🇺🇸🗽⚖️🦸🏼‍♀️🎖RECOGNIZING AN AMERICAN HERO & DUE PROCESS MAVEN, ANNE PILSBURY! — Hon. “Sir Jeffrey” Chase’s Heartfelt Tribute — “Those of us who care about people on the wrong side of history just have to help case by case, person by person.” (Corrected Version)

Anne Pilsbury ESQUIREAmerican Legal Superhero
PHOTO: Courtesy of Jeff Chase
Anne Pilsbury ESQUIRE
American Legal Superhero
PHOTO: Courtesy of Hon. Jeffrey Chase

UPDATE & CORRECTED WITH PICTURE OF THE “REAL” ANNE PILSBURY — THANKS TO SIR JEFFREY!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2023/1/18/thanking-anne-pilsbury

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Thanking Anne Pilsbury

“Those of us who care about people on the wrong side of history just have to help case by case, person by person.” – Anne Pilsbury, quoted in Francisco Goldman, “Escape to New York,” The New Yorker, Aug. 9, 2016.

Anne Pilsbury is well; she continues to work at Central American Legal Assistance (“CALA”), the organization she founded almost four decades ago. She was recently awarded the Carol Weiss King Award by the National Immigration Project of the National Lawyers Guild. She remains most generous in sharing her knowledge with the immigration law community in New York.

However, as of January 1, Anne has stepped down from CALA’s helm, passing the Directorship of the organization to the extremely talented Heather Axford.

It thus seems like an appropriate time to honor Anne’s extraordinary career. Her path from Washington, D.C. to Maine “country lawyer” to representing asylum-seekers in Williamsburg, Brooklyn is a fascinating one. It began with Anne’s role as plaintiff’s counsel in Hobson v. Wilson,1 a remarkable case having nothing to do with immigration law.

Hobson involved a top-secret FBI operation of the late-1960s to early-1970s called COINTELPRO, which targeted civil rights groups seeking racial equality, and another set of organizations actively opposing the Vietnam war. COINTELPRO specifically listed the Southern Christian Leadership Conference led by Rev. Martin Luther King, Jr., and the Student Nonviolent Coordinating Committee as primary targets.

In the words of the D.C. Circuit Court of Appeals, COINTELPRO focused on “(1) efforts to create racial animosity between Blacks and Whites; (2) interference with lawful demonstration logistics; (3) efforts to create discord within groups or to portray a group’s motives or goals falsely to the public; and (4) direct efforts to intimidate the plaintiffs.”2

Regarding the degree of those efforts, according to a 1976 Senate Select Committee Report

From December 1963 until his death in 1968, Martin Luther King, Jr. was the target of an intensive campaign by the Federal Bureau of Investigation to “neutralize” him as an effective civil rights leader. In the words of the man in charge of the FBI’s “war” against Dr. King:

No-holds were barred. We have used [similar] techniques against Soviet agents. [The same methods were] brought home against any organization against which we were targeted. We did not differentiate. This is a rough, tough business.3

Beginning her work on the case as a law student in D.C. and continuing with the case while in private practice in D.C., Anne and her co-counsel brought suit against the FBI for systemically violating their clients’ “constitutional rights, individually and through conspiracies, while plaintiffs engaged in lawful protest against government policy in the late 1960’s and in the 1970’s in the Washington area.”4   After a 17 day trial, Anne and her colleagues won the suit. In my view, that case alone earned Anne membership in the Due Process Army Hall of Fame.

During the time Hobson was being litigated, Anne moved to Maine, opening her own practice there in the town of Norway (pop. 5,000), traveling back and forth to D.C. for the Hobson trial. So then how did she end up in Brooklyn representing asylum seekers?

Anne explained to me that the government appealed the Hobson decision to the D.C. Circuit (in 1982), after which Anne began traveling to the New York City offices of the Center for Constitutional Rights, who served as her co-counsel on the appeal. And finding some time on her hands during the two-year pendency of that appeal allowed Anne to pursue her interest in helping those fleeing civil war in Central America, which was an issue very much in the news at the time. Although Anne found groups dedicated to the issue itself, she was less successful in locating organizations actually providing representation to immigrants from Central America.

Anne continued that INS was detaining Central Americans at that time in the Brooklyn Navy Yard.5 Anne learned that a local Catholic priest and nun, Father Bryan Karvelis and Sister Peggy Walsh, were visiting those detainees, sometimes paying the bond for their release; they even housed those who had nowhere to stay in the rectory of their Brooklyn church. And Sister Peggy had obtained accredited representative status, allowing her to represent individuals before the government.

In Anne’s words, after litigating against the FBI in Hobson, she naively thought that by comparison, dealing with INS “would be a piece of cake.” Between briefs in Hobson, Anne  organized a group of pro bono lawyers to represent Central Americans in applying for asylum under the brand-new 1980 Refugee Act. Anne spent the first year working out of her car, after which Father Bryan offered her space in the Transfiguration Church on Hooper Street, where CALA remains located to this day.

Anne thus began CALA with no funding, paying a secretary herself, and working without a salary for about two years. In a wonderfully ironic twist, CALA’s first funding came from Anne’s attorney fees in Hobson, thus making the FBI CALA’s first major benefactor.

Interestingly, Anne explained that it took a few years before the newly created EOIR began to hear Central American cases in earnest; in the early 1980s, the federal government somehow believed that the problems in the region would be over in a year or two.

Once they did begin hearing Central American cases, the Immigration Judges of that time denied virtually all of their asylum claims, generally doing so by incorrectly classifying the feared harm as “random violence.” In spite of the new asylum law intended to make adjudications fairer and free of political influence, it took years before Anne won her first asylum case.

