"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.
The aim of President Donald Trump’s new policy of splitting kids from their mothers at the border is, in a word, deterrence: The White House wants to discourage more immigrants from trying to enter the United States.
Kirstjen Nielsen, Trump’s secretary of homeland security, is careful not to say this outright — she dodged a direct question on the subject from Sen. Kamala Harris (D-Calif.) at a hearing last month.
JOHN MOORE VIA GETTY IMAGES
Central American immigrants walk after crossing the U.S.-Mexico border to turn themselves in to Border Patrol agents in February near McAllen, Texas. The Trump administration adopted a policy in May of intentionally separating mothers from their children at the border in order to deter migrants from crossing illegally into the U.S.
There’s a reason Nielsen and other administration officials shy away from attaching the word “deterrence” to the new policy: Changing immigrant detention policy as a way to deter undocumented people from coming to the U.S. is illegal, federal courts have repeatedly ruled. So now she and other Trump administration officials find themselves struggling to defend a family separation policy whose clear ambition is deterrence.
A growing number of mothers have crossed into the United States since 2014, often from Central America and often requesting asylum. Other administration officials were blunter in the past when discussing a policy that would split the families up to scare them away from coming.
The Department of Homeland Security was considering separating children from their parents “in order to deter” undocumented immigration, White House chief of staff John Kelly told CNN while serving as Nielsen’s predecessor last year. And Gene Hamilton, a former aide to Attorney General Jeff Sessions, asked participants at a meeting last August on the policy to “generate paperwork laying out everything we could do to deter immigrants from coming to the U.S. illegally,” according to The New Yorker.
Whether or not the deterrence goal is spelled out, the strategy is likely to backfire. Former President Barack Obama learned that lesson in 2015, when a federal judge in Washington blocked his plans to lock up Central American immigrant mothers and their kids without bond to deter others from trying to cross the border.
U.S. District Judge James Boasberg ruled that the federal government can’t detain immigrants indefinitely for the sake of deterrence alone. Instead, the decision to detain needed to be based on whether the immigrant posed a threat to the community or a flight risk.
The Obama administration was forced to provide bond hearings to the migrants in family detention. A separate ruling that year ordered the Obama administration to start releasing people from family detention after three weeks in order to comply with the Flores settlement, a 1997 deal that bars the government from locking up children in detention centers.
The Trump administration hopes to skirt the rulings that got Obama officials into trouble by prosecuting immigrant parents at the border. The federal government can’t jail children while their mothers await trial, so immigration authorities transfer them to the Office of Refugee Resettlement to find a sponsor or to non-secured facility to hold them, as if they arrived by themselves.
But this legal maneuver stands on the same shaky ground.
“Whether the deterrence to seeking protection is being done by detaining families or separating families doesn’t make a whole lot of difference,” said Michelle Brané, the director of the Migrant Rights and Justice Program at the Women’s Refugee Commission. “They’re both punishing families for seeking protection, and protection to which they have the right under U.S. law.”
The Trump administration is already running into legal trouble over its policy. The American Civil Liberties Union filed a lawsuit in federal court in Southern California to overturn Trump’s family separation policy, asking U.S. District Judge Dana Sabraw for a nationwide injunction to halt the practice. At a hearing on May 4, Sabraw repeatedly asked whether the Trump administration had adopted the family separation policy to deter others.
“If there were a blanket policy to separate for deterrence value, would that be legal?” Sabraw asked, according to a transcript of the hearing. “Would that pass muster under the Fifth Amendment?”
The judge did not receive a straight answer. The government’s lawyer, Sarah Fabian, instead argued that the government wasn’t separating mothers from their kids systematically, and only following existing immigration law to do so.
Attorney General Jeff Sessions undermined her argument three days later, when he announced that the Justice Department’s “zero tolerance” policy for prosecuting border-crossers included mothers who cross with their children.
Lee Gelernt, the lawyer leading the ACLU lawsuit, called the government lawyer’s unwillingness or inability to defend family separation on the merits without resorting to the legally fraught term “deterrence” significant.
“The government still needs a persuasive justification for separating children,” Gelernt wrote in an email. “And the government has not provided one.”
On Wednesday, Sabraw ordered that the case against family separation can move forward, over the Trump administration’s objections. Although he has yet to rule on the case’s merits, his order did not augur well for the federal government.
Implementing a family separation policy to deter other migrants “arbitrarily tears at the sacred bond between parent and child,” Sabraw wrote. “Such conduct, if true, as it is assumed to be on the present motion, is brutal, offensive, and fails to comport with traditional notions of fair play and decency.”
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Ah, the never-ending legal, moral, and intellectual corruption and dishonesty of the Trumpsters!
Take depositions — force them to lie under oath or admit they have been lying publicly. And, as I recently pointed out, most Article III Federal Judges, who actually have contempt of court authority, take a dim view of perjury by Cabinet Officers in their court proceedings.
I also think that even under the Supreme’s restrictive standards, there is an ever increasing possibility of actually imposing monetary damages on Nielsen, Sessions, and others for their intentional denial of Constitutional rights and their dishonest schemes to conceal their true intent. I actually think that when the full truth some day comes out, we will find not only illegal deterrence, but rather clear evidence of racial animus underlying Sessions’s policies. To be honest, Sessions has turned the entire U.S. Immigration Court system into a tool for enforcement deterrence — a huge violation of Due Process, as well as an astounding conflict of interest and violation of ethics.
