"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Some Article III Judges recognize that “deport at any cost” at EOIR is a “bad look” for American justice! https://www.flickr.com/photos/rasputin243/ Creative Commons License
In this case, involving a woman and her two children, EOIR engaged in “Aimless Docket Reshuffling” by unilaterally moving the respondents hearing to an earlier date — arguably a due process denial in and of itself given the coordination and preparation necessary to competently present merits cases in Immigration Court. Then, EOIR failed to give legally sufficient notice of the arbitrarily accelerated hearing — a common occurrence in this dysfunctional and poorly administered system, as most practitioners would tell you.
Indeed, the defective notice was returned to EOIR, so the IJ knew that the respondent was never properly notified of the hearing. Nevertheless, ICE improperly moved for an in absentia order and the the IJ erroneously granted it.
Upon learning of the illegal “in absentia” order entered against her, the respondent promptly moved to reopen, providing unrebutted evidence of non-receipt of notice. The IJ erroneously denied the motion.
On appeal, the BIA compounded this farce by wrongfully affirming the IJ’s clearly wrong decision. Instead of confessing error, OIL advanced frivolous arguments for dismissal, falsely claiming dilatory action by the respondent, even though there is no “time bar” on a motion to reopen for defective notice.
The Ninth Circuit summarily reversed in an (unfortunately) unpublished decision. Circuit Judges Friedland and Paez, obviously and justifiably upset by this totally preventable travesty, were motivated to enter a separate concurring opinion commenting on the unprofessional “clown show” 🤡 operating at EOIR:
FRIEDLAND, Circuit Judge, with whom Circuit Judge PAEZ joins, concurring:
When the date of a removal hearing changes, the Government is required to provide a Notice of Hearing (“NOH”) containing the new date and time. 8 U.S.C. § 1229(a)(2)(A). If a person fails to appear for her hearing, she shall be removed in absentia only “if the Service establishes by clear, unequivocal, and convincing evidence that the written notice [of the hearing] was so provided.” Id. § 1229a(b)(5)(A).
Here, when Ontiveros Lozano’s removal hearing date was moved up, the Government mailed her an NOH, but it was returned as undeliverable over a month before her scheduled hearing. Ontiveros Lozano therefore indisputably did not receive the required notice, and the Government knew this. Yet the Government requested and received an in absentia removal order against Ontiveros Lozano when she did not appear for her scheduled hearing. In doing so, the Government violated the explicit statutory requirement in § 1229a(b)(5)(A).
The Government now argues that Ontiveros Lozano’s removal proceedings should not be reopened because she was not diligent in discovering the Government’s conduct and because she has forfeited her challenge to the entry of the in absentia removal order.
The Government’s duty should be to seek justice, not to deport people at any cost. In my view, it lost sight of that duty here.
The full ugliness and dysfunction of EOIR and the DOJ are on display here:
Aimless Docket Reshuffling in action;
Defective notice;
Violation of statutory requirements;
Defective administration of justice;
Unethical actions by ICE counsel in requesting an in absentia order knowing full well that the respondent had never received notice;
Stunningly poor trial judging (2X);
Horrible appellate judging;
Frivolous defense of an unjust decision by OIL.
This system is broken! It’s promoting injustice and clogging the Article III Courts with poor quality work product by USG “judges” and attorneys who aren’t up to or well-qualified for their jobs. The focus on “removal at any cost” rather than due process and justice is unconstitutional and unethical. It comes from poor leadership from the Attorney General on down! The only question is why isn’t anybody in charge motivated to fix it!
A quarter century ago, the “EOIR vision” was a noble one: “Through teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all!” It was even posted on the website! Not only has that noble vision disappeared, both literally and figuratively, but over the last two decades Administrations of both parties have degraded justice and functionality at EOIR — some intentionally, some negligently, sometimes a toxic combination of the two.
In the absence of Article I legislation, what EOIR and the DOJ immigration bureaucracy need is a thorough housecleaning, new dynamic, due-process-focused expert leadership, and better judges at both levels. Letting EOIR continue its “death spiral,” as the Biden Administration has done, is totally unacceptable!🤯
Many thanks and appreciation to one of our newest Round Table 🛡️ members, Judge Sandy Hom, recently retired from the New York Immigration Court, for spotting this unpublished opinion and forwarding it! It’s the kind of common purpose, collegiality, and teamwork that is largely absent from today’s dysfunctional EOIR!
Human Rights First Welcomes Resettlement, Condemns Bars to Asylum Seekers
WASHINGTON – Human Rights First welcomes today’s announcement of the Biden administration’s plans to expand refugee resettlement and family reunification parole in the Americas while reiterating the organization’s call for the administration to abandon its planned asylum ban and the conduct of fast-track credible fear interviews in Border Patrol custody.
“The Biden administration is rightly expanding refugee resettlement from the Americas, an overdue step towards addressing a long-standing gap for people in need of international protection,” said Senior Director of Refugee Protection Eleanor Acer. “This initiative should swiftly bring refugees to safety and not be used to reduce the resettlement of refugees from other regions. The Biden administration should focus on measures like increasing refugee resettlement and regular pathways and abandon its plan to impose an asylum ban that would be a legal, moral, and political mistake.”
In today’s announcement, the Biden administration confirmed its plans to implement its proposed ban on asylum, which would violate U.S. and international refugee law and has sparked widespread opposition from faith leaders, civil rights organizations, unions, and many Members of Congress. People seeking asylum at United States borders will be subjected to fast-track credible fear interviews while in Border Patrol custody and barred under the asylum ban, fueling wrongful deportations to persecution and torture.
“The Biden administration rightly ended and should not resurrect Trump-era policies that conduct credible fear interviews in Border Patrol custody where access to legal counsel is restricted,” Acer said. “This due process disaster, along with the imposition of the planned asylum ban, will be a sham process for deporting refugees who qualify for asylum. Instead of implementing policies that punish people seeking asylum, the United States should lead in upholding refugee protections and human rights.”
Human Rights First and other groups have long urged the U.S. government to step up refugee resettlement from the Americas and offer safe pathways for migration. We recommend the Biden administration focus on transformational steps like increasing refugee resettlement and regular pathways and maximizing asylum capacity at ports of entry rather than pursuing its misguided plan to impose a new bar on asylum.
