). On appeal, Ms. Diaz-Rivas requests that we remand her asylum claims to the immigration court in San Francisco, California, where her attorneys are located. Although I do not believe we have ordered or encouraged the BIA to remand a case to another immigration court, at least one court has afforded similar relief. See Floroiu v. Gonzalez, 481 F.3d 970, 976 (7th Cir. 2007) (per curiam) (“strongly encourag[ing] the BIA to assign the [applicants’] case to a different judge on
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remand”); 28 U.S.C. § 2106 (granting appellate courts the power to “require such further proceedings to be had as may be just under the circumstances”).2
The due-process clause of the Fifth Amendment contains an implied equal protection component that prevents federal government officials from acting with discriminatory animus. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). “The constitutional guarantee of equal protection under the law has been held applicable to aliens as well as citizens for over a century.” Yeung v. I.N.S., 76 F.3d 337, 339 (11th Cir. 1995), as modified on reh’g (11th Cir. 1996) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886)). See also Plyler v. Doe, 457 U.S. 202, 210 (1982)
2 Another avenue for relief may be for Ms. Diaz-Rivas to file an action in an appropriate federal district court. For example, 5 U.S.C. § 702—a provision of the Administrative Procedure Act— provides that “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof, and [a]n action in a court of the United States seeking relief other than money damages and stating a claim” is not barred by sovereign immunity. A separate provision of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity[.]” § 706(2)(B). District courts have considered similar constitutional claims as violations of these provisions. See Stevens v. Holder, 950 F. Supp. 2d 1282, 1290–91 (N.D. Ga. 2013) (concluding that the plaintiff stated an equal protection claim based on an immigration judge excluding the plaintiff from certain hearings). See also CASA de Md., Inc. v. Trump, — F. Supp. 3d —, 2018 WL 6192367, at *1 (D. Md. Nov. 28, 2018) (claim that the government discriminatorily altered Temporary Protected Status designations, in violation of equal protection and the APA); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1092 (N.D. Cal. 2018) (same); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414 (D. Mass. 2018) (same). The possible existence of another avenue for relief, however, does not foreclose Ms. Diaz-Rivas’ current equal protection claim. In Babcock & Wilcox Co., 610 F.2d at 1136, for example, a party argued that an Article III court, as opposed to an Article I review commission, could better develop the factual record for a Fourth Amendment challenge to a search warrant. The Third Circuit disagreed, stating that the Article I commission could “consider motions to suppress evidence without acting beyond its jurisdiction.” Id. at 1139.
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(“[W]e have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.”). In this context, the Fifth Amendment protects an asylum applicant from “be[ing] intentionally treated differently from others similarly situated [when] there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
The majority concludes that Ms. Diaz-Rivas’ equal protection claim is foreclosed by binding precedent and that she failed to present evidence of discriminatory intent. I strongly disagree on both grounds: the precedent does not govern, and the evidence is more than sufficient.
First, the majority mistakenly relies on two published cases in which we have denied equal protection claims alleging that the Atlanta immigration court treated asylum applicants dissimilarly compared to other immigration courts. See Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218–19 (11th Cir. 2006); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006). Those cases do not control. In Zafar, 461 F.3d at 1367, we affirmed the dismissal of the petitioner’s claim that the Atlanta immigration court failed to administratively close certain immigration proceedings, when other immigration courts routinely did. We reasoned that the petitioner cited no authority to establish an equal protection violation and that there
was “no support in the record” for his argument. Id. A year later, in Haswannee, 39

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471 F.3d at 1218–19, we rejected an almost identical claim for the same reasons, citing our holding in Zafar.
Unlike the petitioners in Haswanee and Zafar, Ms. Diaz-Rivas has cited authority, outlined the relevant legal framework, and presented evidence to establish her equal protection claim. She alleged that (a) asylum applicants are treated differently at the Atlanta immigration court compared to immigration courts in other cities, and (b) the difference in treatment is for the purpose of discrimination. Ms. Diaz-Rivas then presented statistics showing that, from 2014 through 2016, the Atlanta immigration court only granted 2% of asylum claims while, over the same three-year period, immigration courts around the U.S. collectively granted 46% of asylum claims. These statistics did not exist when we rejected different (and conclusory) claims in Haswannee, 471 F.3d at 1218–19, and Zafar, 461 F.3d at 1367. That, by itself, makes Haswanee and Zafar distinguishable.
Second, Ms. Diaz-Rivas’ statistics constitute probative evidence of disparate treatment and discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 297–98 (1987); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977). “Of course, statistics do not tell the whole story.” United States v. City of Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980). “Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers [may]
afford at best an incomplete picture.” Harris v. Alabama, 513 U.S. 504, 513 (1995). 40

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But “while statistics alone usually cannot establish intentional discrimination, under certain limited circumstances they might.” Spencer v. Zant, 715 F.2d 1562, 1581 (11th Cir. 1983). See also Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982). “Sometimes a clear pattern, unexplainable on grounds other than [discrimination], emerges from the effect of the [government] action even when the governing legislation appears neutral on its face.” Arlington Heights, 429 U.S. at 266. In those cases, statistics showing discriminatory treatment can be “a telltale sign of purposeful discrimination.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977).
In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.
The government may well be able to explain why asylum applicants so rarely succeed in Atlanta, and, because undocumented immigrants are not a suspect class, any disparate treatment “[is] subject to minimal scrutiny under the rational basis standard of review.” Yeung, 76 F.3d at 339. At this stage, however, I am not aware
of a convincing basis to explain the disparity that Ms. Diaz-Rivas presents, and the 41