Also, not surprisingly, the name of Sessions’s restrictionist crony Gene Hamilton has surfaced in connection with this scheme.
On June 6, the BIA published its precedent decision in Matter of A-C-M-. As the Board seems to no longer issue precedent decisions en banc, the decision is that of a divided three-judge panel. The two-judge majority found the respondent to be barred from asylum eligibility because in 1990, she had been kidnaped by guerrillas in her native El Salvador, who after forcing her to undergo weapons training, made her do the group’s cooking, cleaning, and laundry while remaining its captive.
In 2011, an immigration judge granted the respondent’s application for cancellation of removal. The DHS appealed the decision to the BIA, which reversed the IJ’s grant, finding that the respondent was ineligible for cancellation under section 212(a)(3)(B)(i)(VIII), which makes inadmissible to the U.S. anyone who has received military-type training from a terrorist organization. The BIA stated in its 2014 decision that it found the guerrillas to be a terrorist organization at the time of the respondent’s abduction in 1990.
The case was remanded back to the immigration judge, where the respondent then applied for asylum, a relief from which she was not barred by the military training. However, the IJ ruled that she was ineligible for asylum under another subsection of the law, which bars anyone who commits “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” for either the commission of a terrorist activity, someone who has committed or is planning to commit a terrorist act, or to a terrorist organization or member of such organization.
The respondent in A-C-M- clearly wasn’t providing her labor by choice; she was forcibly abducted by the guerrillas and was then held against her will. However, the BIA decided in a 2016 decision, Matter of M-H-Z-, that there is no duress exception to the material support bar. Therefore, in the Board’s view, the involuntary nature of the labor was irrelevant.
In her well-reasoned dissent, Board Member Linda Wendtland acknowledged a critical question: “whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.” Note that the statutory language quoted above requires that the actor “knows or reasonably should know” that the support will aid a terrorist activity or organization.
The decision doesn’t name the guerrilla organization (presumably the FMLN). It also fails to mention when the Board itself concluded that the group had been a terrorist organization in 1990. The Board’s view of the guerrillas was not always so, as witnessed in its 1988 precedent decision in Matter of Maldonado-Cruz. The case involved an asylum-seeker from El Salvador who had been kidnaped by guerrillas in that country, given brief military training, and then forced to serve in the group’s military operations. He managed to escape, and legitimately feared that if returned to El Salvador, he would be killed by death squads the guerrillas dispatch to punish deserters.
The BIA denied asylum. In doing so, it expressed the following rationale: “It is entirely proper to apply a presumption that a guerrilla organization, as a military or para-military organization, has the need to control its members, to exercise discipline.” The Board noted that the guerrillas needed non-volunteer troops to fill out the military units required to fight against the government. It continued: “To keep them as cohesive fighting units they must impose discipline; and an important form of discipline…is the punishment of deserters.”
The Board’s language in Maldonado-Cruz really does not sound as if it is describing a terrorist organization. Frankly, it’s tone wouldn’t sound out of place in describing the penalties imposed by the Park Slope Food Coop towards members who miss their shifts. If the Board didn’t contemporaneously view the guerrillas as terrorists, why would they expect the respondent to have done so?
Judge Wendtland did not need to answer that question, because she convincingly argued that the respondent’s cooking and cleaning did not constitute “material support” under the statute. She is correct. Notice the examples of support contained in the statutory language: safe houses, funds, transportation, weapons, explosives, and training. All of these are of a quite different nature from cooking, cleaning, and doing laundry.
The respondent in A-C-M- was not someone whom Congress intended to exclude under the anti-terrorism provisions. She did not provide money or weapons to ISIS to carry out terrorist acts. To the contrary, she performed labor completely unrelated to any violent objective. She was forced to perform such labor – in the words of Judge Wendtland, “as a slave” – for a group whose terrorist nature was far from clear.
In adopting the two-member majority’s view, the Board has chosen an interpretation of the statute that turns Congressional intent on its head by punishing the victims of terrorism, and adds insult to injury by labeling these victims as terrorists themselves. Hopefully, the lone dissenting opinion will prevail on appeal.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
3rd-Generation Gangs and Political Opinion
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The BIA has a long-standing history of finding ways to construe the law and facts to deny protection to refugees from Central America, one of the most violent areas in the world for decades.
Judge Linda Wendtland is one of the few BIA jurists since the 2003 “Ashcroft Purge” to stand up to her colleagues and the Attorney General for the rights of Central American asylum seekers to fair treatment under the asylum laws.
As most of us familiar with Immigration Court and immigration enforcement know, the “material support” bar is very seldom used against real terrorists and security threats. Most caught up in its absurdly overbroad web are minor players — victims of persecution themselves or “freedom fighters” many of whom actually supported forces allied with or assisting the US Government.
Probably one of the biggest and most grotesque examples of “legislative overkill” in recent history. And, the BIA has made the situation much worse by construing the bar in the broadest, most draconian, and least reasonable way possible.
Moreover, the DHS waiver process is totally opaque compared with the Immigration Court process, thereby encouraging arbitrary and capricious decision-making that escapes any type of judicial review.
MCALLEN, Texas — The words “all rise” were still ringing in the brightly lit South Texas courtroom last week when Peter E. Ormsby slipped unceremoniously into his seat.
“Good morning,” the 62-year-old federal magistrate said as the courtroom filled with the clanking of shackled defendants returning to their wooden benches. “We’re here to take up a number of criminal cases that allege that the defendants violated the immigration laws of the United States.”