Today’s announcements are part of the Biden administration’s plans to address regional migration and initiate punitive policies as the use of the Title 42 public health order ends on May 11. Human Rights First has repeatedly documented human rights abuses inflicted by the Title 42 policy, including over 13,000 attacks against migrants and asylum seekers blocked in or expelled to Mexico under Title 42 during the Biden administration. The organization has also repeatedlydetailed the harms and violations of law that would be caused by the Biden administration’s proposed ban on asylum.
To me, the DHS/DOS statement (referenced by HRF) sounds like folks who expect to fail, want to “tamp down” expectations, and intend to blame the victims (asylum seekers and their advocates) and Congress for their (likely) failure.
Almost everybody agrees that reforms in our immigration system are overdue. But, there is no agreement whatsoever in Congress on what those reforms should be, as shown by the absolutely insanely “bonkers” proposal from the House GOP which seeks to make everything infinitely worse!
So, we’re not going to get the needed expansions and simplification of our legal immigration system, including more generous treatment of refugees and asylum seekers, in the foreseeable future. That’s not a surprise! After two plus years in office, the Biden Administration should have foreseen the obvious and come up with ways to make the current law work.
As almost any expert will tell you, our existing legal asylum system can be made to work in a fair, timely, and reasonable manner at the borders. But, that’s not going to happen with the current personal, poor leadership, bad attitudes, lousy precedents, and a badly failed Immigration Court system.
A fair, functional, properly run asylum system, in conjunction with a robust realistic overseas refugee program, will result in more individuals being admitted into the U.S. as legal immigrants through the refugee and asylum processes. That’s how they are supposed to work (but generally have not) as key components of our legal immigration system.
It’s also a fulfillment of our important international obligations that we intentionally took on after our questionable performance on Jews fleeing Europe just prior to, and even during, WWII. While we can absorb, even need, more legal immigrants, Administrations don’t want to admit and deal with the obvious. Forced refugee migrations aren’t going to disappear any time in the foreseeable future, much as politicos of both parties might want them to!
Yes, these are legacies of the Trump Administration, and, to a lesser extent, the Obama Administration. But, one of the reasons why the Biden Administration is in office is to make things work, not just to whine and wring their hands.
Sure, the Trump Administration undermined the rule of law (and, I might add, largely got away with it). But, that’s no excuse for Biden and Harris not to have listened to experts (like, for example, Eleanor Acer), replaced personnel at DHS and DOJ with “practical experts” who can get the job done, and established at least a working operational framework for a successful, orderly, refugee and asylum admission system. Over-relying on coercive and inhumane detention, denial-oriented decision-making, bogus bars to asylum, criminal prosecutions, threats, and a dysfunctional Immigration Court system are NOT that framework.
Of course the Administration’s proposals to increase refugee admissions, reprogram resources, and develop a better resettlement program for refugees and asylees in the U.S. are good ideas. But, they are basically “no brainers” that HRF and other experts urged even before “day one” of this Administration. They should be in place and operating by now! We’ll see how much due process and fairness this Administration can actually deliver, or whether their proposed solutions devolve into yet another “uber-enforcement fueled” fiasco with the most vulnerable humans as the victims!
From the dissent by U.S. District Judge Edward R.Korman, EDNY, sitting by designation:
Goulart is not a sympathetic character. I can understand the desire to remove convicted burglars from this country. Indeed, Judge VanDyke questions why I have bothered to “champion” the cause of a convicted burglar. The answer should be obvious. The judicial oath, which was adopted in the Judiciary Act of 1789, requires us to “administer justice without respect to persons, and do equal right to the poor and to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). We take such an oath, which derives from biblical teachings, see Deuteronomy 1:17, so as not to be blinded by our like or dislike of the parties. We are not called to decide whether Goulart is a good person, but rather whether a person who has been banished from the United States without legal justification should be permitted to seek to return. The Supreme Court has held that the precise statute under which Goulart was deported violates the Constitution. Principles of law and equity require that he be permitted to move for reconsideration in this case. I respectfully dissent.
***********************
Wow! Three opinions on a three-judge panel! Been there, done that! Reminds me of my long gone days on the “Schmidt BIA” when we all took our jobs seriously, even if it often didn’t result in “fake unanimity” (the watchword of today’s dysfunctional BIA).
For those who like to apply “ideological analysis” to Article III decisions, this one doesn’t “fit the mold:”
Judge Richard A. Paez (“majority” opinion) is a Clinton appointee.
Judge Lawrence VanDyke (concurring opinion) is a Trump appointee.
Judge Edward R. Korman (dissenting opinion) is a Reagan appointee.
That being said, the majority’s rationale that a deported respondent should have been a “legal clairvoyant,” predicting the eventual Supreme Court decision finding the statute under which he was convicted unconstitutional, is a piece of absurdist legal sophistry. Wonder what the result might have been if the panel majority didn’t look at him as an “alien bank robber,” not deserving of fair treatment or legal rights? Reminds me of what my former “boss” the late “Iron Mike” Inman used to yell at me during heated arguments at the “Legacy INS OGC:” “What did they teach you at that law school!”
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Nothing to see here, fellas, just the private dynamics of a personal relationship! Tough noogies, baby! You should have been born a man. It’s your own fault! Ha! Mercy and compassion? Those aren’t in any of our precedents, are they?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons“Expert, what expert? We’re the experts! That is, in misogyny, abuse of asylum seekers of color, and specious legal reasoning. And, Garland is letting us get away with it! Whew, for a moment I thought he might have been a ‘real’ judge, but seems he’s just like us. Think I’ll jump for joy! Four more years of unbridled abuse of the most vulnerable and helpless, and I’ll be eligible to retire! Shooting down female asylum seekers for no good reason is like shooting fish in a barrel, just like Jeffy Gonzo and Billy the Bigot taught us! Wonder how many we can kill this year? Happy hunting! But, let’s stay out of the 9th Circuit. It’s dangerous territory. I hear the 5th Circuit loves misogynists and White Nationalists!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
PANEL: Susan P. Graber, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
OPINION BY: Judge Graber
CONCURRING OPINION: Judge Paez
COUNSEL: Elaine J. Goldenberg (argued), Munger Tolles & Olson LLP, Washington, D.C.; Sara A. McDermott, Munger Tolles & Olson LLP, Los Angeles, California; Richard Caldarone, Julie Carpenter, and Rachel Sheridan, Tahirih Justice Center, Falls Church, Virginia; for Petitioner.
