"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Appeals court keeps block of Trump immigration rule in place
A federal appeals court in New York on Wednesday rejected a motion from the Trump administration that would have allowed it to implement a policy connecting the use of public benefits with whether immigrants could become permanent residents.
The ruling from the 2nd U.S. Circuit Court of Appeals denied the administration’s motion to lift a temporary national injunction that had been issued by a New York district court in October after lawsuits had been filed against the new policy.
The new rule would potentially deny green cards to immigrants over their use of public benefits including Medicaid, food stamps and housing vouchers, as well as other factors.
The New York injunction was one of several that were issued around the time the rule had been scheduled to go into effect in October.
But a regional injunction issued in California and another national injunction issued in Washington have already been lifted by other federal appeals courts. That left New York’s as the only nationwide bar to the Trump administration putting the new rule into practice. An injunction in Illinois also is in effect, but applies only to that state.
The three-judge panel of the 2nd Circuit had heard arguments over the motion to lift the injunction on Tuesday.
Judges questioned the government’s attorney on the timing — why the injunction needed to be lifted at this point when the lawsuit itself would be heard by a judge in coming months.
Immigrants applying for permanent residency must show they wouldn’t be public charges, or burdens to the country.
The new policy significantly expands what factors would be considered to make that determination, and if it is decided that immigrants could potentially become public charges at any point in the future, that legal residency could be denied.
Roughly 544,000 people apply for green cards annually. According to the government, 382,000 are in categories that would make them subject to the new review.
Immigrants make up a small portion of those getting public benefits, since many are ineligible to get them because of their immigration status.
The individual impact of these new policies could potentially be devastating to immigrants and their families: however, the overall public financial impact of throwing up new bars to permanent immigration would be minuscule, as pointed out in this article. The lack of any real emergency reason for exempting the Government from going through the full litigation process at the District Court level (where preliminary injunctions had been issued), as others must, was noted by dissenting judges in both circuits that “rolled” for Trump.
EMELI KWASI ATTIPOE v. BARR, 2d. Cir., 12-19-19, published
PANEL: POOLER, LOHIER, and CARNEY, Circuit Judges.
OPINION BY: Judge Rosemary Pooler
KEY QUOTE:
Here, as in Iavorski, nothing in the text of Section 545(d)(2) itself, or in its
4 legislative history, indicates that Congress intended the appeal filing deadline to
5 be jurisdictional. To the contrary, the House Conference Report states that
6 “[u]nless the Attorney General finds reasonable evidence to the contrary, the
7 regulations must state that administrative appeals be made within 30 days, except
8 that the appellate body may, upon motion, extend such period up to 90 days, if good cause
9 is shown by the movant.” H.R. Rep. No. 101‐955 at 133 (emphasis added). The
10 legislative history thus indicates that Congress was amenable to the idea of
11 extending the time to file an appeal past the deadline upon a showing of good
12 And the BIA may, sua sponte, decide to accept late filings under the self‐
13 certification process. It could not accept any late filings—exceptional
14 circumstances or not—if the filing deadline truly was jurisdictional.
15 We therefore extend Iavorksi’s interpretation of Section 545(d)(1) to its
16 sister subsection, Section 545(d)(2), and hold that the BIA must consider the
17 principles of equitable tolling when an untimely appeal is filed and the petitioner
18 raises the issue, as Attipoe did here. We remand to the BIA to consider whether 15
1 equitable tolling allows consideration of Attipoe’s late‐filed appeal. The BIA is
2 free to develop the factors it will apply in considering equitable tolling, although
3 we note that it need not start from scratch. In Holland, the Supreme Court set out
4 standards for courts to apply in determining whether equitable tolling is
5 appropriate: (1) a showing that a petitioner “has been pursuing his rights
6 diligently, and (2) that some extraordinary circumstance stood in his way.” 560
7 S. at 649 (internal quotation marks omitted). And in the context of a late
8 motion to reopen, we have held that petitioners seeking equitable tolling must
9 demonstrate (1) that their constitutional rights to due process were violated by
10 the conduct of counsel; and (2) that they exercised due diligence during the
11 putative tolling period. Iavorski, 232 F.3d at 135; see also Rashid v. Mukasey, 533
12 3d 127, 132 (2d Cir. 2008) (requiring that a petitioner prove diligence during
13 “both the period of time before the ineffective assistance of counsel was or
14 should have been discovered and the period from that point until the motion to
15 reopen is filed”); Cekic v. I.N.S., 435 F.3d 167, 170 (2d Cir. 2006) (requiring that
16 petitioner “affirmatively demonstrate that he exercised reasonable due diligence
17 during the time period sought to be tolled”). After it determines what the
16
1 2 3 4 5 6 7 8
standards for equitable tolling under Section 1003.38 are, the BIA should determine whether Attipoe satisfies those standards.
CONCLUSION
For the reasons given above, the petition is granted, the BIA’s decision is vacated, and this matter remanded to the BIA for further proceedings consistent with this opinion.
An honest, competent Attorney General would make fixing the glaring legal, quality control, and Due Process problems with the BIA’s performance “job one.”
Instead, White Nationalist political hacks Sessions, Whitaker, and Barr have maliciously pushed the BIA and the Immigration Courts to rush more defective unprofessional work product out the door faster, thereby guaranteeing unconstitutional miscarriages of justice and numerous wrongful removals.
Improper, mindless, designed to fail “haste makes waste” gimmicks by the regime actually make the astounding 1.3 million case Immigration Court backlog much much worse, rather than addressing it in a rational and professional manner consistent with Due Process of law.
That’s especially true in a system where many individuals are improperly and unconstitutionally forced to appear without assistance of counsel and many others suffer from “underperformance” of counsel in a totally stressed and unfair system where the problems are overwhelmingly caused by our Government‘s “maliciously incompetent” performance, but the consequences fall almost exclusively and most heavily on the individual victims of U.S. Government malfeasance.
The idea the the BIA deserves “deference” as a fair, impartial, “expert” tribunal is beyond absurd. It’s a flat out abdication of legal duty by the Article III Courts of Appeals. When will they finally put a stop to this mockery of justice and remove the biased, unethical, and malicious DOJ prosecutor from improper and unconstitutional control over the Immigration “Courts?” How many illegal removals on their watch are too many for the complicit and privileged “life-tenured ones?”
What if it were themor their families suffering and being abused in this ongoing national disgrace that passes for a “court system?”
During a recent radio interview, the reporter interviewing me expressed surprise when I mentioned that an asylum applicant need only show a ten percent chance of being persecuted in order to succeed on her claim. That standard was recognized 32 years ago by the U.S. Supreme Court in the case of INS v Cardoza-Fonseca, 480 U.S. 421 (1987). The holding represented a dramatic shift in asylum eligibility, as prior to the decision, the BIA (and therefore, the immigration judges bound by its decisions) had interpreted “well-founded fear” to require a greater than fifty percent chance of persecution. But what was the practical impact of this change on the adjudication of asylum claims?