Seated in front of Ormsby were 71 disheveled immigrants caught illegally crossing the Rio Grande. The number of defendants has soared amid President Trump’s crackdown on a new surge of border crossers. But the mass hearing was remarkable less for its size than for who it included: parents.
For the first time, federal courtrooms here and across the Southwest are being flooded with distraught mothers and fathers who have been charged with misdemeanor illegal entry and separated from their children — a shift in policy touted by the administration as a way to stop families from trying to reach the United States but decried by critics as traumatizing and inhumane. Last month a Honduran father separated from his wife and 3-year-old son killed himself in a Texas jail cell, The Washington Post reported Saturday.
In McAllen alone, 415 children had been stripped from their parents between May 21 and June 5, according to federal public defenders.
Now, on the morning of June 6, 14 more parents from Central America were facing an agonizing choice with uncertain consequences. They could plead guilty in the hope of speeding up their reunification with their children, but risk damaging their chances of receiving asylum in the United States. Or they could plead innocent and head to trial, a process that could take days or weeks and prolong their separation from their kids.
Seven miles from Mexico and surrounded by brushlands that are home to the border’s busiest smuggling routes, the Bentsen Tower federal courthouse has become one of the anguished epicenters of family separation.
On Wednesday morning, the evidence of that was the tears on the parents’ faces. Many clutched fliers with a phone number they could call to try to get their kids back from the increasingly crowded federal shelters where they are being housed.
. . . .
By day’s end, he would sentence more than 100 people, including 28 parents. Most would receive the lightest punishment possible — time served — before they were handed over to Immigration and Customs Enforcement.
The frenzied pace of the proceedings was no accident. As Moody emerged from court in the afternoon, she and a colleague exchanged a high-five.
“I said I’d get done by 3:20,” the prosecutor said, checking the time to see she was only nine minutes behind schedule.
‘Prosecuting everybody’
Aleman-Bendiks had arrived at the tall, dark glass courthouse shortly after dawn that morning. After preparing for an hour in an office decorated with her diplomas from Rice University and Harvard Law, the 52-year-old federal public defender headed upstairs to the courtroom, where the air smelled like sweat and the 71 immigrants were already seated. She was representing all of them.
“How many of you were traveling with children?” she asked in Spanish. More than a dozen hands shot up.
“How did they separate you?” she said to a Guatemalan woman whose 8-year-old daughter was taken away.
“How long since you saw her?” she asked a Honduran separated from her 6-year-old girl.
“They just took them?” she said to a Salvadoran whose two daughters were gone.
This is what Trump’s zero-tolerance policy looked like to Aleman-Bendiks and scores of other federal public defenders along the border.
. . . .
For Meyers, the challenge is not only logistics but the wrenching stories of families being torn apart. In a conference call with her assistant federal public defenders last month, she said she told them to force judges to confront the issue.
“We think it’s important for the court and everybody to hear what’s happening,” she said.
On May 22, Aleman-Bendiks asked Ormsby in court to pressure the government to provide more information about the fate of families being separated. On May 31, she and her boss, Kyle B. Welch, met with ten officials from ICE, Border Patrol, the Justice Department and the Office of Refugee Resettlement, which cares for the children separated from their parents as well as “unaccompanied minors”who arrived in the United States on their own.
“The idea was to try and give us a sense of what’s happening here,” Aleman-Bendiks said, but the meeting delivered little clear information.
One Border Patrol official did say agents in and around McAllen had a policy of not separating children under 5 from their parents — although that policy does not appear to be in place elsewhere along the border. Children as young as 18 months have been taken from their parents.
On Wednesday, Aleman-Bendiks asked Ormsby to order the government to hand over lists of children separated from their parents so that immigration attorneys could ensure they were reunited.
“My concern is that there are lost children here in the system,” she said. “We are hearing it every day, your honor, and it’s not right.”
Ormsby noted that “children are not within the jurisdiction of this court. These people are here because they have a criminal case here.”
He invited her to prepare a brief on how he could order the government to provide lists. “But on its face,” he added, “it seems questionable to me that the court would have the authority to do that.”
. . . .
But immigration advocates aren’t so sure. “They are now convicted of a crime,” said Leah Chavla of the Women’s Refugee Commission. “Under U.S. law, that could be a bar to them receiving asylum, so they’d have to get a waiver.”
In the end, those complications mattered less to the parents in Ormsby’s courtroom than seeing their kids again. All of them pleaded guilty to illegally crossing the border and were sentenced to time served.
“Obviously, in each of your situations, you committed a crime and so the government was within their rights to pursue that,” the magistrate said. “Whether or not they should exercise their discretion that way is something that is obviously being debated.”
“As someone who has children myself,” he added, “it would be a terrible situation to be separated under those conditions.”
Then the guards put handcuffs back on the parents and led them out of the courtroom, where their future remained as unclear as the location of their children.
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Read Mike’s complete report at the above link.
As described in Mike Miller’s article, U.S. Magistrate Judge Peter Ormsby appears to preside over a “court” where “justice” for traumatized, obviously bewildered, and coerced migrants is a cross between a sporting event and a bad joke.
The U.S. Supreme Court held that understanding the immigration consequences of a conviction is a critical element in a migrant’s voluntary decision to plead guilty. Many of these migrant defendants obviously wanted to know whether a guilty plea would 1) free them from detention, 2) reunite them with their children, and 3) adversely affect their asylum cases. Neither Judge Ormsby nor anyone else in his courtroom was able to answer accurately. Judge Ormsby had the authority to defer accepting the pleas until the Assistant U.S. Attorney provided the answers. Yet, he did not do so. These guilty pleas appeared to be neither informed nor voluntary. A federal judge therefore should not have accepted them.