And yet Anne persevered, building a model program and recruiting and mentoring outstanding lawyers. Anne also challenged EOIR’s misguided decisions and policies in the federal courts.

I want to make it clear that I had not included this next anecdote in my initial draft; it is being added at Anne’s own request. But while fighting to prevent the deportation of factory workers illegally arrested in a workplace raid, a March 1988 conference before U.S. District Court Judge Mark A. Constantino apparently became quite heated, resulting in the judge holding Anne in criminal contempt of court. That order was overturned by the Second Circuit in Matter of Pilsbury.6 The Second Circuit decision contained the following quote directed at Anne by Judge Constantino:

You go practice your shabby law somewheres [sic] else. Don’t you dare practice it in the Eastern District. You no longer will be permitted to practice in any part of this court. You will not be able to practice in this court or the immigration service. This court will see to it.7

Judge Constantino’s words turned out to be about as accurate as the Department of Justice’s belief that the turmoil in Central America would settle down after a few months. Some thirty-five years later, Anne’s impact on asylum case law has been nothing less than remarkable.

In 1994, in the case of Osorio v. INS,8 Anne prevailed in challenging the BIA’s determination that a labor union leader’s fear of persecution in Guatemala was not on account of his political opinion because, as a labor union leader, his point of dispute with the Guatemalan government was economic, not political.

In reversing the BIA’s conclusion, the Second Circuit quoted a statement made by Anne at oral argument, which became one of the most famous lines in asylum law history: that according to the BIA’s view, the Nobel Prize winning Soviet novelist and renowned dissident “Aleksandr Solzhenitsyn would not have been eligible for political asylum because his dispute with the former Soviet Union is properly characterized as a literary, rather than a political, dispute.”9

The court agreed with Anne that “Regardless of whether their dispute might have been characterized as a literary dispute, it might also have been properly characterized as a political dispute.”10 The Osorio decision remains extremely relevant today for its expansive view of what constitutes “political opinion” for asylum purposes, and for recognizing that nexus can be satisfied where the persecution is on account of mixed motives, a concept later codified by Congress.

A month earlier, in the case of Sotelo-Aquije v. Slattery,11  Anne had won a Second Circuit victory for a community leader from Peru who was denied asylum by the BIA in spite of being at risk of violence for speaking out against the Shining Path.

Also in 1994, Anne prevailed before the Ninth Circuit in a case called Campos v. Nail,12 challenging an Immigration Judge’s pattern or practice of denying all motions for change of venue filed by Salvadoran and Guatemalan asylum seekers who had not established a U.S. address prior to their arrest by the INS.  In applying this policy without consideration of the individual’s circumstances, the IJ forced respondents who had long settled thousands of miles away to return at no small expense to Arizona for their hearings, or face an in absentia deportation order if unable to do so. The Ninth Circuit agreed with Anne that the policy violated the petitioners’ “statutory and regulatory rights to be assured a reasonable opportunity to attend their deportation hearings and to present evidence on their own behalf,” which “in turn interfered with the plaintiffs’ statutory and regulatory rights to apply for asylum and to obtain representation by counsel at no expense to the government.”13

Anne later won two cases before the Second Circuit creating important protections for asylum seekers in establishing their credibility before Immigration Judges. The precedent decisions in Alvarado-Carillo v. INS,14 and Secaida-Rosales v. INS15 rejected the application of an inappropriate standard relying on speculation or conjecture in rejecting an asylum applicant’s credibility, and required that such determinations be based on facts material to the claim. However, in noting how difficult keeping such gains can be, Anne pointed to the fact that both of these decisions were specifically cited with disapproval by Congress in its subsequent amendments contained in the 2005 REAL ID Act giving Immigration Judge greater leeway to deny asylum based on credibility or corroboration.

In 2006, Anne won an important case recognizing that a different standard applies when determining persecution to children. In Jorge-Tzoc v. Gonzales,16 the Second Circuit held that harm that had not been found to rise to the level of persecution to an adult “could well constitute persecution to a small child totally dependent on his family and community.” The court also cited INS’s asylum guidelines for children recognizing that “The harm a child fears or has suffered, however, may be relatively less than that of an adult and still qualify as persecution.”17

I’ve just mentioned some of the highlights from Anne’s career. From her office inside the Transfiguration Church, the entity Anne founded has assisted thousands of immigrants over the years. And CALA has very much remained focused on the community it serves; as Anne says, that is very much by choice. Among those serving on the organization’s Board of Directors are early clients of CALA, along with former staff.

The community connection is not limited to people. The CALA website lists among its staff, photo and all, “Oscar Gerardi Caceres the Cat,” an actual cat rescued by Anne (as opposed to an attorney with a cat filter), whose responsibilities are listed as “greeting clients, inspecting files, and prowling the office as our security guard.” It must be pointed out that this whimsical entry also carries a far more serious meaning, as the office cat has been named to honor the memory of three fallen leaders of the decades-long violence in Central America:  Msgr. Oscar Romero (killed in 1980 in El Salvador), Berta Caceres, an environmental activist and indigenous leader killed in Honduras in 2016, and Bishop Juan Gerardi, killed in Guatemala in 1998 right after releasing the church’s devastating truth commission report on military atrocities.

Over the years, I have left every conversation with Anne having learned something important. Anne has a casual, often direct way of speaking; her words can be simultaneously remarkably simple and deeply profound.