Following the Supreme Court’s decision, the BIA and circuit courts set out to define what an asylum seeker must show to satisfy the lower standard. The general test adopted by the circuit courts requires a finding that the asylum seeker possess a genuine subjective fear of persecution, and that there is some objective basis for such fear in the reality of the circumstances so as to make such fear reasonable.1 Prof. Deborah Anker in her treatise The Law of Asylum in the United States emphasizes the link between the subjective and objective standards, noting that while the objective element is meant to ensure “that protection is not provided to those with purely fanciful or neurotic fears,” it is “critical, however, that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.” This is obviously quite different than the purely objective approach necessary under the prior “more likely than not” standard.
In Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019), the U.S. Court of Appeals for the Second Circuit, in an unpublished decision, once again considered the question of what is required for a fear of persecution to be “well-founded.” Although the primary target of the government’s persecution was the petitioner’s husband, an activist with the opposition Democratic Party in their native Albania, police twice sprayed the restaurant jointly owned by the couple with bullets, pushed the petitioner herself to the ground during raids of their home, and at one point threatened to kidnap the petitioner and sell her into prostitution if her husband did not back the ruling Socialist Party candidate for parliament. The local Socialist Party leader also threatened the petitioner that the restaurant would be burned to the ground with her family in it if they did not stop hosting Democratic Party meetings there.
The immigration judge found the petitioner to be completely credible and to have a genuine subjective fear of persecution. However, the IJ denied asylum on the ground that the fear was not objectively reasonable, because the authorities had opportunities to harm her when they were persecuting her husband, but in the IJ’s opinion, did not do so. The judge thus concluded that nothing suggests that the authorities would “suddenly” be inclined to harm the petitioner in the future if they had not done so in the past.
The Second Circuit rejected the above standard as “too exacting,” adding that the applicant’s fear can be objectively reasonable “even if it is improbable that he will be persecuted upon his return to his own country.” The court added that there only need be “a slight, though discernible, chance of persecution,” noting that the standard is whether “a reasonable person in the same circumstances would have such a fear.”
At oral argument, the Chief Judge of the Second Circuit, Hon. Robert Katzmann, directly asked the government attorney if she would be afraid to return to Albania if she faced the same facts as the respondent, adding that he himself would be.
The question of whether one in the asylum seeker’s shoes would be afraid to return is the proper approach to determining if the subjective fear is reasonable. Back in 1992, before either of us were appointed judges, my former colleague William Van Wyke, a brilliant legal mind, authored a much talked about article entitled “A New Perspective on ‘Well-Founded Fear.’” Judge Van Wyke’s approach was to consider the asylum seeker the factfinder: having assessed all of the facts in the home country, the asylum seeker decided that the threat of persecution was enough to warrant fleeing the country. In Judge Van Wyke’s perspective, the asylum adjudicator is placed in the position of an appeals court, reviewing the asylum seeker’s decision for reasonableness.Although such approach sounds radical, it’s really just another way of applying the circuit court standard.
However, too many decisions deny asylum because they pose the wrong question. If a traveler is told that the flight she has booked has a 10 percent chance of crashing, the question isn’t whether it would thus seem unlikely under an objective analysis that that the plane would crash, or whether in fact the plane did actually crash, or whether those passengers that did board the same flight landed safely and went on with their lives without incident. The question is whether based on the knowledge she possessed, was it reasonable for the passenger not to board the flight?Of course, the answer is yes.The objective likelihood that all would be fine wouldn’t be enough to cause any of us to board the plane.Therefore, that slight risk of danger was enough to render the passenger’s subjective fear reasonable.Or as the Second Circuit held in Qosaj, “no reasonable factfinder could conclude that” the petitioner “did not show at least a ‘discernible [ ] chance of persecution,’” which the Second Circuit confirmed as enough “to render her subjective fear objectively reasonable.”
But how often is this standard applied correctly in asylum adjudication? For example, case law allows an asylum adjudicator to conclude that an asylum applicant’s fear is not objectively reasonable based on the continued safety of family members who remain in the country of origin. But if there is a sufficient ten percent risk of persecution, that means that there is 90 percent chance that nothing will happen.Wouldn’t that mean that it is overwhelmingly likely that the remaining family would suffer no harm? If so, why should their safety to present undermine the claim?Or in assessing whether the government is unable or unwilling to control a non-state actor persecutor, shouldn’t the proper inquiry be whether there is a ten percent chance that the government would not afford such protection?2
It’s a shame that Qosaj wasn’t issued as a published decision. Nevertheless, attorneys might find it useful to reference at least in the Second Circuit as a reminder of the proper application of the burden for determining well-founded fear. And Congrats to attorney Michael DiRaimondo (who argued the case) and fellow attorneys Marialaina Masi and Stacy Huber of DiRaimondo & Masi on the brief (Note: I am of counsel to the firm, but had no involvement with this case).
Notes:
1. See, e.g., Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).
2. I thank attorney Joshua Lunsford for bringing this point to my attention.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
************************************************
Here’s a link to the full decision in
Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019):
First, three decades after Cardoza-Fonseca, and nearly four decades after the enactment of the Refugee Act of 1980, EOIR Judges are still getting the fundamentals wrong:basics, like the correct legal standards to be used in evaluating asylum claims.
Getting that asylum standard correct should be neither complex nor difficult. Just look at how relatively short, concise, and to the point the Second Circuit’s reversal in Qosaj was, particularly in comparison with the legal gibberish spouted by Barr and Sessions in attempting to rewrite the law intentionally to screw migrants in some of their unconstitutional and unethical precedents.
Improper adjudication by Immigration Judges is hardly surprising in a system that emphasizes law enforcement and speedy removals over quality and Due Process. Then, it’s compounded by politicos attempting to improperly and unethically influence the judges by spreading false narratives about asylum applicants being malafide and their attorneys dishonest.
It’s really quite the opposite. There is substantial reason to believe that the system has been improperly, dishonestly,andpolitically “gamed” by the DOJ to deny valid claims (or even access to the system) to “discourage” legitimate asylum seekers and further to intentionally abuse those (often pro bono or low bono) lawyers courageously trying to help them.
Also, massive appointments of Immigration Judges at both the trial and appellate levels, some with questionable qualifications, and all with no meaningful training on how to recognize and grant asylum claims have compounded the problem.
Does anyone seriously think that the “New Appellate Immigration Judges” on the BIA, some of whom denied asylum at rates upwards of 95%, were properly applying the generous legal standards of Cardoza-Fonseca to asylum seekers? Of course not! So why is this unconstitutional and dysfunctional system allowed to continue?
Which brings me to my second point. It’s nice that the Second Circuit actually took the time to correct the errors, unlike some of the “intentionally head in the sand Circuits” like the 5th and the 11th, who all too often compound the problem with their own complicity and poor judging. But, failing to publish important examples of DOJ/EOIR “malicious incompetence” like this is a disservice to both the country and the courts.
It leaves the impression that the Second Circuit doesn’t really value the rights of asylum seekers or view them as important.It also signals that the court doesn’t really intend to hold Barr and EOIR accountable for lack of quality control and fundamental fairness in the Immigration Court system.
Furthermore, it deprives immigration practitioners of the favorable Article III precedents they need to fight the abuses of due process and fundamental fairness being inflicted on asylum seekers every day at the “retail level” — in Immigration Court. It also fails to document a public record of the widespread “malicious incompetence” of DOJ and EOIR under Trump’s White Nationalist restrictionist regime.