No wonder the prosecuting Assistant U.S Attorney “high fived” at the end of this farce. Likewise, the Public Defender’s claim to simultaneously represent 71 non-English-speaking defendants was a remarkable twist on the canons of ethics and professional responsibility.
Would a group of white, middle class, mostly first-time misdemeanor defendants have been treated this way in federal court? I doubt it. Yet, due process applies equally to everyone in the U.S. regardless of status.
Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules
By Tal Kopan, CNN
She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.
The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.
According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”
Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.
But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.
Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.
“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.
Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”
Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.
“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”
For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.
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Judge slaps Sessions, feds over ‘sanctuary cities’
By: Tal Kopan, CNN
A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.
The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.
The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.
Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.
House GOP immigration negotiations continue ahead of key Thursday meeting
By: Tal Kopan and Lauren Fox, CNN
House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.
“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.
Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.
On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.
Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!
Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”
(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.
(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.
CONCURRING & DISSENTING OPINION: JUDGE LINDA WENDTLAND
KEY QUOTES FROM MAJORITY:
The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.
KEY QUOTE FROM CONCURRING & DISSENTING OPINION:
In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.
Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.
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Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?
The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”
Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant? Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result? And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.
This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?
We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.
Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!
Sessions, Justice Department take lead as public face of Trump’s immigration policy
By: Tal Kopan, CNN
If there’s one person besides President Donald Trump who’s associated with his immigration policies, it’s Attorney General Jeff Sessions.
Regardless of whether it’s his agency’s core jurisdiction.
Sessions and the Justice Department have taken a lead role in announcing and defending the administration’s immigration efforts on a number of fronts — including some that only tangentially involve the department.
It was the Justice Department press office that put out a “fact check” statement Tuesday responding to Oregon Democratic Sen. Jeff Merkley’s publicized border trip to visit detention facilities run by components of the Departments of Homeland Security and of Health and Human Services, and it was Sessions who went in front of cameras the day the DHS announced the policy that would result in more families separated at the border.
Even going back to September, it was Sessions who announced on camera the end of the Deferred Action for Childhood Arrivals policy, which was rescinded by the DHS citing legal guidance from the Justice Department. Sessions has made immigration and border security at least a passing reference in most speeches he’s given and has made multiple trips to the border to highlight the issue.
His investment in the issue doesn’t mean other agencies aren’t involved, nor that his shouldn’t be. Homeland Security Secretary Kirstjen Nielsen has vocally defended the policies in front of Congress and in public appearances. At the time of the DACA decision, the DHS was led by an acting secretary, Elaine Duke, who was not a mouthpiece for the administration’s immigration policies. And Sessions has certainly explored every way his agency could be a player in immigration policy.
But in numerous instances, Sessions has been associated with policies his department would otherwise not have a large role in — and the Justice Department seems to relish taking it on.
Asked for comment, a Justice Department spokesman said Sessions is “proud” to execute the administration’s agenda “in lockstep” with Nielsen. The DHS declined to comment.
A former Obama administration Justice Department immigration official, however, said the department’s hand in making policy is counter to what has traditionally been its role — serving as the government’s lawyer to defend policies.
“It’s unclear what the purpose is of talking about Sen. Merkley at all at the Justice Department,” said Leon Fresco, who served in the Obama administration and is now in private practice. “I think in many cases that agencies are best served by the Department of Justice being perceived as a neutral arbiter on all policies and the agencies being the ones who drive the policy-making agenda. When those roles are blurred, it becomes much harder for the lawyers who have to go to court to have to argue that they don’t have a vested interest in the policies that are being advocated.”
It’s no surprise to those who have followed Sessions’ career. Even in the Senate, he was an outspoken voice in the immigration debate, largely to the right of most of his Republican colleagues.
“While Jeff Sessions may have wanted to be attorney general, the area and issue he cared about the most was immigration,” said Peter Boogaard, a former Obama administration spokesman for the White House and DHS who is now with the pro-immigration group FWD.us.
“It’s not something when I worked in the Department of Homeland Security that Justice was trying to do. They were focused on big, large-scale counterterrorism efforts, and big large-scale efforts on public safety and national security,” Boogaard continued. “The Department of Justice did not engage in immigration issues in this capacity and it is surprising that DHS has ceded that ground of authority. But this is not a new trend; this is something that has been the case since the beginning of this administration.”
Pretty much says it all. Sessions “hanging tough” following Trump’s criticism on the Mueller investigation has nothing to do with integrity (gimmie a break — he’d be violating clear ethics and, perhaps, criminal rules if he “un-recused” himself — he’d certainly lose his law license) or protecting the (largely fictional) “independence” of the Justice Department. It has everything to do with a mean and nasty guy with a White Nationalist Agenda wanting to take full advantage of the “chance of a lifetime” to inflict maximum, and perhaps lasting, unnecessary pain and suffering on migrants, women, children and other vulnerable individuals who don’t fit within his “White Nationalist universe.”
Sessions’s tenure “proves beyond a reasonable doubt” that the current Immigration Court system is neither fundamentally fair nor independent and it is incapable, in its current form, of delivering and guaranteeing Due Process for migrants. If and when Congress and/or the Article IIIs are going to recognize the obvious and “do the right thing” is a different question — — one where “the jury is still out.”