I offer as an example this quote of hers from the same 2016 New Yorker article quoted above:

“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”

In 2006, the block of Marcy Avenue on which the Transfiguration Church sits was named “Msgr. Bryan J. Karvelis Way.” I found online remarks made by City Council Member Diana Reyna during the meeting at which the naming was voted upon. Those remarks included the following:

Brooklyn parishes, like their neighborhoods, have gone through a lot of changes over the years. But one thing remains constant: in a Diocese of Immigrants, they continue to reach out to the latest newcomers, and make a home for them. Transfiguration parish is a superb example of this, and today is a good day to celebrate its history.

In paying tribute to Father Bryan, those remarks are no doubt also a tribute to the work of Anne and CALA over the past 40 years.

Please join me in thanking Anne Pilsbury profoundly, and wishing her all of the best  her future pursuits.

Notes:

  1. 737 F.2d 1 (D.C. Cir. 1984).
  2. Id. at 11.
  3. Senate Select Committee, Book III: Supplementary Detailed Staff Reports, 94th Cong., 2d sess., 1976, S. Rep. 94-755 at 81; https://www.intelligence.senate.gov/sites/default/files/94755_III.pdf
  4. Hobson v. Wilson, 556 F. Supp. 1157, 1163 (D.D.C. 1982).
  5. Just to give out-of-town readers a sense of change over Anne’s career, the Brooklyn Navy Yard presently includes the largest movie studio outside of Hollywood; a large number of innovative tech start-ups, and a Wegman’s Supermarket.
  6. 866 F.2d 22 (2d Cir. 1989).
  7. Id. at 22.
  8. 18 F.3d 1017 (2d Cir. 1994).
  9. Id. at 1028-29.
  10. Id. at 1029.
  11. 17 F.3d 33 (2d Cir. 1994).
  12. 43 F.3d 1285 (9th Cir. 1994).
  13. Id. at 1291.
  14. 251 F.3d 44 (2d Cir. 2001).
  15. 331 F.3d 297 (2d Cir. 2003).
  16. 435 F.3d 146 (2d Cir. 2006).
  17. Id. at 150.

Copyright 2023 Jeffrey S. Chase. All rights reserved. Republished by permission.

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Congratulations, Anne, on an amazing career — one that continues on in a different role! You are what real leadership and courage are all about! 

Building a better America, “case by case, person by person.” I used to say that to folks in court during my days on the bench. It was a “team effort” that included everyone in the courtroom.

Also, thanks to Jeffrey for such a moving and elegantly written portrait of a real American patriot. Giving thanks and recognizing those who have “paved the way” and supported our common values and ideals is an oft-overlooked value in and of itself.

The Biden Administration and Dems generally are notoriously bad in this area. That’s particularly and painfully evident when it comes to those who “held the line” on our Constitution, democracy, and human rights — at a time when many of those leaders and politicos who would benefit were nowhere to be found “in the trenches” of defending and promoting social justice in the face of the Trump/GOP onslaught.

This is my favorite quote from Jeffrey’s profile of Anne:

“I never expected it to take so long for our government to wake up to what was happening in Central America, and to stop funding militaries and wars, and stop blaming immigrants for trying to save their own lives….Thirty years later, I’m no longer so optimistic, I don’t expect people here to learn from history anymore. Of course, you never stop hoping they will, when the lessons are so obvious.”

Clearly, Biden, Harris, Mayorkas, Garland, a number of Dem politicos, Federal Judges at all levels, and many members of the so-called “mainstream media” neither learned nor heeded the obvious lessons of history. They also ignored the law in their disgraceful “rush to reject rather than protect!”

They keep “blaming the victims” for saving their own lives, ignoring our nation’s failure to live up to our humanitarian commitments, and violating our statutes and Constitutional guarantees of the right to apply for asylum and receive a fair adjudication of claims. It’s as if World War II, Hitler, the Holocaust, and its aftermath  have been “written out” of our history — mainly by the GOP but also disturbingly by some Democrats and members of the Biden Administration.

Also, many congratulations to “rising NDPA superstar” Heather Axford on her appointment as the new Director of CALA! Heather has already “creamed” the DOJ in the notable case of Hernandez-Chacon v. Barr. See, e.g., https://wp.me/p8eeJm-52n. That case is basically a compendium of why EOIR is failing, both legally and operationally. 

Heather Axford
Heather Axford
Director
Central American Legal Assistance
Brooklyn, NY

Yet, disgracefully, rather than “tapping into” the expertise and organizational talents of Heather, Anne, and their NDPA colleagues, Garland and his team are presiding over the “death spiral” of EOIR — endangering our entire U.S. justice system and threatening and degrading human lives!

I’m proud to say that Heather “got her start” practicing before the “Legacy” Arlington Immigration Court with the Law Offices of Alan M. Parra following her graduation from UVA Law! I know that Heather will carry on and build upon Anne’s humanitarian legal legacy and leadership example at CALA!

🇺🇸 Due Process Forever!