It’s also horrible for the court. You don’t have to be a judicial genius to see where this is going. Unqualified, untrained Immigration Judges are being pushed to cut corners and railroad asylum seekers out of the country. The BIA has been “dumbed down” and weaponized to “summarily affirm” this substandard work product. That means that the circuit courts are going to be flooded with garbage — sloppy, unprofessional work. As the work piles up or is sent back for quality reasons, the Administration will blast and blame the Article III courts for their backlogs and for delaying deportations.
So why wait for the coming disaster? Why not be proactive?
The Second Circuit and the other Circuits should be publishing precedents putting the DOJ and EOIR on notice that Due Process, fair treatment, and quality work is required from the Immigration Courts. If it’s not forthcoming, why shouldn’t Barr and the officials at DOJ and EOIR responsible for creating this mess be held in contempt of court?
Two historical notes. First, our good friend and former colleague, Judge Dana Leigh Marks, then known as Dana Marks Keener, successfully represented the respondent before the Supremes in Cardoza-Fonseca (for the record, as DHS DGC. I was aligned with the SG on the “losing” side). Therefore, I sometimes call Judge Marks the “Founding Mother” of modern U.S. asylum law.
Second, immigration practitioner Michael DiRaimondo who successfully argued Qosaj before the Second Circuit began his career in the General Counsel’s Office of the “Legacy INS” during the “Inman-Schmidt Era.” He then went on to a distinguished career as the INS Special Assistant U.S. Attorney in the Eastern District of New York before entering private practice. Way to go, Michael D!
Press Release: Federal Appeals Court Holds that The First Amendment Protects Immigrant Rights Activists from ICE Retaliation
New York, NY — A federal appeals court has ruled in favor of immigrant-rights activist Ravi Ragbir, concluding that the First Amendment prohibits the government from targeting immigration activists for deportation based on their political speech. “To allow this retaliatory conduct to proceed would broadly chill protected speech, among not only activists subject to final orders of deportation but also those citizens and other residents who would fear retaliation against others,” the decisionstates. It goes on to explain:
Ragbir’s speech implicates the apex of protection under the First Amendment. His advocacy for reform of immigration policies and practices is at the heart of current political debate among American citizens and other residents. Thus, Ragbir’s speech on a matter of “public concern” is at “the heart of . . . First Amendment[] protection,” and “occupies the highest rung of the hierarchy of First Amendment values.’” Because Ragbir’s speech concerns “political change,” it is also “core political speech” and thus “trenches upon an area in which the importance of First Amendment protections is at its zenith.” Indeed, his “speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” (citations omitted).
The court of appeals concluded: “Ragbir’s speech implicates the highest protection of the First Amendment,” and “he has adduced plausible — indeed, strong — evidence that officials responsible for the decision to deport him did so based on their disfavor of Ragbir’s speech (and its prominence).”
The decision further held that a federal statute stripping courts of their power to hear these First Amendment claims is itself unconstitutional. The court of appeals sent the case back to the district court to consider the case in light of its conclusions, directing the district court to stay Mr. Ragbir’s deportation as it considers the next steps in the case.
Mr. Ragbir, Executive Director of the New Sanctuary Coalition, was abruptly detained by Immigration and Customs Enforcement (“ICE”) on January 11, 2018 after years of routine check-ins. ICE’s action came at the heels of its similarly abrupt arrest and detention of Jean Montrevil, a co-founder of New Sanctuary Coalition, that same month. ICE deported Mr. Montrevil and attempted to do the same to Mr. Ragbir before a federal court ordered his release. ICE officials made clear that they resented Mr. Ragbir’s and Mr. Montrevil’s outspoken activism and criticism of U.S. immigration policies.
Even after Mr. Ragbir’s release from detention in January 2018, ICE continued to pursue Mr. Ragbir’s deportation, prompting the New Sanctuary Coalition of New York City, CASA, Detention Watch Network, the National Immigration Project of the National Lawyers Guild, and the New York Immigration Coalition to join Mr. Ragbir in filing suit (Ragbir v. Homan) to challenge the targeting of immigrant rights activists by federal immigration officials. The suit alleged that the specific actions against Mr. Ragbir, along with similar retaliatory actions against activists across the country, were part of a pattern and practice of unlawful targeting in violation of the First Amendment.
The district court denied Mr. Ragbir’s motion for a preliminary injunction and dismissed the claims challenging his deportation under the First Amendment. On appeal, the Second Circuit vacated that decision, concluding that the alleged retaliatory deportation by ICE was sufficiently “outrageous” to violate the First Amendment, and that the Constitution requires judicial review of these claims. The opinion was written by Judge Droney and joined by Judge Leval. A dissent was filed by Judge Walker, who stated that he agreed with much of the majority’s reasoning, but believed ICE’s retaliation against Mr. Ragbir ended with his release from immigration detention.
“I cannot begin to express my gratitude to all those who have stood with us in this struggle. It humbles me to know that not only will my voice be protected, but that together we can protect the voices of so many people who are living in this country under the threat of deportation,” said Mr. Ragbir. “It was all of our voices together that made this decision possible and we have to continue to speak out against the travesty of our deportation system.”
“Today’s decision stands as a warning to this administration to end its pattern of retaliating against immigrant-rights activists across the country,” said R. Stanton Jones of Arnold & Porter, who argued the case at the Second Circuit. “Mr. Ragbir’s activism, his advocacy, and his protest for immigrant rights stand in America’s greatest civic traditions. With today’s decision, Mr. Ragbir may continue his important work free from fear of forceful government retaliation.”
“This decision affirms a constitutional principle of critical importance — the First Amendment prohibits our government from silencing its political opponents by deporting them,” said William Perdue of Arnold & Porter. “Immigration officials are not above the Constitution.”
The lawsuit was supported by numerous faith leaders, immigrant rights organizations, elected officials, activists, and others who spoke out on behalf of protecting immigrants’ First Amendment rights (including but not limited to the New York State Council of Churches, Make the Road New York, the Center for Popular Democracy and the Center for Popular Democracy Action, the Institute for Constitutional Advocacy and Protection, and the Knight First Amendment Institute). “Protecting activist voices is about protecting the movement,” said Jessica Rofé of the NYU Immigrant Rights Clinic. “So many have stood up for Ravi because they know what is at stake.”
“Ravi’s crucial advocacy drives to the heart of our nation’s moral imperative to remember that immigrants are humans who deserve to be followed, listened to and protected,” said Pastor Kaji Dousa, co-chair of New Sanctuary Coalition. “For asserting that immigrants have rights and are not disposable, ICE sought to silence Ravi and deport him. We are grateful that the Second Circuit had the wisdom to rule on the side of liberty and to uphold the notion that even Congress can’t take away immigrants’ Constitutional rights. Now Ravi can continue with the very work this country so deeply needs.”
“CASA applauds the Second Circuit’s decision allowing Ravi to move forward with his case. It is an important vindication of the First Amendment right of all members of our society to make their voices heard, free from fear of retaliation. Our leaders will not be silenced, as we continue to fight back against the abuses of the current administration’s inhumane immigration policies, and call on Congress to finally reform our broken immigration system so that families can remain together,” said George Escobar, CASA Chief of Programs and Services.