As the use of immigration detention continues to increase, it is more important than ever that representatives understand the legal framework governing bond proceedings in order to harness that knowledge toward zealous and well-prepared advocacy on behalf of detained respondents. Successful bond representation can make all the difference in whether a respondent is able to secure release and ultimately prevail on the merits of his or her case. Effective representation in bond proceedings also helps to safeguard the due process rights of detained respondents. The authors encourage practitioners to consider pro bono opportunities available in their jurisdiction or remotely, such as through the Immigrant Justice Campaign, which not only help meet a compelling need but can also provide practitioners with experience and mentoring. Given the ever-changing landscape of immigration detention, practitioners are encouraged to remain connected to others doing bond work in order to share information about the latest trends, successful strategies, and best practices. Finally, the authors wish to remind readers that this guide is intended for general educational use only and that practitioners should independently research the law governing their jurisdiction, as this area of law (like many in the immigration field) is complex and frequently changing.
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Join the New Due Process Army. Fight for the Due Process rights of everyone in America. Allow yourself to be inspired by and learn from the scholarship, dedication, character, and commitment of amazing attorneys, leaders, and role models like Michelle & Rebecca!
Harm to the most vulnerable among us is harm to all! Due Process forever!
When Attorney General Jeff Sessions issues his decision in Matter of A-B- (the case he certified to himself to decide whether “being a victim of private criminal activity” can constitute a particular social group for asylum purposes), it may negatively impact those asylum applicants who fear gang violence on account of their membership in a particular social group. Attorneys representing such claimants should consider whether their clients may alternatively claim a well-founded fear of persecution based on their political opinion under a “third-generation gang” theory, supported by country condition evidence.
In their article ‘Third Generation’ Gangs, Warfare in Central America, and Refugee Law’s Political Opinion Ground,1 Deborah Anker and Palmer Lawrence make a very important point: that “the Refugee Convention’s concept of political opinion incorporates ‘any opinion on any matter in which the machinery of the State, government, and policy may be engaged,’ or that of other persecutory agents where the state is unwilling or unable to provide protection” (citing Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 746 (Can.)).
Relying on this broad interpretation of political opinion, Anker and Lawrence next note that some military and law enforcement experts have concluded that the larger Central American gangs (including MS-13 and Mara 18) “have developed a degree of politicization, sophistication, and international reach to qualify them as ‘third generation gangs,’” which “function as de facto governments, controlling significant territory (competing with the state for power).” Anker and Lawrence cite Lieutenant Colonel Howard L. Gray, Gangs and Transnational Criminals Threaten Central American Stability, 7 U.S. Army War College, Strategy Research Project (2009)); in documenting such claims, practitioners should also reference John P. Sullivan and Robert J. Bunker, “Third Generation Gang Studies: An Introduction,” 14-4 Journal of Gang Research 1 (Summer 2007), and “Third General Gangs Strategic Note No. 1: Mara Salvatrucha (MS-13) 500 Man Commando Unit Planned for El Salvador,” Small Wars Journal, Sept. 10, 2016. The last article quotes Douglas Farah, Visiting Senior Fellow, National Defense University Center for Complex Operations as stating that “The MS has strong political and military ambitions and now views itself as political/military rather than a gang…MS 13 now has troops, weapons, and a cause…efforts to form a joint force with the 18 is less likely but both sides are in discussion to at least have lines of communication open.”2
Under the definition of political opinion cited above, gangs such as MS-13 and Mara 18 are at least other persecutory agents from which the state is unable or unwilling to provide protection. Such gangs might also be the de facto “state” itself in areas they control. The idea that opinions or matters that engage such gangs might constitute political opinion finds support from the Office of the United Nations High Commissioner for Refugees (UNHCR), which has recently published Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Guatemala (January 2018), El Salvador (March 2016), and Honduras (July 2016). These can be found on the website Refworld.org. UNHCR has been described as “the entity that most resembles a supervisory body of the [1951] Convention.”3 Although U.S. courts and the BIA have been inconsistent in the deference accorded to its opinions, given the clearly stated intent of Congress in passing the Refugee Act of 1980 to conform U.S. asylum law to the language of the 1951 Convention (which was binding on the U.S. based on its ratification of the 1967 Protocol Relating to the Status of Refugees), it has been argued that courts should defer more consistently to UNHCR’s interpretations of the Convention’s provisions.4
UNHCR’s 2016 Eligibility Guidelines for El Salvador includes an “Assessment of International Protection Needs of Asylum-seekers from El Salvador.” The agency concludes that “depending on the particular circumstances of the case, UNHCR considers that persons perceived by a gang as contravening its rules or resisting its authority may be in need of international protection on the grounds of their (imputed) political opinion…”5 The UNHCR Guidelines report at p. 12 that “gangs are reported to exercise extraordinary levels of social control over the population of their territories.” According to UNHCR, residents in such gang-controlled zones “are reportedly required to ‘look, listen and keep quiet’ (‘mirar, oir, callar’), and often face a plethora of gang-imposed restrictions on who they can talk with and what about, what time they must be inside their homes, where they can walk or go to school, who they can visit and who can visit them, what they can wear, and even, reportedly, the color of their hair.”