Timothy Bo Stanton (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Office of Immigration
ROGRIGUEZ TORNES V. GARLAND 5
Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Betsey Boutelle, DLA Piper LLP (US), San Diego, California; Anthony Todaro, Jeffrey DeGroot, and Lianna Bash, DLA Piper LLP (US), Seattle, Washington; for Amicus Curiae National Immigrant Women’s Advocacy Project.
SUMMARY BY COURT STAFF:
Immigration
The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion.
The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution.
Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ROGRIGUEZ TORNES V. GARLAND 3
political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal.
Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to
4 ROGRIGUEZ TORNES V. GARLAND
Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution.
The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal.
Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
CONCURRING OPINION:
PAEZ, Circuit Judge, concurring:
I join Judge Graber’s fine opinion in full. I write separately on a point the court’s opinion does not address. In rejecting Ms. Rodriguez Tornes’s political opinion claim, the BIA suggests that the presence of a “personal relationship” motivation for intimate partner violence implies that there were no intersectional or additional bases for the violence Ms. Rodriguez Tornes experienced. The court’s opinion thoroughly documents the record evidence, which the BIA ignored, demonstrating how Ms. Rodriguez Tornes was targeted for violence by her domestic partners on account of her feminist political opinion. The BIA, however, also ignored extensive record evidence from expert witness Prof. Nancy Lemon, a leading authority on domestic violence, that directly rejects the BIA’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
In contrast to the BIA’s “personal relationship” view of domestic violence,1 Prof. Lemon draws on more than three
1 The BIA cites Matter of A-B-, 27 I&N Dec. 316, 338–39 (A.G. 2018) as the basis for its assumption.
22 ROGRIGUEZ TORNES V. GARLAND
decades of research, writing, legal representation, and lawmaking to explain that “the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence.” She analyzes data from the U.S. Department of Justice, Bureau of Justice Statistics and studies from leading medical and social science publications to highlight “compelling evidence that heterosexual domestic violence is, in significant part, motivated by bias against women and the belief that men are entitled to beat and control women.” Prof. Lemon summarizes cross-cultural studies within the United States and internationally that demonstrate “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners.”
In her report, which the IJ referenced in her decision, Prof. Lemon provides a lengthy examination of social science research exploring how particular behaviors exhibited by male abusers—including emotional abuse, sexual abuse, marital rape, economic abuse, blaming, guilt and using children—are each tied to social belief systems that “men are entitled to dominate and control women because the male sex is considered superior” and operate to “exploit the traditional socially constructed roles, identities, duties and status of women in intimate relationships.” In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, Prof. Lemon explains that “domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. . . . Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be
ROGRIGUEZ TORNES V. GARLAND 23
exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.”
The record evidence of Prof. Lemon’s rigorous expert analysis undermines the BIA’s unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of Prof. Lemon’s expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA’s outdated view of domestic violence as a quirk within a “personal relationship.”2 Thus, the BIA’s assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.
2 See e.g., Nina Rabin, At the Border Between Public and Private: U.S. Immigration Policy for Victims of Domestic Violence, 7 Law & Ethics Hum. Rts. 109, 111–12 (2013) (“Fifty years ago, domestic violence was widely understood to be a private matter, and the extent to which it was appropriate for the state to intervene was highly contested. Now, domestic violence shelters, state laws and policies specific to the prosecution of domestic violence crimes, and significant state and federal government support for efforts to eradicate domestic violence are all commonplace. Crucial to bringing about this shift in the state’s role vis-à- vis domestic violence victims has been the acknowledgment of the structural roots of domestic violence. When conceived of as a problem tied to gender subordination and pervasive inequality rather than interpersonal conflict, the violence at issue demands a state response.”); Violence Against Women: Victims of the System, 102d Cong., 63 (1991); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991); Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy, 105 Yale L.J. 2117 (1996); Leslye E. Orloff & Janice v. Kaguyutan, Offering A Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95 (2001); see generally Am. Br. of the National Immigrant Women’s Advocacy Project.
*******************
Congrats to all counsel involved for the “good guys.”
Another completely disastrous performance by the BIA!
Bias, sloppiness, legal errors galore, misuse of the appeals process, dissing experts, ignoring evidence, lousy analysis, an ethically questionable remand attempt by OIL, almost every aspect of the unmitigated professional disaster at the BIA and the failed DOJ is on display in this truly terrible parody of justice. These fundamental defects are what has helped generate incredible backlogs that EOIR and DOJ are attempting to cover up and shift blame to the individuals they systematically malign.
This disgraceful muck heap 🤮 won’t be cleaned up by bogus “case processing requirements!” What this system needs is expertise, fairness, due process, quality control, common sense, and human decency — in huge doses! A complete professional makeover!
Among the many good things about the Circuit decision is that it basically limited the impact of the atrociously wrong Sessions “precedent” in Matter of A-B-, even while overlooking the obvious ethical errors in his maliciously biased dicta and the glaring overarching constitutional problem in his improper interference and participation in the quasi-judicial process. This should be Exhibit 1 in why this process needs to be removed from the DOJ, placed in an independent Article I Court, and a new, qualified Appellate Division with real judges — capable of fairly and efficiently adjudicating asylum cases — selected to replace the BIA.
One particularly cruel, senseless, and inane aspect of the BIA’s attempt to “snuff” the respondent’s asylum application: Because of the essentially uncontested CAT grant, she was going to be allowed to remain in the U.S. anyway! So, this was all about illegally depriving an abused refugee woman of color of her ability to get a green card, become eligible for citizenship, and obtain full legal and political rights in our society!
Compare the time and effort expended by the BIA in trying to deprive this woman of her human rights with the carelessness and sloppiness of their legal analysis. That’s what the racist-driven “any reason to deny” culture created by Sessions, Barr, and their toadies at EOIR does to our justice system!
Imagine how much different the “retail level” of American justice would look with real judges and professional administrators, committed to due process, fundamental fairness, and best practices, in charge! Amazingly, that’s what the “EOIR Vision” once was, before the forces of darkness, ignorance, and bias took over the system.