“Today’s ruling by the Second Circuit is a victory for the First Amendment and for all immigration activists around the state. The Court’s finding affirms what we always knew — Immigration and Customs Enforcement (ICE) unlawfully targeted New Sanctuary Coalition’s Ravi Ragbir for deportation as a result of his immigration rights activism,” said Betsy Plum, VP of Policy, New York Immigration Coalition.
“We know that the struggle is not over,” said Alina Das of the NYU Immigrant Rights Clinic. “But we are on our way. We are so deeply grateful for this decision because it will allow us to continue our fight for justice for Ravi and for all those who have been targeted and taken from our community for speaking out.”
In Solidarity and gratitude,
New Sanctuary Coalition
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Well, as we’ve seen in today’s posts, some judges stand tall, others are small.
Feb 10 All The World’s A Stage (including the 2d Cir.!)
“How did we get here? How the hell…
Pan left – close on the steeple of the church.”
Jonathan Larson, “Halloween,” from Rent
The above lines popped into my head as I sat in an ice-cold dressing room in the basement of Judson Memorial Church in Greenwich Village just prior to curtain for the final performance of the world premiere run of Waterwell’s play The Courtroom. I was performing the role of the judge in the final scene who conducts a naturalization ceremony in which the journey of the protagonist, Elizabeth Keathley, through the immigration system ends with her becoming a U.S. citizen. The castwas comprised of stars of stage and screen, including a Tony Award winner, and a Tony nominee and Obie, Drama League, and Outer Critics Circle winner. “How did I get here?”
The Courtroomis the result of the inspired vision of Waterwell’s co-founder, Arian Moayed, himself a Tony-nominated Broadway actor who currently plays Stewie on the HBO hit Succession. A civic-minded theater company, Waterwell has staged musicals written during WW II aboard The Intrepid with a cast of actors and veterans, and a bilingual Farsi-English production of Hamlet set in 1918 Tehran. (Waterwell also runs an incredible educational program with New York City High School students, and its film division produces the Emmy-nominated web series The Accidental Wolf.)
An immigrant himself, Arian was moved by his own family history to respond to the present immigration climate, and took the unorthodox approach of seeking out actual immigration court transcripts to serve as the script. The production’s wonderful associate producer, Madelyn Murphy, quickly connected with Chicago immigration attorney Richard Hanus. He suggested the case of Elizabeth Keathley, whose path to a green card based on her marriage to a U.S. citizen was put in jeopardy over an innocent mistake regarding voter registration while applying for a driver’s license. Years later, Elizabeth prevailed on appeal to the 7th Cir. Court of Appeals in Keathley v. Holder, when Chief Judge Frank Easterbrook was persuaded by Hanus’s argument that the criminal common-law defense of entrapment by estoppel should apply in the immigration law context.
The script for the first act of The Courtroomis the verbatim transcript of Ms. Keathley’s immigration court proceedings in 2008. The script for the second act is the verbatim oral argument before the 7th Cir. and the panel’s written decision. So instead of a piece written by a playwright seeking to make a statement about our immigration system, one case plucked from that system was allowed to speak for itself. I had the pleasure of attending the first table read-through at Waterwell’s Manhattan offices. I remember Arian asking “Will this work as drama?” but he had a strong feeling that it would, and his instincts proved right.
What I found compelling about the case was that everyone involved in the immigration court hearing was respectful, professional, and thoughtful. After witnessing the complete immigration court hearing, the audience does not feel animosity towards the judge or ICE attorney. Nevertheless, the wrong result was reached. To me, an important theme is that of faith in an imperfect system – and not only the faith of the protagonist and her loving husband who are unexpectedly caught in a system they don’t understand, or of the brilliant lawyer who perseveres knowing that the correctness of his argument is no guarantee of a satisfying outcome. It also speaks to the faith that our justice system requires from society, a point I touched on in my stage remarks.
Waterwell’s managing director, Adam Frank, came up with the idea for a third act portraying Elizabeth’s naturalization ceremony. Adam told me the idea was inspired by his hearing Arian speak emotionally about his own naturalization, an experience that native-born Americans never have. So in the last act, the entire audience is naturalized. The role of the judge in that last scene was played by actual judges. My fellow former immigration judge, Betty Lamb, sitting immigration judge Mimi Tsankov, Magistrate Judge Sanket J. Bulsara of the Eastern District of New York, and myself took turns playing the role. And each of us were allowed to write our own remarks following the oath. This imbued each performance with a personalized view of the process in the words of actual judges who have performed these ceremonies in real life. My remarks are copied below.
I was first invited to perform at one of the two performances held inside the main courtroom of the U.S. Court of Appeals for the Second Circuit, in the Thurgood Marshall Courthouse in lower Manhattan. (Other performances were held at Fordham Law School, St. Mark’s Church in the East Village, and Judson Church). For the courthouse performances, audience members had to have their names on a list, go through security, and check their cell phones at the door. I still can’t believe that I was fortunate enough to perform on the stage of the Second Circuit Court of Appeals, a once in a lifetime experience. The courtroom held an energy unlike any of the other venues. The setting created the sense of watching an actual hearing in a real courtroom, without the usual sense of separation when sitting in the audience watching a play on a stage. As one of the actors pointed out, in the courtroom performances, when he read the line “please rise,” the whole audience rose to its feet without hesitation.
Ruthie Ann Miles, Kathleen Chalfant, Happy Anderson, Kristin Villanueva, Linda Powell, Michael Braun, Michael Bryan French, Mick Hilgers, and Hanna Cheek comprised the brilliant cast. Lee Sunday Evans’ inspired direction had to contend not only with the unorthodox nature of the script, but with the constantly changing layouts and acoustics over the four different venues. In the hands of these outstanding professionals, it all worked beautifully.
The real-life Keathleys and Richard Hanus traveled to New York and attended two of the performances, sitting in the audience just a few rows behind the actors portraying them.
I was left in awe of the talent and dedication of all involved; it was also without exception the warmest, kindest group of individuals I have ever had the privilege to be involved with. Thanks to all of them for briefly welcoming me into their world. Hereis a link to a New York Times’ article about the play.
My remarks from the naturalization ceremony:
“It is my great honor and pleasure to congratulate you all and address you for the first time as fellow citizens of the United States. Performing these ceremonies is undoubtedly the best part of my job. Judges have a number of powers, but none is greater or more humbling than the act we just performed together. Just a few minutes ago, you were citizens of many different countries. But by raising your hands and repeating an oath, you all instantly, almost magically, became citizens of the United States. To fully comprehend the significance of this, think back to the first time you ever heard of this country – maybe from a book or in a movie, or through a family friend or relative who was visiting from America. Imagine if you were told at that moment that you would be standing here today as an American citizen. Hopefully, that memory will capture the wonder of this great ceremony.
For some of you, the path to U.S. citizenship may have been short and without incident; others might have traveled a longer, more difficult road to arrive here today. Regardless, you should all be congratulated on reaching this most important milestone.