At p. 28 of its Guidelines, UNHCR states:
The ground of political opinion needs to reflect the reality of the specific geographical, historical, political, legal, judicial, and sociocultural context of the country of origin. In contexts such as that in El Salvador, expressing objections to the activities of gangs may be considered as amounting to an opinion that is critical of the methods and policies of those in control and, thus, constitute a “political opinion” within the meaning of the refugee definition. For example, individuals who resist being recruited by a gang, or who refuse to comply with demands made by the gangs, such as demands to pay extortion money, may be perceived to hold a political opinion.
Anker and Lawrence note in their conclusion that many denials of such claims “reflect adjudicators’ and courts’ lack of knowledge (often because they are not presented with evidence) of regarding the political nature and context of the present conflict in that region.” This is an extremely important point. The U.S. Court of Appeals for the Second Circuit stated in Castro v. Holder6 that “a claim of political persecution cannot be evaluated in a vacuum….” The court noted that it has “remanded cases in which the agency denied an application for asylum based on its failure to properly engage in the “complex and contextual factual inquiry” that such claims often require…Nevertheless, in this case, the agency has once again embraced an ‘impoverished view of what political opinions are, especially in a country where certain democratic rights have only a tenuous hold’” in denying the asylum claim “without any coherent examination of the surrounding political environment.”
Immigration judges dealing with seriously overloaded dockets, limited authority to grant continuances, and completion quotas will be hard pressed to engage in “complex and contextual factual inquiry.” Practitioners should do their best to educate adjudicators through country condition evidence, expert testimony, memoranda of law, and through detailed direct examination of the asylum-seeker.
Practitioners should also rely on the BIA’s precedent decision in Matter of S-P-, 21 I&N Dec. 486 (BIA 1996), which held that imputed political opinion may satisfy the refugee definition (relying in part on the UNHCR Handbook and Procedures for Determining Refugee Status under the 1951 Convention; and that asylum applicants need not show conclusively why persecution may occur, but need only produce facts to establish that a reasonable person would fear that the danger arises on account of a protected ground. The Board in S-P- also set forth five elements to consider in identifying motive, including “indications in the particular case that the abuse was directed toward modifying or punishing opinion rather than conduct (e.g., statements or actions by the perpetrators or abuse out of proportion to nonpolitical ends)” (Id. at 494). With the support of the UNHCR Guidelines, a strong argument can be made that death threats or actual killings for offenses such as “looking mistrustfully at a gang member,” “wearing certain clothing.” or “accidentally turning up uninvited in a gang zone” constitute “statements or actions…out of proportion to nonpolitical ends” under the criteria found in Matter of S-P-.7
Where another motive exists for the feared harm, practitioners should argue that mixed motives will support a grant of asylum where one of the motives is tethered to a statutory ground. See Matter of S-P-, supra at 495. In Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994), the U.S. Court of Appeals for the Second Circuit responded to INS’ argument that a labor union leader could not establish a nexus to political opinion because his dispute with the Guatemalan government was economic in nature by finding “any attempt to unravel economic from political motives is untenable in this case.” The court concluded that the petitioner’s union activities “imply a political opinion,” concluding that “the Government’s view of what constitutes a political opinion is too narrow.” Or, as Anker and Lawrence explain, “gangs can, for example, view a person who refuses extortion as an enemy opposing them and, at the same time, also want the funds.”
Copyright 2018 Jeffrey S. Chase. All rights reserved.
Notes:
1. 14-10 Immigration Briefings 1 (October 2014).
2. I first heard Farah speak at a country condition training on gang violence in the Northern Triangle held by USCIS for its asylum officers; at my invitation, Farah was a speaker on the same topic at the 2015 EOIR Training Conference for its immigration judges and BIA staff.
3. American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis (Note), 131 HARVARD L.R. 1399 (March 2018).
4. See, e.g., American Courts and the U.N. High Commissioner for Refugees, supra; Bassina Farbenblum, Executive Deference in U.S. Refugee Law: Internationalist Paths Through and Beyond Chevron,” 60 DUKE L.J. 1059 (2011); Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 BERKELEY J. INT’L L. 1 (1997).
The government has offered no substantive legal justification for the Trump administration’s policy of indefinitely separating children from their parents at the border.
On Thursday, Sen. Dianne Feinstein proposed a law that would bar the intentional separation of asylum-seeking parents from their children when they cross the border. “It’s hard to conceive of a policy more horrific than intentionally separating children from their parents as a form of punishment,” the California Democrat said in a statement publicizing the move.
Affidavits from a February lawsuit filed by the American Civil Liberties Union show precisely what Feinstein describes. The Congolese asylum-seeker at the center of the case, known as “Ms. L,” described having her 6-year-old daughter taken away by the U.S. government without explanation. “She was taken into another room and then I heard her screaming: Don’t take me away from my mommy!” the woman wrote. In court filings, the government questioned whether Ms. L was in fact her child’s mother. The woman had her child returned only after the suit was filed and the government was made to conduct a DNA test that proved her parentage.
“[T]hese terrible policies call into question whether we are in violation of our own laws and our obligations under international law,” Feinstein said in proposing a law to stop the practice of splitting up families at the border. Feinstein is right: There seems to be no coherent legal justification for separating children from their parents, some of whom—like Ms. L—presented themselves at a port of entry as asylum-seekers and have not been charged with any crimes.
The rationale top Trump administration officials have stated publicly—that such a practice will deter undocumented immigrants from seeking asylum at the border—appears to be so patently unconstitutional that the government’s own lawyers have renounced it in court. If the broad outlines here sound familiar, that’s because the legal fight over the policy is shaping up as a replay of the battle over President Donald Trump’s disastrous first travel ban, which was quickly struck down as a blatant violation of due process rights.