Think of how different the skewed asylum statistics would look if we honored, rather than mocked, our legal obligations to asylum seekers. Think of how many more individuals could fairly and efficiently be welcomed into our country at our borders and abroad in a well functioning system, staffed with professionals, that adhered to the rule of law. Think of how a better, more honest, and more professional Immigration Court could provide positive guidance on how to grant needed protection, rather than gushing forth an endless stream of bogus “how to deny” precedents based on racial and gender bias and specious reasoning.
Professor Nancy Lemon Hastings Law Photo: law.hastings.comProfessor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Obviously, experts like Professor Nancy Lemon, Professor Karen Musalo, and her colleague Blaine Bookey are the types of individuals who should be Appellate Judges at the BIA. The current BIA’s glaring lack of professional competence and its unconscionable abuse of vulnerable asylum seekers, particularly the institutional ignorance and shameless misogyny with which claims by women refugees are treated, has to be one of the darkest and most inexcusable chapters in modern American legal history!
Food for for thought:
How would an unrepresented individual, particularly one in detention or stuck on a street corner in Mexico, be able to prepare, document, and present a case like this to a biased court and then appeal successfully to the Circuit?
How is this system constitutional in any way, shape, or form?
How might the massive investment of resources, time, effort, and expertise in vindicating the legal and human rights of one individual in a broken system be redeployed to promote systemic fairness and efficiency in a court system that actually complied with constitutional due process?
And, we shouldn’t forget that the Biden Administration is still illegally killing off asylum seekers at the border with no due process at all! Cowardly inflicting human misery on the most vulnerable in violation of our Constitution, our laws, and our international obligations has become our “new national pastime!”
We might be averting our eyes from the slaughter now, but history will document and remember what the world’s richest nation did to our fellow humans seeking protection in their hour of direst need! No wonder we must dehumanize “the other” to go on with our daily lives. No wonder that racial and social justice remain elusive, unfulfilled concepts, throughout our society, in today’s “What’s in it for me” atmosphere promoted by many of our politicos!
Quiroz Parada v. Sessions, 9th Cir., 08-29-18, Published
COURT STAFF SUMMARY:
The panel granted Moris Alfredo Quiroz Parada’s petition for review of the Board of Immigration Appeals’ denial of asylum, withholding of removal, and protection under the Convention Against Torture, in a case in which Quiroz Parada, a citizen of El Salvador, sought relief after he and his family were the victims of threats, home invasions, beatings, and killings at the hands of Frente Farabundo Martí para la Liberación Nacional guerillas.
The panel held that the record compelled a finding of past persecution. The panel explained that the Board mischaracterized what Quiroz Parada endured as simply threats against his family and attempts to recruit him, and ignored, among other evidence, his brother’s assassination, the murder of his neighbor as a result of Quiroz Parada’s own family being targeted, his experience being captured and beaten to the point of unconsciousness, repeated forced home invasions, and specific death threats toward his family. The panel concluded that the harm Quiroz Parada and his family suffered rose to the level of past persecution.
Applying pre-REAL ID Act standards, the panel held that the harm Quiroz Parada suffered bore a nexus to a protected ground, as the FMLN guerillas were motivated, at least in part, by his family’s government and military service. The panel noted that it was immaterial that the
FMLN’s attempted conscription of Quiroz Parada would have served the dual goal of filling their ranks in order to carry on their war against the government and pursue their political objectives, because their additional goal of retaliating against the Quiroz Parada family was a protected ground.
The panel held that substantial evidence did not support the agency’s determination that the government successfully rebutted the presumption of future persecution. The panel noted that by the time the IJ considered the country conditions information submitted into the record it was five years out of date, and predated the FMLN’s rise to power in government. The panel explained that the government cannot meet its burden of rebutting the presumption by presenting evidence of the Salvadoran government’s human rights record at a time when the government was run by a different political party, particularly when at the time of the IJ hearing it was run by the very same FMLN who persecuted the Quiroz Parada family. The panel joined the Second Circuit in holding that reliance on significantly or materially outdated country reports cannot suffice to rebut the presumption of future persecution.
The panel concluded that the agency erred as a matter of law in denying Quiroz Parada’s application for CAT relief because it ignored pertinent evidence in the record and erred by construing the “government acquiescence” standard too narrowly. The panel explained that acquiescence does not require actual knowledge or willful acceptance of torture, and that awareness and willful blindness will suffice. The panel further explained that the acquiescence standard is met where the record demonstrates that public officials at any level, even if not at the federal level, would acquiesce in the torture the petitioner is likely to suffer, and that evidence showing widespread corruption of public officials, as the record revealed in this case, can be highly probative on this point. The panel noted that the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government, or at least parts of the Salvadoran government, in the rampant violence and murder perpetrated by the Mara Salvatrucha gang, at whose hands Quiroz Parada fears that he will be killed.
The panel remanded for reconsideration of his CAT claim, an exercise of discretion whether to grant asylum relief, and an appropriate order withholding Quiroz Parada’s removal.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PANEL: Sidney R. Thomas, Chief Judge, Richard A. Paez, Circuit Judge, and Timothy J. Savage,* District Judge.
* The Honorable Timothy J. Savage, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
OPINION BY: Judge Paez
KEY QUOTES FROM OPINION:
Quiroz Parada applied for asylum5 and withholding of removal on September 27, 1994. If he is removed to El Salvador, Quiroz Parada fears he will be persecuted on account of his family status and political opinion. The source of that feared persecution is twofold: the MS gang members seeking revenge on behalf of their FMLN guerilla parents, as well as the FMLN itself—despite the fact that the FMLN is currently a political party, rather than a violent revolutionary movement. Because the FMLN is now the ruling political party, Quiroz Parada does not believe he can safely reside in any part of the country without falling victim to retribution by the FMLN. Moreover, simply laying low is not an option: Quiroz Parada believes the FMLN will learn of his return to the country and have the ability to locate him because he no longer has any Salvadoran documentation and would thus be required to renew all of his documents upon arriving in El Salvador. Quiroz Parada also testified that he is opposed to the FMLN’s “leftist wing” form of democracy and that he would feel compelled to speak out against the FMLN-run government’s policies, which he fears would result in persecution by the government. While Quiroz Parada is aware that the civil war ended several decades ago, he does not believe that the Salvadoran government would prosecute former FMLN guerillas if “they murder people, or behave badly.”6
5 Because Quiroz Parada applied for asylum prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the one-year bar for asylum applications does not apply.See 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a).