You should not feel a sense of loss today. American citizenship does not erase your past; to the contrary, it simply adds a new dimension to who you already are. We are a country of hyphenated Americans. Whether we are Mexican-American, African-American, Iranian-American, or Filipino-American, we should all wear our heritage as a source of pride, as the culture, thoughts and traditions that we bring to the American experience makes all of us richer.
There are of course responsibilities that come with citizenship. I’m going to mention two such responsibilities today. First, you have the responsibility to perform jury duty if called upon to do so. In a democracy, faith in our judicial institutions is paramount. However, our courts will not always reach the right result. But society will abide by judicial outcomes that they disagree with if they believe that the result was reached impartially by people who were genuinely trying to get it right. Abiding by judicial decisions is a key to democracy. It is what prevents angry mobs from taking justice into their own hands. In the words of Balzac, “to distrust the judiciary marks the beginning of the end of society.” To keep this public trust, we must all try our best every day to get it right. Your participation in this system as part of a jury of one’s peers, and your fairness in trying to reach the correct result under the law is crucial to this process.
The other responsibility I want to mention today is the responsibility to vote. As a U.S. citizen, your vote counts the same as that of anyone else, no matter how rich or powerful they may be. You should exercise that right by voting responsibly and often. No election is too small for you to exercise your right to vote. As Abraham Lincoln famously said in his Gettysburg Address, this is a government of the people, by the people and for the people. As of today, you all now share the responsibility for ensuring that those words remain true.
Once again, congratulations!”
Copyright 2019 Jeffrey S. Chase. All rights reserved.
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.
PANEL: HALL, LOHIER, Circuit Judges, and RESTANI, Judge.
Judge Jane A. Restani, of the United States Court of International Trade, sitting by designation.
OPINIONBY: Per Curiam
KEYQUOTE:
In the present case, the BIA expressly stated that “[w]hether a marriage was entered into in good faith is a factual question” subject to clear error review. CAR 177. And at the end of its decision, it emphasized that it could not “reverse an Immigration Judge’s decision simply because the facts could have been viewed differently,” concluding that it would not disturb an IJ’s ruling if it “was based on a permissible view of the evidence.” CAR 178. But these statements conflict with the BIA’s published authority holding that where the question is whether established facts meet a legal standard, the BIA may weigh the evidence differently than the IJ. See In re A-S-B-, 24 I. & N. Dec. at 497. Here, the established facts—subject to clear error review by the BIA—were that the couple married in Bangladesh in mid-2003, barely resided together during their marriage, divorced six months after Alom’s entry to the United States in 2005, and had no children or demonstrable marital property. But the BIA failed to acknowledge the de novo standard applicable to the mixed question of whether the established facts were sufficient to establish a good faith marriage under § 1186a(c)(4)(B). In fact, the BIA’s commentary implies that it applied only clear error review to the entirety of the good faith marriage determination (i.e., whether the established facts demonstrated that Alom entered his marriage in good faith) and did not contemplate its authority to reweigh the evidence or to conclude that the IJ’s legal conclusions were insufficient. See id. In sum, although the BIA properly reviewed the IJ’s credibility and other factual findings for clear error, it erred by not treating the ultimate determination of whether Alom met his burden as a mixed question of law and fact subject to de novo review. See, e.g., In re Moody, 2012 BIA LEXIS 40, at *1–2. Accordingly, we grant the petition and remand for the BIA to apply the appropriate standards of review. See Upatcha, 849 F.3d at 185–87.
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Speeding up a system that hasn’t mastered the basics of the law and due process. A prescription for disaster. An appellate body that doesn’t know what standards it’s applying (and this is hardly a “new” provision) is in deep trouble, as are those judges and litigants who look to the BIA for “expert” guidance in the law. And, it’s not going to be fixed by “know nothing” politicos at the DOJ!
The ruling from U.S. District Judge Jesse Furman came in response to a request that he halt further proceedings in the trial until the U.S. Supreme Court ruled on what evidence he could consider. The Supreme Court had rejected a very similar request to temporarily stop the litigation just weeks ago, the judge noted.
The judge, who sits in the Southern District of New York, did not hold back his frustration in his 7-page opinion, noting that the Department of Justice had submitted 12 separate requests to delay the proceedings since the Labor Day weekend.
“Unless burdening Plaintiffs and the federal courts with make-work is a feature of Defendants’ litigation strategy, as opposed to a bug, it is hard to see the point,” Furman wrote.
All along, the judge has expressed a desire to move the case along quickly, recognizing that any decision he makes is likely to be appealed to higher courts and that the issue needs to be resolved quickly so that the Census Bureau has time to print the census forms.
“Enough is enough,” Furman wrote in his Tuesday ruling.
The lawsuit ― brought by 18 states, the District of Columbia, several cities and a handful of immigrant groups ― argues that the decision to add the citizenship question was motivated by discriminatory intent. They also say the decision should be set aside on the grounds that it was “arbitrary and capricious.”
In this latest effort to stall the proceedings, the Justice Department said that doing so would help conserve judicial resources, an argument the judge dismissed as “galling.”
“If Defendants were truly interested in conserving judicial resources, they could have avoided burdening this Court, the Second Circuit, and the Supreme Court with twelve stay applications over the last eleven weeks that, with one narrow exception, have been repeatedly rejected as meritless,” Furman wrote. “Instead, Defendants would have focused their attention on the ultimate issues in this case, where the attention of the parties and the Court now belongs.”
Kelly Laco, a Justice Department spokeswoman, declined to comment on Furman’s ruling.
The Justice Department appealed this latest motion to the U.S. Court of Appeals for the 2nd Circuit even before Furman had ruled on it ― a highly unusual move that clearly annoyed the judge, who suggested the department’s conduct in the case was sanctionable.
“Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether,” the judge wrote. “That conclusion is reinforced by the fact that Defendants, once again, appealed to the Second Circuit even before this Court had heard from Plaintiffs, let alone issued this ruling on the motion.”
Furman also noted that the 2nd Circuit had already denied that appeal as “premature.”
Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood, who is leading the case for the plaintiffs, praised Furman’s decision.
“We agree with Judge Furman: enough is enough,” Spitalnick said in a statement.
Seems like it’s past time for the courts and bar associations to impose sanctions on the DOJ attorneys for their widespread unethical behavior and bad faith in conducting litigation in behalf of this scofflaw Administration!
2nd Cir: “The BIA decision rested on the observation that there was no “realistic probability” that New York would apply NYPL §221.45 to conduct outside the generic federal felony. That was error because the state statute on its face punishes conduct classified as a federal misdemeanor.”
WaPo: Customs and Border Protection (CBP) remains below authorized levels despite increasing the job applications received, cutting the time to hire and boosting the percentage of applicants employed.
CNN: Immigrants are already being turned away at the border under Attorney General Jeff Sessions’ recent reinterpretation of asylum law. And advocates for them fear there may be no end to it anytime soon.
AP: The children’s descriptions of various facilities are part of a voluminous and at times scathing report filed in federal court this week in Los Angeles in a case over whether the Trump administration is meeting its obligations under a long-standing settlement governing how young immigrants should be treated in custody.