“I did not even have a chance to comfort my son, because the officers slammed the door shut as soon as he was in hisseat.”— affidavit of Mirian, whose 18-month-old was taken at the Texas border
A federal judge in San Diego is set to rule any day on the question of whether the government is lawlessly abducting immigrant children at the border. The ACLU is seeking a classwide preliminary injunction to put a stop to the practice. Based on a close reading of legal filings in the case, the public statements of policymakers, and a transcript from a critical hearing last month, it’s difficult to fathom how the judiciary could possibly rule in favor of the government.
In court proceedings last month, Judge Dana Sabraw indicated that the case, Ms. L v. ICE—filed by the ACLU on behalf of Ms. L and other asylum-seeking parents who have had their children taken away—should hinge on the due process clause of the Fifth Amendment. Under a series of Supreme Court precedents, family integrity has long been considered a “fundamental” due process right. Among other rulings, the ACLU’s lawsuit cited the Supreme Court’s opinion in 2000’s Troxel v. Granville, which stated that there is “a fundamental liberty interest of natural parents in the care, custody, and management of their child.” This precedent mandates both that the government show a compelling government interest in separating a child and parent—preventing child abuse, for instance—and that it is using the least restrictive means to fulfill that interest.
In the ACLU’s case, the government has not shown a lawful basis for its policy of indefinitely separating immigrant children from their parents at the border. In fact, government lawyers have denied the existence of any such policy at all. In response to Sabraw’s question about whether the government “has a practice, or perhaps even a policy, of separation of families as a deterrence mechanism,” Justice Department attorney Sarah B. Fabian asserted, “There is not such a policy.”
This claim directly contradicts the administration’s publicly stated reasoning. When asked by CNN in March 2017 about the possibility of separating children from their parents at the border, then–Secretary of Homeland Security John Kelly said, “I am considering, in order to deter more movement along this terribly dangerous network, I am considering exactly that.”
Per the New York Times, that policy was put on hold at the time because it was deemed too controversial. But in the last several months, as Trump has reportedly put intense pressure on his Cabinet to reverse an uptick in border crossings by undocumented immigrants, such a policy appears to have been put into place. Last month, the Washington Post reported that a pilot version of a program of separating families had occurred “in the Border Patrol’s El Paso sector, which includes New Mexico, between July and November 2017, and [the administration] said the number of families attempting to cross illegally plunged by 64 percent.” And in a pair of speeches last month, Attorney General Jeff Sessions seemed to herald the launch of a formal policy, calling it a “zero-tolerance” immigration measure. “If you don’t want your child separated, then don’t bring them across the border illegally,” Sessions said. “It’s not our fault that somebody does that.” Kelly, now Trump’s chief of staff, stated again last month in an interview with NPR that the purpose of “family separation” is deterrence. “The name of the game to a large degree … a big name of the game is deterrence,” he said.
The current secretary of Homeland Security, Kirstjen Nielsen, did not provide a direct answer when asked by NPR if “family separation at the border … [was] meant to act as a deterrent,” explaining that it’s very common for adults to get separated from their children when they commit crimes. In testimony before Congress in April, Nielsen said, “When we separate, we separate because the law tells us to, and that is in the interest of the child.”
In a memorandum that outlines the proposal and was obtained by The Washington Post, officials say that threatening adults with criminal charges and prison time would be the “most effective” way to reverse the steadily rising number of attempted crossings. Most parents now caught crossing the border illegally with their children are quickly released to await civil deportation hearings.
“Such a policy would mean separating parents and children, because the parents would be placed in criminal detention, where children cannot be held,” the Post noted.
In a statement provided to the Post, Homeland Security spokeswoman Katie Waldman said, “DHS does not have a policy of separating families at the border for deterrence purposes.” Waldman did justify the splitting of families, though, by claiming it was necessary to combat child smuggling as well as to “protect” children from their own “nefarious” border-crossing parents. “DHS does … have a legal obligation to protect the best interests of the child whether that be from human smugglings, drug traffickers, or nefarious actors who knowingly break our immigration laws and put minor children at risk,” she said.
While the government denies the existence of a concrete policy, the numbers tell a different story. “Customs and Border Protection informed me that 658 children were taken from 638 parents during a 14-day period in May,” Feinstein reported on Thursday. This is a huge uptick from the six-month period between October and April, when the New York Times reported that “more than 700 children”—roughly 120 per month, as compared to 658 in 14 days—were reportedly separated “from adults claiming to be their parents.”
Let’s imagine that, based on all this evidence, Judge Sabraw—who was appointed by George W. Bush—determines there is in fact a new government policy of separating children and parents at the border. The court would then need to examine the government’s stated rationale for enacting such a rule. For the policy to pass constitutional muster, the government needs some legal justification for the indefinite separation of parents from children, even when the parents and children are undocumented immigrants. The Supreme Court held in 2000’s Zadvydas v. Davis that due process rights apply to undocumented immigrants. This holding suggests the government may not separate asylum-seekers from their children indefinitely and without cause. During last month’s arguments, it sounded like the judge believed the policy justification stated by Kelly—deterrence of illegal immigration—was clearly unconstitutional. “A policy of deterring families from entering the United States by separating them … would [that not be] a clear substantive due process violation?” Judge Sabraw asked of Fabian, the government attorney.