6 Regrettably, as with many critical pieces of his testimony, Quiroz Parada’s explanation for why he does not believe in the Salvadoran government’s ability or willingness to prosecute former FMLN members who murder or otherwise attack their former enemies is transcribed as “[indiscernible] and [indiscernible].”
Thirteen years passed before the government took any action on Quiroz Parada’s 1994 asylum application. In May 2007, a Department of Homeland Security (DHS) officer finally interviewed Quiroz Parada. On May 31, 2007, Quiroz Parada’s asylum case was referred to an immigration judge; DHS simultaneously issued a notice to appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(I) for being present in the United States without being admitted or paroled. At a master calendar hearing in February 2008, an IJ sustained the charge of removability. Quiroz Parada requested relief in the form of asylum, withholding of removal, CAT protection, and cancellation of removal.
The delays for Quiroz Parada didn’t end there: nearly five years passed between his February 2008 hearing and his merits hearing before an IJ in November 2012. The government submitted its hearing exhibits back in 2008, including a 2007 Department of State Country Report and a 2007 Department of State Profile on El Salvador. Yet for unknown reasons, the government did not update their exhibits during the years that passed between submission of their exhibits and the actual hearing—despite the fact that the country conditions reports were five years out of date by the time of the merits hearing.
Quiroz Parada, by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims. For example, he submitted a 2010 letter from his sister—written prior to her fleeing the country—imploring him to not return to El Salvador for any reason because of the risk that he will be kidnapped or killed by MS. The letter explained that the “police do[] not help, and they even get killed,” and warned that if he were to come back to the country, “history would repeat itself.” Another one of his sisters sent him a copy of a handwritten threat she received from MS members, which said they knew she “snitched on the barrio” and warned her that if she failed to leave the area by a particular date, her “daughters will suffer the consequences.” His exhibits also included several newspaper articles about the violence perpetrated by MS in Quiroz Parada’s home region; these articles echoed a letter from the National Civil Police of El Salvador describing MS’s crimes, the gang’s pervasiveness in Quiroz Parada’s home region, and how the rampant violence has forced many families to flee.
The long-awaited hearing in November 2012 did not begin on a promising note. Prior to hearing any testimony from Quiroz Parada or argument from his attorney, the IJ conveyed his belief that Quiroz Parada’s asylum claim “may be a lost cause.” Nonetheless, despite the IJ’s significant skepticism, he allowed Quiroz Parada’s attorney to present Quiroz Parada’s case for asylum. On February 8, 2013, the IJ issued a written decision denying Quiroz Parada’s requests for asylum, withholding of removal, CAT protection, and cancellation of removal. The IJ first found that Quiroz Parada was credible under both the pre-REAL ID Act and REAL ID Act standards.7 The IJ then determined that Quiroz Parada had not shown past persecution, but further concluded that even if he had, DHS had rebutted the presumption with evidence of changed country conditions. The IJ also found that Quiroz Parada had not shown an independent well-founded fear of future persecution. Because the IJ determined that Quiroz Parada had not established eligibility for asylum through either past persecution or a well-founded fear of future persecution, Quiroz Parada necessarily failed to meet the higher bar required to obtain withholding of removal. The IJ also rejected Quiroz Parada’s claim for CAT relief.
7 Although the REAL ID Act governs Quiroz Parada’s claim for cancellation of removal, it does not govern his claims currently on appeal, which were filed prior to May 11, 2005. See Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010).
Quiroz Parada appealed the IJ’s decision to the BIA, which dismissed his appeal. In its decision, the BIA affirmed the IJ’s determinations on Quiroz Parada’s asylum, withholding, and CAT claims, including the IJ’s alternative holding that even if Quiroz Parada had established past persecution, the government had rebutted the presumption of a well-founded fear of future persecution. The BIA denied relief to Quiroz Parada, but granted him voluntary departure. Quiroz Parada timely petitioned us for review.
. . . .
As an initial matter, we reject the government’s contention that we lack jurisdiction to consider Quiroz Parada’s CAT claim because he did not raise it before the BIA. Although Quiroz Parada did not specifically appeal his CAT claim to the BIA, the agency addressed the merits of the claim. It is well-established that we may review any issue addressed on the merits by the BIA, regardless of whether the petitioner raised it before the agency. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013), cert. denied, 135 S. Ct. 355 (2014). Accordingly, we have jurisdiction to review the claim.
The agency’s first error was its failure to consider all relevant evidence. CAT’s implementing regulations require the agency to consider “all evidence relevant to the possibility of future torture,” and we have repeatedly reversed where the agency has failed to do so.See, e.g., Cole v. Holder, 659 F.3d 762, 770–72 (9th Cir. 2011) (“[W]here there is any indication that the BIA did not consider all of the evidence before it, a catchall phrase [that the agency has considered all of the evidence] does not suffice, and the decision cannot stand.”); Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“The failure of the IJ and BIA to consider [relevant evidence] constitutes reversible error.”). Relevant evidence includes the petitioner’s testimony and country conditions evidence. See Cole, 659 F.3d at 771–72. Moreover, a petitioner’s credible testimony “may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.16(c)(2).
Here, the relevant evidence included Quiroz Parada’s credible testimony, the 2007 country conditions reports, and exhibits submitted by Quiroz Parada. Yet the IJ summarily dismissed Quiroz Parada’s CAT claim, stating:
Based on the respondent’s testimony and the evidence in the record, the Court finds that the respondent has not shown that he is “more likely than not” to be tortured if he is removed to El Salvador. In addition, to be eligible for CAT relief, the respondent must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity. Matter of S-V-, 22 I&N Dec. 1306, 1311 (BIA 2000), disagreed with on other grounds by Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003). “Article 3 of the Convention Against Torture does not
extend protection to persons fearing entities that a government is unable to control.” Id.at 1312. The respondent has not alleged that he fears torture inflicted by any governmental entities in El Salvador, nor by any other entity with the acquiescence of any government official. Thus, he has not established eligibility for CAT relief.