PWS

02-19-23

  

2D CIR. FAULTS BIA’S INCORRECT ANALYSIS OF SALVADORAN WOMAN’S GANG-BASED POLITICAL OPINION ASYLUM CLAIM — Decision Reveals Much Deeper Problems With Politicized & Weaponized Immigration Courts, Lack Of Basic Expertise, Analytical Failures, Systemic Anti-Asylum Bias, Lack Of Due Process & Fundamental Fairness That Article III Courts Are Failing To Effectively Address — Hernandez-Chacon v. Barr — Bonus “PWS Mini-Essay” — “WHY ‘NIBBLING AROUND THE EDGES’ BY ARTICLE IIIs WON’T SOLVE THE CONSTITUTIONAL & HUMAN RIGHTS DISASTERS IN OUR IMMIGRATION COURTS NOR WILL IT RELIEVE THE ARTICLE IIIs FROM RESPONSIBILITY”

http://www.ca2.uscourts.gov/decisions/isysquery/7536540c-4285-4262-84b6-e0454e2e1b83/1/doc/17-3903_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7536540c-4285-4262-84b6-e0454e2e1b83/1/hilite/

Hernandez-Chacon v. Barr, 2d Cir., 01-23-20, published

PANEL: WESLEY, CHIN, and BIANCO, Circuit Judges

OPINION BY: Judge Chin

KEY QUOTE: 

2. Political Opinion

To demonstrate that persecution, or a well‐founded fear of

persecution, is on account of an applicantʹs political opinion, the applicant must show that the persecution ʺarises from his or her own political opinion.ʺ Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Thus, the applicant must ʺshow, through direct or circumstantial evidence, that the persecutorʹs motive to persecute arises from the applicant’s political belief.ʺ Id. (emphasis added). The

See Vega‐Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016) (ʺVega‐Ayalaʹs general reference to the prevalence of domestic violence in El Salvador does little to explain how ʹSalvadoran women in intimate relationships with partners who view them as propertyʹ are meaningfully distinguished from others within Salvadoran society.ʺ). But see Alvarez Lagos v. Barr, 927 F.3d 236, 252‐55 (4th Cir. 2019) (remanding for agency to consider whether ʺgroup of unmarried mothers living under the control of gangs in Honduras qualifies as a ʹparticular social group,ʹʺ where record contained evidence that gang in question did ʺindeed target victims on the basis of their membership in a socially distinct group of unmarried mothersʺ).

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persecution may also be on account of an opinion imputed to the applicant by the persecutor, regardless of whether or not this imputation is accurate. See Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007) (ʺ[A]n imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground for political persecution.ʺ (internal quotation mark omitted) (quoting Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005)). The BIA has explained that persecution based on political opinion is established when there is ʺdirect or circumstantial evidence from which it is reasonable to believe that those who harmed the applicant were in part motivated by an assumption that [her] political views were antithetical to those of the government.ʺ Matter of S‐P‐, 21 I. & N. Dec. 486, 494 (B.I.A. 1996); see also Vumi v. Gonzalez, 502 F.3d 150, 157 (2d Cir. 2007).

Here, Hernandez‐Chacon contends that if she is returned to El Salvador she will be persecuted by gang members because of her political opinion ‐‐ her opposition to the male‐dominated social norms in El Salvador and her taking a stance against a culture that perpetuates female subordination and the brutal treatment of women. She argues that when she refused to submit to the violent advances of the gang members, she was taking a stance against a culture of male‐domination and her resistance was therefore a political act.

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There is ample evidence in the record to support her claim.6 Gangs control much of El Salvador, including the neighborhood in which Hernandez‐ Chacon lived. The law enforcement systems that would normally protect women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when the first gang member tried to rape her, she resisted ʺbecause [she had] every right to.ʺ Id. at 193. Three days later, when the same man and two other gang members attacked her, she again resisted, to the point where they beat her until she lost consciousness. She argues that the men targeted her for the second attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an MS gang member and they believed she needed to be punished for her act of defiance. Her now husband likewise stated in his affidavit that Hernandez‐ Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed to fight them off twice, but that just makes them angrier and if she shows her face again, I think they could kill her.ʺ Id. at 269.

At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result.

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While the IJʹs decision was thorough and thoughtful overall, her

analysis of Hernandez‐Chaconʹs political opinion claim was cursory, consisting of the following:

[Hernandez‐Chacon] has also claimed that she had a political opinion. I cannot conclude that her decision to resist the advances of an individual is sufficient to establish that she has articulated a political opinion. In trying to analyze a political opinion claim, the Court has to consider the circumstances under which a respondent not only possessed a political opinion, but the way in which the circumstances under which she articulated that political opinion. In this case she did not advance a political opinion. I find that she simply chose not to be the victim and chose to resist being a victim of a criminal act.

Id. at 153‐54.

The BIA dismissed Hernandez‐Chaconʹs political opinion argument

in a single sentence, in a footnote, rejecting the claim ʺfor the reasons stated in the [IJʹs] decision.ʺ Id. at 5 n.3. The analysis of both the IJ and the BIA was inadequate. See Yueqing Zhang, 426 F.3d at 548‐49 (granting petition for review and remanding case to agency where IJ failed to undertake the ʺcomplex and contextual factual inquiryʺ necessary to determine if persecution was on account of political opinion). We have three areas of concern.

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First, the agency concluded that Hernandez‐Chacon ʺdid not advance a political opinion.ʺ Cert. Adm. Record at 154. But this Circuit has held that the analysis of what constitutes political expression for these purposes ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum applicantʹs activities in relation to the political context in which the dispute took place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang, 426 F.3d at 548). We have held, for example, that resisting corruption and abuse of power ‐‐ including non‐governmental abuse of power ‐‐ can be an expression of political opinion. See Castro, 597 F.3d at 100 (noting that ʺopposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecutionʺ); Delgado, 508 F.3d at 706 (holding that refusing to give technical assistance to the FARC in Columbia can be expression of political opinion); Yueqing Zhang, 426 F.3d at 542, 546‐48 (holding that retaliation for opposing corruption of local officials can constitute persecution on account of political opinion); Osorio v. INS, 18 F.3d 1017, 1029‐31 (2d Cir. 1994) (holding that ʺunion activities [can] imply a political opinion,ʺ and not merely economic position). The Fourth Circuit has recently recognized that the refusal to acquiesce to gang violence can constitute

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an expression of political opinion. See Alvarez Lagos, 927 F.3d at 254‐55 (where record contained evidence that gang in question would view refusal to comply with demand for sex as ʺpolitical opposition,ʺ refusal to acquiesce to gang violence and flight to United States could demonstrate imputed anti‐gang political opinion that constitutes protected ground for asylum). Here, the agency did not adequately consider whether Hernandez‐Chaconʹs refusal to acquiesce was ‐‐ or could be seen as ‐‐ an expression of political opinion, given the political context of gang violence and the treatment of women in El Salvador.