NYMag: In the eight months following Donald Trump’s inauguration, ICE arrests in the region jumped by 67 percent compared to the same period in the previous year, and arrests of immigrants with no criminal convictions increased 225 percent. During that time, ICE arrested 2,031 people in its New York “area of responsibility,” which includes the five boroughs and surrounding counties. These aren’t unprecedented numbers: ICE arrested almost four times as many people in 2010 in New York as it did last year, and it picks up far fewer people here than in other parts of the country.
Seattle Times: Under two court orders, the government is now reuniting migrant children with their mothers. Although the California court that ordered the reunification may permit continued detention of the families until their asylum claims can be decided, something worse than separation or detention awaits those mothers who are deported: rape and death.
MJ: Earlier this month, as outrage continued over the Trump administration’s family separation policies, another immigration agency quietly introduced several changes that could threaten even more immigrants, many of them here legally, with deportation.
EOIR is once again including the names of immigration judges on its automated case status hotline, reversing course following complaints over the names being removed from the system in March 2018. AILA Doc. No. 16112144
Update on VTC at Varick Street
AILA: Despite advocacy, NY Field Officer Director Tom Decker has made no moves to change the new policy that all NYC detained cases will now be conducted via video teleconferencing (“VTC”) for all hearings.
The New York City Bar issued a report with recommendations on the increasing number of ICE civil arrests being conducted in and around New York State courthouses, stating that if continued, “this practice poses a threat to the New York State court system’s ability to ensure access to justice….” AILA Doc. No. 18072303
In this blog post, AILA Policy Counsel Jason Boyd highlights recent tweets from the president that attack due process for asylum seekers and explains how and why, if implemented, such changes would violate U.S. asylum laws. AILA Doc. No. 18071636
On 7/16/18, Judge Dana Sabraw granted an interim stay of removal for class members who may be subject to deportation. (Ms. L.; et al., v. ICE, 7/16/18) AILA Doc. No. 18060800
ICE provides guidance to OPLA attorneys litigating administrative closure in the wake of the Attorney General’s precedent decision in Matter of Castro-Tum. Guidance obtained from the blog, Immigration Courtside. AILA Doc. No. 18072074
DHS announced the extension of the Temporary Protected Status (TPS) designation for Somalia for 18 months, through March 17, 2020. Further details, including information about the re-registration process and employment authorization documents, will appear in a Federal Register notice. AILA Doc. No. 18071931
EOIR provided a user manual on its expanded electronic filing pilot that explains the procedures for participation. Participation in the pilot program is on a voluntary basis, and pilot participants must adhere to the procedures in this manual, effective July 16, 2018. AILA Doc. No. 18072072
Ah, another day, another major mistake by the BIA affecting Due Process and individuals’ lives. Sadly, nobody seems interested in solving the problem except the “New Due Process Army.” Absurdly, scofflow, child abuser Attorney General Jeff Sessions seeks to further truncate immigrants’ rights and to “speed up” an already broken system even as the wheels come off! The Second Circuit case is Hylton v. Sessions.
Hong Fei Gao v. Sessions, 2d Cir., May 25, 2018, published
PANEL: WINTER and CHIN, Circuit Judges, and KORMAN, Judge.*
Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.
OPINION BY: JUDGE CHIN
SUMMARY OF HOLDING (From Decision):
These petitions for review heard in tandem challenge two decisions of the Board of Immigration Appeals (the ʺBIAʺ), affirming decisions by two Immigration Judges (ʺIJsʺ), denying asylum, withholding of removal, and protection under the Convention Against Torture (ʺCATʺ) to two petitioners seeking relief from religious persecution in China on adverse credibility grounds. During removal proceedings, petitioners testified regarding the medical attention they received for injuries they sustained from police beatings. The IJs and the BIA relied substantially on the omission of that information from petitionersʹ initial applications and supporting documents to determine that petitioners lacked credibility.
On appeal, petitioners principally challenge the agencyʹs adverse credibility determinations. In light of the totality of the circumstances and in the context of the record as a whole, in each case we conclude that the IJ and BIA erred in substantially relying on certain omissions in the record. Accordingly, we grant the petitions, vacate the decisions of the BIA, and remand the cases to the BIA for further proceedings consistent with this opinion.
KEY QUOTE:
For cases filed after May 11, 2005, the effective date of the REAL ID Act, Pub L. No. 109‐13, 119 Stat. 231 (2005), ʺan IJ may rely on any inconsistency or omission in making an adverse credibility determination as long as theʹtotality of the circumstancesʹ establishes that an asylum applicant is not credible,ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The agency may base a credibility finding on an asylum applicantʹs ʺdemeanor, candor, or responsivenessʺ; the ʺinherent plausibilityʺ of his account; the consistency among his written statements, oral statements, and other record evidence; and ʺany inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicantʹs claim, or any other relevant factor.ʺ 8 U.S.C. § 1158(b)(1)(B)(iii). Even where the agency ʺrelies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential.ʺ Xiu Xia Lin, 534 F.3d at 167 (quoting Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir. 2006)). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations based on omissions following the REAL ID Act.
First, although the REAL ID Act authorizes an IJ to rely on ʺanyinconsistency or omission in making an adverse credibility determination,ʺ even one ʺcollateral or ancillaryʺ to an applicantʹs claims, id. at 167, the Act does not give an IJ free rein. The REAL ID Act does not erase our obligation to assess whether the agency has provided ʺspecific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding.ʺ Id. at 166 (quoting Zhou Yun Zhang, 386 F.3d at 74); accord Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (ʺThe REAL ID Act did not strip us of our ability to rely on the institutional tools that we have developed, such as the requirement that an agency provide specific and cogent reasons supporting an adverse credibility determination, to aid our review.ʺ). Thus, although IJs may rely on non‐material omissions and inconsistencies, not all omissions and inconsistencies will deserve the same weight. A trivial inconsistency or omission that has no tendency to suggest a petitioner fabricated his or her claim will not support an adverse credibility determination. See Latifi v. Gonzales, 430 F.3d 103, 105 (2d Cir. 2005) (per curiam) (remanding where we found ʺany potential discrepancies that might exist to be far from ʹsignificant and numerous,ʹ but rather insignificant and trivialʺ); accord Shrestha, 590 F.3d at 1044 (noting thatʺtrivial inconsistencies that under the total circumstances have no bearing on a petitionerʹs veracity should not form the basis of an adverse credibility determinationʺ); Kadia v. Gonzales, 501 F.3d 817, 821 (7th Cir. 2007) (faulting IJ forʺfail[ing] to distinguish between material lies, on the one hand, and innocent mistakes, trivial inconsistencies, and harmless exaggerations, on the other handʺ).3
Second, although ʺ[a] lacuna in an applicantʹs testimony or omission in a document submitted to corroborate the applicantʹs testimony . . . can serve as a proper basis for an adverse credibility determination,ʺ Xiu Xia Lin, 534 F.3d at 166 n.3, we also recognize that ʺasylum applicants are not required to list every incident of persecution on their I–589 statement,ʺ Lianping Li v. Lynch, 839 F.3d 144, 150 (2d Cir. 2016) (per curiam) (quoting Pavlova, 441 F.3d at 90); see also Secaida‐Rosales v. INS, 331 F.3d 297, 308 (2d Cir. 2003) (noting that an applicantʹsʺfailure to list in his or her initial application facts that emerge later in testimony will not automatically provide a sufficient basis for an adverse credibility findingʺ), superseded by statute on other grounds as recognized in Xiu Xia Lin, 534 F.3d at 167; accord Pop v. INS, 270 F.3d 527, 531‐32 (7th Cir. 2001) (ʺWe hesitate to find that one seeking asylum must state in his or her application every incident of persecution lest the applicant have his or her credibility questioned if the incident is later elicited in direct testimony.ʺ); Abulashvili v. Attorney Gen. of U.S., 663 F.3d 197, 206 (3d Cir. 2011). Because of this tension, although we have noted in dictum that an inconsistency and an omission are ʺfunctionally equivalentʺ for adverse credibility purposes, Xiu Xia Lin, 534 F.3d at 166 n.3, in generalʺomissions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony,ʺ Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014). Cf. Lianping Li, 839 F.3d at 150 (upholding adverse credibility determination where petitionerʹs ʺasylum application did not simply omit incidents of persecution. . . . [but rather] described the same incidents of persecution differentlyʺ).