This conclusion ignored significant evidence in the record demonstrating that 1) Quiroz Parada credibly feared death at the hands of the MS gang, and 2) the country conditions reports and other evidence in the record established not only that the government “acquiescence[d]” in the MS gang’s violence, but also that Salvadoran security forces engaged in torture on a regular basis—as the IJ himself found in a section of his decision summarizing the country conditions evidence:
[P]rotection of human rights was undermined by widespread violent crime, rampant judicial and police corruption, intimidation by the ubiquitous violent street gangs, and violence against witnesses. Criminal gangs are a serious, widespread, and pervasive socio-economic challenge to the security, stability, and welfare of El Salvador. Indeed, gangs are blamed for the bulk of crimes and murders in El Salvador. While the government’s fight against the gangs has met with some success in areas, El Salvador remains an exceptionally violent country because of the pervasive gang violence.
Although arbitrary arrest, prolonged detention, and torture are prohibited in El Salvador, Salvadoran security forces apparently continue to participate in such practices on a regular basis. Conditions in detention are degrading and extremely dangerous. Many officials throughout all levels of government engage in corruption with impunity despite a recent increased emphasis on enforcement.
Thus, while the IJ did “consider” the country conditions reports, the significant and material disconnect between the IJ’s quoted observations and his conclusions regarding Quiroz Parada’s CAT claim indicate that the IJ did not properly consider all of the relevant evidence before him.See Cole, 659 F.3d at 771–72 (explaining that indications of the agency’s failure to properly consider all of the relevant evidence “include misstating the record and failing to mention highly probative or potentially dispositive evidence”).
The agency’s second error was its overly narrow construction of the “acquiescence” standard. In a similar case, we reversed and remanded where the agency “erred by construing ‘government acquiescence’ too narrowly,” noting that “acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice.” Aguilar-Ramos, 594 F.3d at 705–06 (citing Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir. 2003)). In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771.
Because the agency erred by failing to consider all relevant evidence and by improperly construing the government acquiescence standard, we reverse the BIA’s determination that Quiroz Parada is not eligible for CAT relief and remand to the agency for further consideration of his claim.
******************************************
The BIA’s and IJ’s fundamental errors included:
Failing to follow their regulations requiring them to consider all the evidence;
Incorrectly finding no “past persecution;”
Incorrectly applying the regulatory presumption of future persecution;
Incorrectly denying asylum and withholding of removal;
Applying an incorrect standard for CAT protection;
Incorrectly analyzing country conditions for CAT.
Wow, what did the BIA and the IJ get right here other than the name and “A#?”
Contrary to the “Sessions myth” about “dirty attorneys” and respondents “gaming the system,” this case presents the perhaps extreme, but certainly not atypical, example where “the government took thirteen years to process the asylum application and then another five years to hold a hearing before an IJ—during which time the government had every opportunity to submit more up-to-date evidence of changed country conditions, but failed to do so.”
The respondent, “by contrast, submitted his exhibits approximately one week before the November 2012 hearing. In addition to a written statement describing his past persecution and fear of future persecution, Quiroz Parada submitted a number of other exhibits corroborating his claims.”
Moreover, once the hearing finally took place, it was fairly obvious from the IJ’s negative pre-hearing comments that he had already “prejudged’ the case against the respondent.
The court also notes how the phenomenon I call “Aimless Docket Reshuffling” (“ADR”) by the Government, which Sessions has shoved into overdrive, fuels “our previously-expressed concern that ‘constant remands to the BIA to consider the impact of changed country conditions occurring during the period of litigation of an asylum case would create a “Zeno’s Paradox” where final resolution of the case would never be reached.’”Baballah, 367 F.3d at 1078 n.11 (quoting Hoxha v. Ashcroft,319 F.3d 1179, 1185 n.7 (9th Cir. 2003)) (alteration omitted).”
The grossly under-studied phenomenon of “ADR” by the DHS and EOIR/DOJ also requires the respondent and his or her often pro bono attorney to constantly update the record and the evidence to deal with changing conditions, while the DHS often takes the lackadaisical approach they did here, apparently counting on the IJ or the BIA to “fill in the gaps” necessary to “get to a denial of the facially grantable claim.”
Here’s the court’s accurate statement of both the CAT standard for acquiescence and the current conditions in El Salvador:
“In Aguilar-Ramos, we found “evidence in the record that suggests that gangs and death squads operate in El Salvador, and that its government is aware of and willfully blind to their existence.” Id. at 706. So too here.
Moreover, we have held that the acquiescence standard is met where the record demonstrates that public officials at any level—even if not at the federal level—would acquiesce in torture the petitioner is likely to suffer. Madrigal v. Holder, 716 F.3d 499, 509–10 (9th Cir. 2013). Evidence showing widespread corruption of public officials—as the record reveals here—can be highly probative on this point.See id. at 510 (noting that “[v]oluminous evidence in the record explains that corruption of public officials in Mexico remains a problem”). As in Madrigal, the country conditions reports and exhibits submitted by Quiroz Parada indicate the acquiescence of the Salvadoran government (or at least parts of the Salvadoran government) in the “rampant” violence and murder perpetrated by the MS gang—at whose hands Quiroz Parada fears that he will be killed. And as we have previously held, “torture” under CAT includes killings. See Cole, 659 F.3d at 771″
Compare the above with Sessions’s completely disingenuous description of both the standard for “unwilling or unable to protect” — certainly “acquiescence” would meet or exceed “unwilling or unable to protect” — and the beyond deplorable country conditions in El Salvador in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).
This case also illustrates how in the “haste makes waste” world of EOIR, transcripts are often missing or garble testimony critical to the respondent’s case.
Unfortunately, this case is but an example of the deep, ugly hidden truth about our Immigration Courts. Even before Session’s White Nationalist restrictionist moves against asylum seekers, the Immigration Courts were mistreating too many asylum seekers, particularly those from the Northern Triangle fleeing life-threatening violence. Well prepared claims were often shunted to the end of the docket by ADR at both the courts and the DHS Asylum offices. They are often replaced by “prioritized” claims in detention settings or in other unnecessarily rushed situations where individuals have not had adequate time to obtain competent counsel and to prepare the necessary documentation to win a claim.