Second, the IJ concluded that Hernandez‐Chacon ʺsimply chose to not be a victim.ʺ Cert. Adm. Rec. at 154. But even if Hernandez‐Chacon was motivated in part by her desire not to be a crime victim, her claims do not necessarily fail, as her political opinion need not be her only motivation. See

8 U.S.C. § 1158(b)(1)(B)(i) (ʺThe applicant must establish 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.ʺ (emphasis added)); Osorio, 18 F.3d at 1028 (ʺThe plain meaning of the phrase ʹpersecution on account of the victimʹs political opinion,ʹ does not mean persecution solely on account of the victimʹs political opinion.ʺ); see also Vumi, 502 F.3d at 158 (remanding to

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agency where BIA failed to engage in mixed‐motive analysis). While Hernandez‐Chacon surely did not want to be a crime victim, she was also taking a stand; as she testified, she had ʺevery rightʺ to resist. As we have held in a different context, ʺopposition to endemic corruption or extortion . . . may have a political dimension when it transcends mere self‐protection and represents a challenge to the legitimacy or authority of the ruling regime.ʺ Yueqing Zhang, 426 F.3d at 547‐48. Here, Hernandez‐Chaconʹs resistance arguably took on a political dimension by transcending mere self‐protection to also constitute a challenge to the authority of the MS gang.

Third, the agency did not consider whether the gang members imputed a political opinion to Hernandez‐Chacon. This Circuit has held that ʺan imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the Immigration and Nationality Act.ʺ Vumi, 502 F.3d at 156 (citations omitted); see Chun Gao, 424 F.3d at 129 (in case of imputed political opinion, question is ʺwhether authorities would have perceived [petitioner] as [a practitioner of Falun Gong] or as a supporter of the movement because of his activitiesʺ). Here, the IJ erred in her political opinion analysis by only considering whether Hernandez‐

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Chacon ʺadvance[d]ʺ a political opinion. Cert. Adm. Rec. at 154. The IJ failed to consider whether the attackers imputed an anti‐patriarchy political opinion to her when she resisted their sexual advances, and whether that imputed opinion was a central reason for their decision to target her. See Castro, 597 F.3d at 106 (holding that to properly evaluate a claim of political opinion, IJ must give ʺcareful consideration of the broader political contextʺ). In fact, as the gang members attacked her the second time, one of them told her that because she would not ʺdo this with him in a good way, it was going to happen in a bad way,ʺ Cert. Adm. Rec. at 186, which suggests that the gang members wanted to punish her because they believed she was taking a stand against the pervasive norm of sexual subordination.

We note that the Fourth Circuit recently granted a petition for review in a case involving a woman in Honduras who was threatened by a gang in similar circumstances. The Fourth Circuit concluded that if, as the petitioner alleged, the gang had imputed to her ʺan anti‐gang political opinion, then that imputed opinion would be a central reason for likely persecution if she were returned to Honduras.ʺ See Alvarez Lagos, 927 F.3d at 251. The court held that the IJ erred by not considering the imputed political opinion claim, that is,

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whether the gang believed that the petitioner held an anti‐gang political opinion. Id. at 254. Likewise, here, the agency did not adequately consider Hernandez‐ Chaconʹs imputed political opinion claim.

Accordingly, we hold that the agency erred in failing to adequately consider Hernandez‐Chaconʹs claim of persecution or fear of persecution based on actual or imputed political opinion.

CONCLUSION

For the reasons set forth above, the petition is GRANTED with respect to Hernandez‐Chaconʹs political opinion claim and the case is REMANDED to the BIA for proceedings consistent with this opinion.

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Heather Axford
Heather Axford
Senior Staff Attorney
Central American Legal Assistance
Brooklyn, NY

 

To state the obvious:

  • Many more women from El Salvador should be getting mandatory relief under CAT based on “torture with government acquiescence,” regardless of “nexus” which is not a requirement in CAT cases. Indeed, in a properly functioning and fair system these could probably be “blanket grants” provided the accounts are credible and documented (or they could be the basis for a TPS program for women fleeing the Northern Triangle, thus reducing the burden on the Immigraton Courts);
  • Compare the accurate account of the horrible conditions facing women inEl Salvador set forth by the Immigration Judge and the Second Circuit in this case with the fraudulent and largely fictionalized account presented by unethical Attorney General Sessions in his Matter of A-B– atrocity. Here are some excerpts from Judge Chin’s opinion which shows the real horrors that women face in El Salvador as opposed to he largely fictionalized version fabricated by Sessions:

 

In her decision, the IJ reviewed relevant country conditions in El Salvador, including the prevalence of violence against women and ʺthe dreadful

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practice of El Salvadorʹs justice system to favor aggressors and assassins and to punish victims of gender violence.ʺ Id. at 147. The IJ relied on the declaration of Aracely Bautista Bayona, a lawyer and human rights specialist, who described ʺthe plight of women in El Salvador,ʺ id.,3 and recounted the following:

One of ʺthe most entrenched characteristics of Salvadoran society is machismo, a system of patriarchal gender biases which subject women to the will of men. Salvadorans are taught from early childhood that women are subordinate.ʺ Id. Salvadoran society ʺaccepts and tolerates men who violently punish women for violating these gender rules or disobeying male relatives.ʺ Id. Indeed, in El Salvador, ʺfemicide remain[s] widespread.ʺ Id. at 148; see also U.S. Depʹt of State, Bureau of Democracy, H. R. and Labor, Country Reports on Human Rights Practices for 2015 for El Salvador (2015) (ʺCountry Reportʺ). Gangs in El Salvador view women as the property of men, and gang violence against women outside the gang ʺmanifest[s] itself in a brutality that reflects these extreme machismo attitudes.ʺ Cert. Adm. Rec. at 148.

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page10image3393429872

The IJ noted that Bayona had ʺfor more than two and a half decades worked and advocated for the rights of women, children, adolescents and youth in the migrant population in El Salvador.ʺ Cert. Adm. Rec. at 138.

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ʺEl Salvador has the highest rate in the world [of femicide] with an average of 12 murders for every 100,000 women.ʺ Id. at 148‐49. As an article on El Salvadorʹs gangs concluded, ʺin a country terrorized by gangsters, it is left to the dead to break the silence on sexual violence . . . , to the bodies of dead women and girls pulled from clandestine graves, raped, battered and sometimes cut to pieces. They attest to the sadistic abuse committed by members of street gangs.ʺ Id. at 149 (quoting El Salvadorʹs Gangs Target Women and Girls, Associated Press, Nov. 6, 2014).

As the State Department has found, rape, sexual crimes, and violence against women are significantly underreported because of societal and cultural pressures on victims and fear of reprisal, and the laws against rape ʺare not effectively enforced.ʺ Country Report at 7. Police corruption in El Salvador is well‐documented, including involvement in extra‐judicial killings and human rights abuses. See id. at 1. The judicial system is also corrupt. While the law provides criminal penalties for official corruption, ʺthe government d[oes] not implement the law effectively, and . . . officials, particularly in the judicial system, often engage[] in corrupt practices with impunity.ʺ Id. at 6. ʺLike Salvadoran society as a whole, law enforcement officials, prosecutors, and judges

‐11‐

discriminate against women, reduce the priority of womenʹs claims, and otherwise prevent women from accessing legal protections and justice. This results in impunity for aggressors, which reinforces aggressorsʹ perception that they can inflict violence without interference or reprisal.ʺ Cert. Adm. Rec. at 300‐ 01.

The IJ observed that Hernandez‐Chaconʹs experiences were ʺgenerally consistent with the background materials she has submitted in regards to pervasive brutal attacks by El Salvadoran gangs.ʺ Id. at 149‐50.

. . . .

There is ample evidence in the record to support her claim [of political; persecution].6 Gangs control much of El Salvador, including the neighborhood in which Hernandez‐ Chacon lived. The law enforcement systems that would normally protect women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when the first gang member tried to rape her, she resisted ʺbecause [she had] every right to.ʺ Id. at 193. Three days later, when the same man and two other gang members attacked her, she again resisted, to the point where they beat her until she lost consciousness. She argues that the men targeted her for the second attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an MS gang member and they believed she needed to be punished for her act of defiance. Her now husband likewise stated in his affidavit that Hernandez‐ Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed to fight them off twice, but that just makes them angrier and if she shows her face again, I think they could kill her.ʺ Id. at 269.

 

At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result.

 

Here are some additional thoughts about the larger problem exposed by this case:

WHY “NIBBLING AROUND THE EDGES” BY ARTICLE IIIs WON’T SOLVE THE CONSTITUTIONAL & HUMAN RIGHTS DISASTERS IN OUR IMMIGRATION COURTS NOR WILL IT RELIEVE THE ARTICLE IIIs FROM RESPONSIBILITY

By Paul Wickham Schmidt

Exclusive for Courtside

Jan. 29, 2020

The Second Circuit’s decision in Hernández-Chacon v. Barr exposes deep fundamental constitutional flaws in our Immigration Court system. While the instructive language on how many women resisting gangs could and should be qualifying for asylum (and many more should be getting relief under the CAT) is refreshing, the remedy, a remand to a failed and constitutionally defective system, is woefully inadequate. 

Indeed, just recently, a fellow Circuit, the Seventh, ripped the BIA for contemptuously disobeying a direct court order. Maybe the Board will pay attention to the Second Circuit’s directive in this case, maybe they won’t. Maybe they will think of a new reason to deny as all too often happens on Circuit Court remands these days. 

I actually have no doubt that the Immigration Judge involved in this case, who recognized the dire situation of women in El Salvador, and grated CAT withholding, will “do the right thing” and grant asylum with the benefit of Judge Chin’s opinion. But, today’s BIA has a number of dedicated “asylum deniers” in its ranks; individuals who as Immigration Judges denied approaching 100% of the asylum claims coming before them, some of them notorious with the private bar for particular hostility to claims from women from the Northern Triangle.

That appeared to be their “selling point” for AG Billy Barr in elevating them to the BIA: Create the same reliable “Asylum Free Zone” at the BIA that has been created by these judges and others like them in other parts of the country. It’s a great way to discourage bona fide asylum claims, which. appears to be the key to the “Barr plan.”