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government has not offered one. At the very least, these troubling statistics “indicate plainly enough that this Court should not accept,” United States v. Bethlehem Steel Corp., 315 U.S. 289, 333 (1942) (Frankfurter, J., dissenting), the government’s conclusory argument that this disparity merely results from “the inherent human biases of all judges.” Appellee’s Br. at 36. I add that, even if the government’s unsupported suggestion has a hint of truth, the situation remains deeply troubling, as it would appear that the immigration judges in Atlanta are inherently biased (the government’s phrasing) against asylum applicants in the same way.
On remand, I would order the BIA to consider the merits of Ms. Diaz-Rivas’ equal protection claim or further justify its conclusion that it lacks the jurisdiction to do so. To do otherwise is to ignore the very real possibility that “[a]ll is not well” in the Atlanta immigration court. William Shakespeare, Hamlet, Act I, Scene 2, Line 254 (1601).
IV
With respect, I dissent from the majority’s interpretation of the “at least one central reason” standard and its resolution of Ms. Diaz-Rivas’ equal protection claim.

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

In truth, this well-documented family-based persecution case should have been granted and probably would have been granted in many Immigration Courts. But, instead of being granted the protection she deserved, this respondent was subjected to the notorious “asylum free zone” created by the judges of the Atlanta Immigration Court, enabled by the BIA, promoted by the DOJ, and encouraged and empowered by some Article III Circuit Judges.

As cogently pointed out by Judge Jordan, his colleagues 1) grossly misconstrued and rewrote the “one central reason” provision of the asylum statute against the respondent, and 2) swept under the carpet the glaring evidence of constitutional violations of equal protection by EOIR, the Atlanta Immigration Court, the BIA, and the DOJ. To make matters worse, instead of taking the bold public action necessary to stop these outrageous legal and constitutional abuses, the majority made this an “unpublished” decision to obscure the unseemly evidence of what they were doing.

Significantly, in his footnote 2, Judge Jordan points out that there could be other means of challenging the Atlanta Immigration Court’s unconstitutional actions: through an APA action in U.S. District Court. Advocates should vigorously pursue all possible avenues to bring an end to this well-documented abuse of authority in Atlanta (and some other Immigration Courts with asylum grant rates so unrealistically low as to show a pattern of anti-asylum bias.)

And what is the purpose of the BIA if it fails to address chronic “refugee roulette” and unconstitutional behavior by Immigration Judges? Not much that I can see!

Might as well save time and money and just send all appeals from Immigration Judges to the U.S. Circuit Courts of Appeal. End the charade that the BIA is some sort of “expert tribunal” whose decisions are entitled to “deference.” Obviously, Judge Jordan understands immigration and constitutional law much better than the BIA (and his colleagues in the majority) and has the courage to speak out against glaring judicial abuses and lack of professionalism among some Immigration Judges that the BIA tolerates and the DOJ actively encourages.

The majority’s clearly flawed decision could be a “death warrant” for an innocent woman entitled to our protection. Worse yet, miscarriages of justice such as this directed against vulnerable asylum seekers go on every day at every level of our justice system. They advance the Administration’s “Big Lie”– that most asylum seekers from the Northern Triangle do not have valid claims for asylum. To the contrary, many of the claims are valid — but, the judicial system for adjudicating them is not valid — it isn’t fair, and it isn’t impartial as this case well illustrates.

Under a fair, impartial, and objective judicial system, many more claims like this from the Northern Triangle  would be granted — perhaps a majority. But we can’t tell because the current system is so unfairly biased against asylum seekers. There is no doubt that there would be more grants than are happening today.

Indeed, many observers are failing to ask the real questionswith conditions for refugees worsening throughout the world, why are U.S. asylum grant rates inexplicably falling?  Why are such a low percentage of individuals determined to have “credible fear” of persecution eventually granted asylum by Immigration Judges?

Rather than the bogus narratives being presented by the Administration and repeated by folks like Senator Ron Johnson (R-WI) that the system is being “gamed” by asylum seekers, there appears to be a much more reasonable explanation — that the EOIR system has been “gamed” by anti-asylum politicos in this and previous Administrations to artificially and illegally suppress asylum grant rates by Immigration Judges particularly for women, children, and other vulnerable individuals from the Northern Triangle.

Cases like Ms. Diaz-Rivas’s are actually fairly common. Granting them in accordance with law would send the proper signals and would actually lead to a fairer and more efficient system where asylum law would be correctly applied and many more cases could be granted by Asylum Officers without ever reaching Immigration Court or granted in short hearings before Immigration Judges actually committed to giving asylum seekers a fair shake.

Beneath all of the intentionally cruel and unnecessary detention, coercion, deprivation of counsel, hate narratives, and failures of due process and professionalism in our treatment of asylum seekers lies an even uglier truth: judges at all levels of our system, often at the urging of political officials, are encouraged and enabled to skew, misinterpret, and misapply the law and often distort facts to deny protection that should be granted in a fair and impartial system. 

It’s important that cases like this one be “brought into the light” and that judicial abdications of duty be documented. The New Due Process Army is making the historical record of how asylum seekers are being mistreated and will keep confronting judges and legislators with the facts, evidence, and the law until the system finally delivers on its unfulfilled promise “of guaranteeing fairness and Due Process for all” — and that means granting legal protection to even the most vulnerable and endangered among us! The only question is how many innocents will die, be raped, beaten, tortured, extorted, exploited, imprisoned, forced to live underground, or otherwise persecuted and abused before our system finally gets it right?

PWS

04-20-19