An example of a trivial inconsistency that is entitled to little if any weight is the difference between Gaoʹs hearing testimony that he was interrogated by the police ʺfour timesʺ and his application statement that he was interrogated ʺseveral times.ʺ The BIA correctly held that this ʺdiscrepancyʺ did not support an adverse credibility determination. Likewise, the difference between September 1, 2010 and September 4, 2010 as the date when Shao contacted his cousin is a trivial discrepancy.
Although the federal evidentiary rules do not apply in immigration proceedings, Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (per curiam), it is nonetheless instructive to analogize the use of omissions in adverse credibility determinations to the use of a witnessʹs prior silence for impeachment. In the latter context, we have indicated that ʺ[w]here the belatedly recollected facts merely augment that which was originally described, the prior silence is often simply too ambiguous to have any probative force, and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment.ʺ United States v. Leonardi, 623 F.2d 746, 756 (2d Cir. 1980) (citation omitted). In addition, the probative value of a witnessʹs prior silence on particular facts depends on whether those facts are ones the witness would reasonably have been expected to disclose. See Jenkins v. Anderson, 447 U.S. 231, 239 (1980) (ʺCommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted.ʺ(emphasis added)). In the immigration context, in assessing the probative value of the omission of certain facts, an IJ should consider whether those facts are ones that a credible petitioner would reasonably have been expected to disclose under the relevant circumstances.
Finally, the REAL ID Act requires IJs to evaluate each inconsistency or omission in light of the ʺtotality of the circumstances, and all relevant factors,ʺ8 U.S.C. § 1158(b)(1)(B)(iii). That requirement is consistent with our well‐established rule that review of an agencyʹs adverse credibility determination ʺis conducted on the record as a whole.ʺ Tu Lin, 446 F.3d at 402; see also Xiu Xia Lin, 534 F.3d at 167 (an applicantʹs testimony must be considered ʺin light of . . . the manner in which it hangs together with other evidenceʺ (citation omitted)); accord Shrestha, 590 F.3d at 1040 (ʺ[T]he totality of the circumstances approach also imposes the requirement that an IJ not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result.ʺ). Thus, ʺan applicantʹs testimonial discrepancies ‐‐ and, at times, even outright lies ‐‐ must be weighed in light of their significance to the total context of his or her claim of persecution.ʺ Zhong v. U.S. Depʹt of Justice, 480 F.3d 104, 127 (2d Cir. 2007). An IJ must also ʺʹengage or evaluateʹ an asylum applicantʹs explanations for apparent inconsistencies in the record.ʺ Diallo v. Gonzales, 445 F.3d 624, 629 (2d Cir. 2006) (quoting Latifi, 430 F.3d at 105); see also Cao He Lin v. U.S. Depʹt of Justice, 428 F.3d 391, 403 (2d Cir. 2005) (ʺAbsent a reasoned evaluation of [petitionerʹs] explanations, the IJʹs conclusion that his story is implausible was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting her conclusion.ʺ).
II. Application
In light of the foregoing principles, we conclude that in both cases, the IJs and the BIA erred by substantially relying on certain inconsistencies and omissions that had no tendency to show that petitioners fabricated their claims when considered in light of the totality of the circumstances and in the context of the record as a whole. Because we cannot confidently predict that the IJs would have adhered to their adverse credibility determinations absent these erroneous bases, we remand for further evaluation.
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So, while Jeff Sessions is busy with a “nuclear attack” on asylum law and Constitutional Due Process, some U.S. Immigration Judges and BIA Appellate Immigration Judges are equally busy just mis-applying well-established legal standards to screw asylum seekers.
Rather than looking at the record as a whole, as required by law, and giving asylum seekers the “benefit of the doubt,” too many Immigration Judges and BIA Judges are playing “gotcha” with the law — using minor or irrelevant variances in testimony or minor gaps in proof to justify bogus adverse credibility findings and asylum denials. Obviously, as backlogs stretch out, the problems inherent in “fly-specking” an applicant’s testimony about events many years in the past increases. That’s one of the reasons why Sessions’s insane bid to shove more properly administratively closed removal cases back onto “active dockets,” and to discourage the further removal of “low priority” cases from active dockets, is totally and intentionally destructive to an already failing court system.
The REAL ID ACT was effective in 2005, well over a decade ago. So, its proper application is not “rocket science.” It’s “Immigration Judging 101.”
Yet unfair applications of the law to wrongfully discredit and deny asylum seekers persists in the Immigration Courts and seems to breeze through at least some BIA “Panels” without critical review or analysis. I put “Panels” in quotes because all too often these days the appellate review is conducted by a “Panel of One” judge.
And since the BIA Appellate Immigration Judges now come almost exclusively from Government backgrounds, they are very likely to share some of the same “blind spots” as to the reality of presenting an affirmative asylum application in Immigration Court. If any of them have done it (and most haven’t), it was decades ago when conditions and the law were very different. They all too often draw inferences and reach conclusions that any competent immigration practitioner would know are way out of line with reality.
How are these endemic problems affecting fairness and Constitutional Due Process in the Immigration Courts, and potentially destroying and endangering lives of asylum applicants, solved by cranking up judicial productivity, trying to reverse long-standing precedents that aid asylum seekers pursuing legal protections, and making biased public anti-asylum statements? How is justice and Due Process served by gratuitously attacking immigration lawyers and disingenuously seeking to eliminate laws that provide the already meager and inadequate protections that asylum seekers now have? Yet this is precisely what Sessions’s program is!
The Immigration Court system needs reform to guarantee unbiased, high quality, fair treatment of asylum seekers and other individuals fighting for their very lives. Jeff Sessions is dedicated to the eradication of Due Process and turning the Immigration Courts into a “Death Railroad” for asylum seekers and other migrants. He must be stopped before he destroys our entire U.S. justice system — apparently his ultimate aim.
Join the New Due Process Army and stand up to Jeff Sessions and the other bullying, scofflaw, White Nationalists in the Trump Regime.