One might ask what Billy Barr is doing running something purporting to be a “court system” in the first place. Outrageous on its face! The short answer: Article III complicity and dereliction of Constitutional duty! But, I’ll get to that later.

What if a panel of “Three Deniers” gets the case on remand? Will Ms Hernandez-Chacon finally get justice? Or, will she and her pro bono lawyer Heather Axford once again have to appeal to the Second Circuit just to force the BIA to finally “get the basics right?”

Individual case remands, even published ones, fail to address the serious underlying issues plaguing our Immigration Courts and threatening the very foundations of our justice system: 1) lack of fundamental knowledge of asylum law on the part of the BIA and the Immigration Courts; 2) an unconstitutional system run, and sometimes staffed, by biased, unethical anti-asylum zealots who consistently send out false or misleading messages; and 3) the inherent unfairness in a system that denies adequate access to counsel and permits the use of coercive detention and outright statutory and constitutional abrogation to consistently harm asylum seekers and others seeking justice.

I. Glaring Lack Of Asylum Legal Competence & Expertise

The Second Circuit noted three major errors in the BIA’s analysis: 1) failing to recognize that the respondent was advancing a “political persecution” argument; 2) misuse  of the concept of “victimization” as a pretext for denying a potentially valid asylum claim; and 3) failure to recognize and address the respondent’s “imputed political opinion.”

None of these mistakes is new. Advocates would tell you that the BIA and Immigration Judges make them all the time.

Nor is getting these things right “rocket science.” Really, all it would take is a body knowledgeable in and committed to the fair and generous interpretation of asylum law intended by the 1951 Convention from which our law stems and reinforced by the Supreme Court in INS v. Cardoza-Fonseca in 1987. The correct view has also been reflected in the Second Circuit’s own published jurisprudence, which the Board again ignored in this case.

For example, the Second Circuit instructed the BIA “that that the analysis of what constitutes political expression for these purposes ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum applicantʹs activities in relation to the political context in which the dispute took place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang, 426 F.3d at 548).” 

This is hardly a new concept.  For example, Yueqing Zhang was published in 2005, a decade and a half ago, and reinforced by the Second Circuit on several occasions since then. Yet, both the BIA and Immigration Judges continue to ignore it when it suits their purposes. So, why would the Second Circuit believe that the Immigration Courts had suddenly “gotten religion” and would now pay attention to their admonitions on asylum law? 

As pointed out by the Second Circuit, the “mere victim” rationale, often insidiously used by the BIA and some Immigration Judges as an “easy handle” to summarily deny asylum claims, is a disingenuous hoax. All successful asylum applicants are “victims” even if not all “victims” necessarily qualify for asylum. Refugees, entitled to asylum, are a very large subset of “victims.” In this and many other cases, the BIA totally “blew by” the well established, statutorily required “mixed motive” analysis that is “Asylum Law 101.”

Also, the BIA’s failure to recognize and consider the well-established doctrine of “imputed political opinion” is inexcusable in a supposedly “expert” tribunal.

The “Article III blowoff” documented in this case is virtually inevitable in a system where the “judges” at all levels, are subject to arbitrary, unethical, and unconstitutional “performance quotas” and receive “performance evaluations” influenced by biased political officials with an interest in the outcome of cases. Indeed, former Attorney Session essentially told “his” judges that it’s “all about production.” Fairness, Due Process, and scholarship that individuals are entitled to before a tribunal simply don’t enter into the equation.

The Immigration Judge in this case has an outstanding reputation and actually did a careful job in many respects. A competent appellate tribunal would have caught the judge’s mistake on political opinion and remanded for further consideration. The case never should have reached the Second Circuit (think efficiency and why the Immigraton Courts have built unmanageable backlogs).

Moreover, an error like this by a competent and careful judge indicates the need for further positive guidance to judges on recognizing valid asylum claims. Why hasn’t the BIA published precedents reinforcing the very points made by Judge Chin in his Hernández-Chacon opinion and showing how they apply to granting asylum in real life, recurring situations, particularly those involving women from the Northern Triangle?

Instead, and in direct contradiction of the law and controlling jurisprudence, Attorney General Sessions in Matter of A-B- gave an unethical, misogynistic, and intentionally factually distorted suggestion that most women’s claims arising from persecution at the hands of gangs and abusive partners in the Northern Triangle should be “denied” on any available ground, whether warranted or not. Some Immigration Judges have correctly viewed this as “mere dicta.” But, others have viewed it as a potentially “career enhancing tip” about how “the big boss” wanted asylum seekers from the Northern Triangle treated: like dirt, or worse.

Dehumanization has always been a “key part of the plan” for Sessions, his acolyte Stephen Miller, and others of like mind in this Administration. Why have the Article III courts enabled, and in some cases approved, this neo-fascist approach to the law and humanity? That’s a great question to which the answer is not obvious. What’s the purpose of life tenure in office if it doesn’t promote courage to stand up for the rights of vulnerable individuals against invidious  intentional Government tyranny ands systemic abuses?

By ignoring the “pattern or practice” of failure by the BIA and the Immigration Courts to institutionalize the Second Circuit’s many years of prior commands for fair asylum adjudication, while ignoring the glaring, intentional barriers to fair judicial performance put in place by the political controllers of this system, the Second Circuit and the other Article IIIs simply advertise their own fecklessness and also, to some extent, intellectual dishonesty.

II. Institutional Bias Against Asylum Seekers

Both Attorney General Barr and his predecessor Jeff Sessions are biased “cheerleaders” for DHS enforcement; they are totally unqualified to act in a quasi-judicial capacity or to supervise quasi-judicial adjudicators. Their participation in and interference with fair and impartial decision making is a clear violation of Due Process and a mockery of judicial and legal ethics.