That’s compounded by the fact that even in the past, statements of politicos within Administrations of both parties and the generally negative tenor of BIA precedents on asylum for the Northern Triangle have encouraged some willing Immigration Judges to either prejudge the cases or give them “short shrift” to discourage such claims in the future and to act as a “deterrent,” as well as to jack up the number of “case completions” by cutting corners. This was happening in some Immigration Courts and on some BIA panels even before Sessions took over.
Certainly, the message from Sessions has been overtly anti-asylum, anti-Hispanic, anti-female, anti-family, anti-Due-Process, anti-scholarship, and anti-deliberation. In essence: “Just rubber stamp ’em, deny ’em, and move ’em out as fast as you can if you want to keep your job. And, don’t forget that your job involves ‘partnership’ with the DHS prosecutors.”
Obviously, our Immigration Court systems had some deep-seated Due Process problems with anti-asylum, anti-Northern Triangle attitudes, as well as fundamentally incorrect views of the asylum law and regulations, by some Immigration Judges and BIA Appellate Immigration judges even prior to Sessions’s advent. That’s one of the key reasons why gross discrepancies in approval-denial rates in similar cases among Immigration Judges and among BIA “panels” (which often can be nothing more than a single Appellate Judge) had no reasonable explanation even during the Obama Administration.
Sessions has made all of this immeasurably worse! Rather than fostering an attitude of judicial independence, courtesy, fairness, respect for both parties, Due Process, and the generous consideration of asylum claims mandated by the Supremes in Cardoza-Fonseca and at least mouthed by the BIA in Matter of Mogharrabi, Sessions has come up with ways of forcing the already broken Immigration Court system to take on even more cases, cut even more corners, and spew forth even more incorrect and unfair decisions, particularly in the area of asylum.
He has shown a simply horrible, outright hostility to working cooperatively with the individual Immigration Judges, the NAIJ, the private bar, the pro bono community, the NGO’s, and the academic community, along with the DHS, to develop methods of improving Due Process, fairness, and timeliness in the asylum adjudication system. Perhaps even worse, by reducing the status of judges to “denial officers,” and upping the stress levels to incredible heights, he’s also made the U.S. Immigration Judge and the BIA Appellate Immigration Judge jobs far less appealing to well-qualified individuals who would fairly, efficiently, correctly, and professionally adjudicate asylum claims. Such individuals also likely would have some of the “creative, yet practical” “think outside the box” approaches necessary to deal with the backlog in a timely manner without compromising Due Process. It’s painfully obvious that the Sessions and the other politicos now futilely trying to micromanage the Immigration Court system are devoid of any such insights.
Frankly, this is the type of case that probably could have been granted back in 1994 when it was first filed. Even by the time it finally got to Immigration Court, it appears to be the type of well-documented, clearly grantable case that could have been set for a “short block hearing” with the understanding that if certain aspects of the respondent’s background and experiences were verified under oath, the DHS would not oppose a grant of asylum.
Instead, this case has been “hanging around” the system for more than 24 years, and still hasn’t been finally resolved! More seriously, after taking five years on the docket to get to the merits hearing, both the IJ and the BIA clearly got it wrong!
The mess that currently exists in the Immigration Court and asylum systems is primarily the product of years of such abuse and mismanagement by a politically-driven adjudication system, aided and abetted by Congressional inaction and failure to provide adequate funding. Cutting more corners, pushing overwhelmed judges to turn out more cases in less time, and punishing asylum applicants by taking away their children, detaining them in substandard conditions, denying them reasonable access to counsel, denying them fairness, Due Process, and the life-saving protection to which many of them are entitled clearly isn’t the answer.
We need regime change (along with an attitude and culture change among some Immigration Judges and among some BIA panels)!
“A federal appeals court Monday partially revived President Trump’s travel ban on six Muslim-majority countries, allowing it to go into effect against people without a “bona fide” connection in the U.S., such as close family members.
The decision by the U.S. 9th Circuit Court of Appeals means that the federal government can start blocking travel into the U.S. by most nationals of Syria, Libya, Iran, Yemen, Somalia and Chad who lack family in the country.
The order partially reversed one from Honolulu-based federal judge Derrick K. Watson, who blocked nearly the entire ban on the grounds that it “plainly discriminates based on nationality.” Watson ruled on a lawsuit brought by the state of Hawaii.
The 9th Circuit decision is a temporary measure before judges hear arguments Dec. 6 over the government’s appeal of Watson’s ruling. A panel of three judges — Michael Daly Hawkins, Ronald M. Gould and Richard A. Paez — is considering the appeal. All were appointed by President Bill Clinton.
Trump signed his newest travel ban on Sept. 24 to indefinitely halt travel from most citizens of the six countries, but Hawaii- and Maryland-based federal judges issued orders stopping it just as it was about to go into effect in October.
Trump’s travel order also applied to North Koreans and certain Venezuelan government officials and their families, but judges allowed bans on those nationals to continue.
The 9th Circuit decision is a win for the Trump administration, which has struggled since January in three attempts to push similar travel bans that immigration advocates and federal judges have largely described as illegal.”
************************
Read the full article at the link.
Some good news for the Administration. But, less than a complete victory. And, the merits of the appeal remain to be decided. Stay tuned!
PANEL: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
OPINION: Per Curiam
KEY QUOTE:
“We are asked to review the district court’s modified preliminary injunction,
which enjoins the Government from enforcing Executive Order 13780 against (1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.
For the reasons that follow, we conclude that in modifying the preliminary injunction to preserve the status quo, the district court carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court in Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017), and did not abuse its discretion. We affirm.
. . . .
The Government also raises concerns that because about 24,000 refugees have been assured, the district court’s ruling causes the Supreme Court’s stay order to “cover[] virtually no refugee” and renders the order inoperative. The Supreme Court’s stay considered the concrete hardship of U.S.-based persons and entities. See Trump, 137 S. Ct. at 2088–89. The Court’s equitable decision did not express concern about the number of refugees that would fall within the scope of the injunction; rather, the Court’s order clarifies that the Government is still enjoined from enforcing the 50,000-person cap of § 6(b) to exclude refugees who have a bona fide relationship with a U.S. person or entity and are otherwise eligible to enter the United States. Id. at 2089.