Dan Kowalski, Editor @ LexisNexis Immigration Community sends this item:
Obeya v. Sessions, Mar. 8, 2018 – “Clement Obeya, a lawful permanent resident of the United States, was convicted of petit larceny under New York law. The government sought to remove Obeya for his conviction, treating it as a “crime involving moral turpitude.” The Immigration Judge and Board of Immigration Appeals found that Obeya was removable based on his conviction, but this Court remanded due to the agency’s failure to apply BIA precedent holding that larceny involves moral turpitude only when it is committed with the intent to deprive the owner of property permanently. On remand, the BIA again found Obeya removable, holding that his offense involved moral turpitude by applying a new rule, announced in another case that same day, expanding the types of larceny that qualify as such crimes. Obeya challenges the BIA’s retroactive application of that rule to his case. We GRANT review and REVERSE the BIA’s order.”
[Hats off to Richard W. Mark!]
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Go on over to LexisNexis at the above link for the link to the 2d Circuit’s full decision.
As Gonzo & Co. move to speed up the Deportation Railway, the current quality control problems evident at the BIA, illustrated by decisions like this, will be multiplied.
PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.
OPINION BY: Judge Chin
KEY QUOTE/SUMMARY:
Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.
The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.
ANOTHER KEY QUOTE:
Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).
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So, here’s what Chevron really says:
“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”
But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.”
And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.
Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made. Seems like a combination of fundamental fairness and common sense.
There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.
Here’s my previous post on Justice Gorsuch and Chevron:
Zambrano v. Sessions, 4th Cir., 12-05-17 (published)
PANEL: KEENAN and WYNN, Circuit Judges, and John A. GIBNEY, Jr., United States District Judge for the Eastern District of Virginia, sitting by designation.
OPINION BY: Judge Gibney
KEY QUOTE:
“This Court agrees with the logic of the Ninth, Second, and Sixth circuits. New facts that provide additional support for a pre-existing asylum claim can constitute a changed circumstance. These facts may include circumstances that show an intensification of a preexisting threat of persecution or new instances of persecution of the same kind suffered in the past. The Court remands to the BIA and leaves the determination of whether the facts on record constitute changed circumstances which materially affect the petitioner’s eligibility for asylum to the BIA’s sound discretion.
III.
The BIA erred when it categorically held that additional proof of an existing claim
does not establish changed circumstances. Accordingly, we grant the petition for review, vacate the BIA’s order, and remand the case to the BIA for further consideration in light of this opinion.”
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This is a very important decision for asylum applicants in the Fourth Circuit, as this situation arises frequently in Immigration Court.
With three well-reasoned Circuit decisions already in the books, why is the BIA holding out for a discredited rationale? How many individuals who weren’t fortunate enough to have Ben Winograd or an equally talented lawyer argue for them in the Court of Appeals have already been wrongfully removed under the BIA’s discredited rationale? Where’s the BIA precedent adopting this rationale and making it binding on IJ’s nationwide before more individuals are wrongfully removed? How is this “through teamwork and innovation being the world’s best administrative tribunal guaranteeing fairness and due process for all?”
The answer to the latter question is sadly obvious. While the BIA’s problems predated his tenure, the attitude of Attorney General Jeff Sessions, as demonstrated in his recent pronouncement on so-called “Immigration Court efficiency” elevates “false efficiency,” speed, and cranking out removals above fundamental fairness and Due Process. Why have an elaborate administrative court system that doesn’t put Due Process first and foremost as “real” (non-captive) courts generally do? Why not just send all removal cases to U.S. District Judges and Magistrate Judges who make Due Process and fairness “job one” and aren’t preoccupied with “jacking up” removal statistics to please political bosses?
And, I’d like to see how far the DHS/Sessions’s (they are pretty much the same these days) boneheaded, arrogant, unrealistic, and wasteful “no PD” policy would get in a “real” court system where widespread, reasonable, and prudent use of PD by prosecutors is understood and accepted as an essential part of fairness, efficiency, and responsible use of publicly-funded judicial resources. Indeed, in some of my past “off the record” conversations with Article III Judges, they were absolutely flabbergasted to discover the unwillingness of DHS to meaningfully exercise “PD” in the pre-Obama era and to learn that at DHS the “cops,” rather than the prosecutors were responsible for setting PD policies!
“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”
“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.
His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.
Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”
But Siagha’s access to a lawyer in immigration court is the exception.
There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.
But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.
The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.
According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.
So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)
Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.
As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.
The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.
From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.
But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.
This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”
I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”
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Read Dara’s full article at the link.
No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and reasonable access to competent counsel.
I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.”Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.
I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)
When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.
That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.
By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!
In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.
No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.
The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.
Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.
I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!” They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.
Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!
“NEW YORK—The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.
The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.
It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination does protect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.
Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’t happen—because the executive branch is expected to speak with one voice on legal affairs. But the EEOC’s commissioners serve fixed terms and haven’t gotten the memo placing politics above the law yet. And so they were not exactly delighted to see political appointees at the Justice Department trash their theories in court on Tuesday when the two agencies faced off over what it means to discriminate “because of sex.”
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That set the stage for Mooppan’s appearance, which, to put it mildly, did not go well at all. Chief Judge Katzmann immediately wanted to know: Why didn’t the DOJ defer to the EEOC on Title VII, as it normally does? Mooppan’s basic reply was that the Justice Department is the nation’s “largest employer”—meaning, in short, that it has an interest in retaining its capacity to fire gay people for being gay.
“What is the process with regard to the EEOC and the DOJ in terms of filing a brief?” Katzmann followed up.
“That’s a complicated question,” Mooppan responded.
“Try to help us,” Katzmann implored. He also wanted to know what career attorneys at the DOJ’s civil rights division think about the agency’s position. But Mooppan wouldn’t answer: “That’s not appropriate for me to disclose,” he told the judge. Katzmann looked alarmed. Judge Pooler jumped in: “Does the Justice Department sign off on a brief that EEOC intends to file?” she wondered.
“That’s not appropriate for me to disclose,” Mooppan repeated.
“It’s procedure, not internal deliberations,” Pooler responded.
“I don’t think it’s appropriate,” Mooppan said again, stonewalling. Now a majority of the judges looked irritated. As a general rule, attorneys are supposed to answer questions posed by the court, not dodge them as though they’re taking the Fifth. It was a terrible start for Mooppan, and both Pooler and Katzmann looked genuinely perplexed that a DOJ attorney would show such blatant disrespect. Finally, Judge Dennis Jacobs broke the impasse: “I, for one, am prepared to proceed on the assumption that you’re here,” he said.”
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Read the entire rather amazing, if disturbing, article at the link. Accounts of the daily doings of “Gonzo’s Justice” could be ripped right from the headlines of The Onion. But, sadly they aren’t. Every day that Gonzo serves in the office for which he is jaw-droppingly unaqualified diminishes the American legal system and our country as a whole.
Liz was right. She might even have understated the case against Gonzo. Happy to be retired. Pity those still at the DOJ. Move over, John Mitchell, you’ve got some real competition for “Worst Attorney General In Modern American History.” I feel like asking for a recount when Betsy De Vos allegedly edged out Gonzo for “Worst Cabinet Member!” Could it be Russian interference?