A private lawyer who so blatantly “thumbed his or her nose” at prohibitions on conflicts of interest undoubtedly would face discipline or disbarment. Yet, the Second Circuit and their fellow Circuits, as well as the Supremes, have failed to act on these obvious ethical improprieties by the DOJ and its leadership that have a direct negative impact on constitutional Due Process.

Under Trump, Attorneys General have issued number of anti-asylum “precedents” reversing prior law and practice. New Immigration Judges are selected by the Attorney General almost exclusively from the ranks of prosecutors and other Government attorneys. Those with private sector experience or experience representing migrants and asylum seekers are systematically excluded from the judiciary. How is this a fair system?

The Administration and DOJ spew forth an endless stream of anti-immigrant and anti-asylum, propaganda. They also use “performance work plans”and “numerical quotas” to drum into “judges” their responsibility to follow and implement “agency policies” rather than fairly and impartially consider the cases coming before them. This message certainly does not encourage fair and impartial adjudication. The “default message” clearly is “deny, deny, deny.”

One very fundamental problem resulting from this institutional bias against asylum seekers: The BIA’s (and now AG’s) “precedents” providing guidance to Immigration Judges fail to set forth rules and circumstances for granting asylum in meritorious cases. The need for such rules should be obvious from the Supreme Court’s 1987 decision in INS v. Cardoza-Fonseca (directing the BIA to implement a generous interpretation of “well-founded fear” standard for asylum) and the BIA’s initial response to Cardoza in Matter of Mogharrabi (directing that asylum could be granted even where the objective chance of persecution is “significantly less than . . . probable”). Most, if not all, Circuit Courts of Appeals followed suit with a series of decisions criticizing the BIA for an “overly restrictive reading” of asylum law, not true to Cardoza and their own precedent in Mogharrabi, in many unpublished cases.

But, quite intentionally in my view, the BIA and Attorney General have now strayed far from these judicial admonitions and abandoned the BIA’s own precedent in Mogharrabi. Instead, today’s administrative “precedents” read like a “how to course” in denying asylum claims. Indeed, from examining these one-sided precedents (no individual has prevailed in an “Attorney General precedent” under this Administration — DHS wins every time), one comes away with the pronounced view that asylum could almost never be granted by an Immigration Judge, no matter how great the harm or compelling the circumstances.

I once participated in an academic conference attended by Circuit Court of Appeals Judges from across the country. Most were astounded to learn how many asylum cases were actually granted by Immigration Judges. From their review of unfailingly negative BIA decisions (skewed, of course, by the Government’s inability to appeal from the BIA, another problem with the current system) they had the impression that asylum was denied nearly 100% of the time (which actually does happen in some Immigration Courts these days, as noted above).

The only way to describe this is “gross institutional corruption” starting at the top with the DOJ and the Attorney General. Even now, under these intentionally restrictive rules, more than 30% of asylum cases are granted at merits hearings before Immigration Judges, although with the lack of effective positive guidance from the BIA those rates are highly inconsistent among judges.

Within the last decade, the majority of cases were actually being granted as the system was slowly progressing toward toward realizing the “spirit of Cardoza and Mogharrabi” However, that progress intentionally was reversed by improper political pressure to deny more Central American cases (a message that actually began under the last Administration and has been “put on steroids” by the current Administration).

III. An Inherently Unfair System

Notwithstanding the need for careful record building and detailed fact-finding as described by the Second Circuit, individuals are not entitled to appointed counsel in Immigraton Court. Through use of intentionally coercive and inhumane detention and “gimmicks” like “Remain in Mexico” the Administration strives to deny fair access to pro bono counsel and to prevent individuals from preparing and documenting complex cases.

The Article IIIs recognize the complexity of asylum cases, yet fail to “connect the dots” with the intentional systemic impediments to fair preparation and presentation thrown up by the government. The “hostile environment” for aliens and their counsel intentionally created in Immigration Court by the DOJ also works to discourage individuals from pursuing claims and getting representation.

The whole system is essentially a judicially-enabled farce. Does the Second Circuit, or anybody else, seriously think that Ms. Hernandez-Chacon would have gotten this far without the time-consuming and outstanding assistance of her pro bono lawyer, Heather Axford, of Central American Legal Assistance in Brooklyn, NY? She’s one of the top asylum litigators in the nation who used to appear before me in Arlington at the beginning of her amazing career!

How many of those “detained in the middle of nowhere,” told to “Remain in Mexico,” or, worse yet, orbited to “failed states” by Border Agents under bogus “Safe Third Country Agreements” have access to someone like Heather Axford? (It doesn’t take much imagination after reading the truth about how women are treated in El Salvador to see the outright fraud committed by the Trump Administration in entering into bogus “Safe Third Country” agreements with El Salvador and other dangerous, failing states). About none! How can the courts allow a system to keep out grinding out systemic abuse to vulnerable human beings without insisting that the essentials for fair hearings be put in place and maintained?

IV.  Conclusion

When obvious legal, analytical, and institutional problems remain unfixed more than a decade after they surfaced, the system is broken! The current Immigration Court system is patently unfair and unconstitutional. By ignoring the glaring systemic unfairness, Article III Courts become part of the problem and subject themselves to charges of fecklessness and dereliction of duty.

It’s long past time for the Article IIIs to take decisive actions to end the national disgrace and humanitarian disaster unfolding in our Immigration Courts daily. History is watching your actions and will be your judge! 

Due Process forever; Complicit courts never!