Furthermore, the Government’s assertion that the modified injunction renders the Court’s stay order inoperative is false. More than 175,000 refugees currently lack formal assurances. Without another bona fide relationship with a person or entity in the United States, the Executive Order suspends those refugees’ applications. See U.S. Dep’t of Homeland Security, Frequently Asked Questions on Protecting the Nation from Foreign Terrorist Entry into the United States at Q.27, https://www.dhs.gov/news/2017/06/29/frequently-asked-questions- protecting-nation-foreign-terrorist-entry-united-states (last visited Aug. 30, 2017)
33
(“USCIS officers have been instructed that they should not approve a refugee application unless the officer is satisfied that the applicant’s relationship complies with the requirement to have a credible claim of a bona fide relationship with a person or entity in the United States and was not formed for the purpose of evading the Executive Order.”).
Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted. In the same way that the Court considered the harms of the U.S. citizen who wants to be reunited with his mother-in-law and the permanent resident who wants to be reunited with his wife, the employer that hired an employee, the university that admitted a student, and the American audience that invited a lecturer, the district court correctly considered the resettlement agency that has given a formal assurance for specific refugees. The district court did not abuse its discretion with regard to this portion of the modified preliminary injunction.
IV
Our decision affirming the district court’s modified preliminary injunction will not take effect until the mandate issues, which would not ordinarily occur until at least 52 days after this opinion is filed. See Fed. R. App. P. 41; Fed. R. App. P. 40(a)(1).
34
Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re- initiated. Even short delays may prolong a refugee’s admittance.
Because this case is governed by equitable principles, and because many refugees without the benefit of the injunction are gravely imperiled, we shorten the time for the mandate to issue. See Fed. R. App. P. 41(b). The mandate shall issue five days after the filing of this opinion.
V
We affirm the district court’s order modifying the preliminary injunction. The mandate shall issue five days after the filing of this opinion.”
************************************************
This is how the Trump-Sessions DOJ squanders taxpayer money and wastes U.S Courts’ time. Advancing positions unsupported by law or facts is also what “Gonzo Apocalypto” means when he disingenuously refers to “restoring the rule of law.” Meanwhile, Sessions ignores the real threats to America’s security posed by his buddy Bannon, his flunky Miller, and their White Supremacist allies.
I have predicted that the career DOJ Attorneys in the Solicitor General’s Office, the Office of Immigration Litigation, and elsewhere who are charged with defending Session’s gonzo and often disingenuous political agenda will have “zero credibility” by the time his reign at Justice is over. Problem is that our justice system and particularly our Immigration Courts will be in shambles by the time Sessions is done.
PANEL: Harry Pregerson, Richard A. Paez, and Morgan B. Christen, Circuit Judges.
Opinion by Judge Pregerson; Concurrence by Judge Pregerson; Concurrence by Judge Christen
Here’s the Court Staff’s summary of the opinions. It’s NOT part of the Court’s opinion, but nevertheless quite informative.
“The panel granted, reversed, and remanded Luis Enrique Sanchez’s petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s decision denying Sanchez’s motion to suppress evidence of his alienage and ordering his removal.
The panel held that Coast Guard officers who detained Sanchez committed an egregious Fourth Amendment violation because they seized Sanchez based on his Latino ethnicity alone. Accordingly, the panel held that the immigration judge erred in failing to suppress the Form I- 213 (Record of Deportable/Inadmissible Alien), which was prepared after his immigration arrest and which the Government introduced to establish Sanchez’s alienage and entry without inspection.
The panel also concluded that Sanchez was not seized at the United States border, where Fourth Amendment protections are lower. The panel further held that, because Coast Guard officers detained Sanchez solely on the basis of his Latino ethnicity, the officers violated an immigration regulation, 8 C.F.R. § 287.8(b(2), which provides that an immigration officer may briefly detain an individual only if the officer has “reasonable suspicion, based on specific articulable facts” that the person is engaged in an offense or is an alien illegally in the United States. Accordingly, the panel held that Sanchez’s removal proceedings must be terminated based on the regulatory violation because the regulation is designed to benefit Sanchez, and Sanchez was prejudiced by the violation.
Because the panel concluded Sanchez’s proceedings should have been terminated based on the regulatory violation, the panel did not reach the question whether Sanchez’s previously-submitted Family Unity Benefits and Employment applications, which the Government also introduced to establish alienage, are indirect fruits of the poisonous tree. The panel granted Sanchez’s petition for review and remanded to the Board with instructions to terminate Sanchez’s removal proceedings.
Concurring, Judge Pregerson wrote separately to explain why it is unfair for the Government to encourage noncitizens to apply for immigration relief, and later use statements in those relief applications against them in removal proceedings. Judge Pregerson expressed concern about the Government’s argument that the exclusionary rule does not apply to Sanchez’s Family Unity Benefits and Employment Authorization applications because they predated the egregious constitutional violation. He wrote that categorically exempting pre-existing applications from the exclusionary rule in this way allows law enforcement to unconstitutionally round up migrant-looking individuals, elicit their names, and then search through Government databases to discover incriminating information in pre- existing immigration records.
Concurring, Judge Christen agreed that the case did not concern a border stop, noting that the Coast Guard did not seize Sanchez at a port of entry and that the evidence did not show that Sanchez’s boat had sailed from international waters. Judge Christen also agreed that Sanchez’s removal proceedings must be terminated based on the regulatory violation.”
***********************************
This egregious Fourth Amendment violation generated three thoughtful opinions from U.S. Circuit Court of Appeals Judges. Yet, it got a “free pass” from the BIA. Just another ho-hum day at the office. But, what about the BIA’s responsibility to “guarantee fairness and due process for all?” Doesn’t it extend to constitutional rights?
Judge Pregerson’s concurring opinion also suggests a line of legal attack for “Dreamers” if legislative protections are not enacted and they are thrown into removal proceedings. In most cases, the Dreamers came forward voluntarily, in fact were encouraged to do so by the USG, and applied to the USCIS for DACA and work authorization. In the process they furnished information about their lack of legal status in the U.S.
In many cases, that will be the sole evidence supporting a charge of removability. Dreamers’ counsel can argue, and some Federal Courts are likely to agree, that the use of that information to establish removability is “fundamentally unfair” and therefore a violation of constitutional due process.