“If it was done without any otherwise authority to cause the separation, I think, we might be closer to that problem,” she acknowledged, claiming the government does have such authority stemming from the Immigration and Nationality Act. When Sabraw responded that the government still hadn’t presented a substantive due process rationale, Fabian said the government has a right to separate parents who are jailed for violating the law from their children while those parents are behind bars. The ACLU, in this lawsuit, is not contesting that fact. What it is contesting is the government’s apparent policy of refusing to return children to parents once they’ve served their time—generally around a month for misdemeanor illegal entry—and of taking children from parents who present themselves at a U.S. port of entry seeking asylum and have not been charged with any crime.
When confronted about the legality of these practices, the government has merely asserted they are legal without providing a substantive justification. “They can’t come up with a justification because the truth is that the only justification that makes sense is their perceived view of the deterrence value,” Lee Gelernt, the ACLU attorney litigating the case, told me.
Having reviewed the transcript from the hearing, and having read the government’s legal filings, Gelernt appears to be correct. At May’s hearing, the judge repeatedly questioned Fabian about whether a substantive due process violation had occurred. Fabian asserted it had not. The judge then made clear that the government had to offer an actual argument. “Simply saying there is detention and … therefore the family integrity gives way doesn’t address specifically what’s happening in this case,” Sabraw said. “Doesn’t there have to be some determination in order to comply with Fifth Amendment rights before separately detaining family members?”
Fabian, at this point, simply stated: “We don’t agree that that has to be made.” She then said that when a minor and parent are separated, the Trafficking Victims Protection Reauthorization Act dictates that the minor be placed with another custodian. But she didn’t explain why the decision to indefinitely separate the minor from the parent would be made in the first place.
The notion that a child is better off without his parent not only flies in the face of logic, it also contradicts governmentpolicies.
Later, the judge specifically addressed those situations in which a person has been convicted of an unlawful entry misdemeanor, had their child lawfully separated from them while they were incarcerated, and then been detained by immigration officials separately from their children while awaiting asylum. “Is there any process that [the Department of Health and Human Services] has or DHS has where after a person has served their time, efforts or a process exists to explore the lawful options of reuniting the parent with the child?” Sabraw asked. “There is not a process that would reunite them at that time because she is in ICE custody and remains unavailable,” Fabian responded. “Shouldn’t there be” some process for reuniting “after a person does their time?” the judge asked. Fabian then argued that it is in the best interests of children to remain separated from their detained parent because such a parent is “not going to be a suitable custodian.”
The notion that a child is better off without his parent not only flies in the face of logic, it also contradicts government policies that allow the detention of some undocumented asylum-seekers with their children. If such parents have historically been considered suitable custodians—and in some cases are still considered suitable custodians—how can other similarly situated parents not be considered suitable custodians?
The government ultimately leaned on the argument that DHS must make decisions in a hurry. “The goal is not to prolong that process but to get folks to the location where they can be housed long-term if that is what is going to happen,” Fabian argued. Again, this argument is illogical: It wouldn’t take any longer to decide to keep parents and children together than it would to decide to separate them. Sabraw also asked if DNA testing might help the government distinguish biological parents from child smugglers, as it had in the case of Ms. L. Fabian said she didn’t know if that was “a feasible option.”
The ACLU has asked the court to allow it to add more plaintiffs to Ms. L v. ICE, which was previously filed with two plaintiffs. One of the motions seeking class certification includes affidavits from several other immigrants who’ve had their children taken away at the border. Those affidavits offer more examples of what it looks like when kids as young as 18 months old are literally ripped away from their parents.
Testimony of Mr. U:
All I can remember is how much my son and I were both crying as they took him away. I do not recall anyone questioning whether I am really his biological father or whether I was a danger to him or abusive in any way. I even had my son’s birth certificate proving I am his father. … It has been six months since I last saw my son.
Testimony of Ms. G:
Shortly after arriving, I was told that I was going to be separated from my daughter. There were no doubts expressed that I was my daughter’s biological mother and I have a birth certificate to show our relationship. They did not say that I was a danger to my daughter or was abusive. … I know that [my children] are having a very hard time detained all by themselves without me. They are only six and four years old in a strange country and they need their parent. I hope I can be with my children very soon. I miss them and am scared for them.
Testimony of Ms. J. I. L.
That day, March 13, a woman came to pick up my kids. I was given only five minutes to say goodbye before J.S.P.L. and D.A.P.L. were torn from me. My babies started crying when they found out we were going to be separated. It breaks my heart to remember my youngest wail, “Why do I have to leave? Mami, I want to stay with you!” … In tears myself, I asked my boys to be brave, and I promised we would be together again soon. I begged the woman who took my children to keep them together so they could at least have each other. She promised she would, and she left with my boys. … I am particularly worried about my older son J.S.P.L. who was not doing well back in El Salvador after he saw MS gang members beat me and threaten me. He did not even want to leave my side to go to the restroom. … Both of my sons need their mother. I do not know if they are eating, sleeping, or even going to the restroom.
Testimony of Mirian:
The U.S. immigration officers then told me that they were taking my [18-month old] son from me. They said he would be going to one place and I would be going to another. I asked why the officers were separating my son from me. They did not provide any reason. … The immigration officers made me walk out with my son to a government vehicle and place my son in a car seat in the vehicle. My son was crying as I put him in the seat. I did not even have a chance to comfort my son, because the officers slammed the door shut as soon as he was in his seat. I was crying too. I cry even now when I think about that moment when the border officers took my son away.
Nielsen has said the government is acting as expeditiously as possible in such cases. “It’s not our intent to separate people one day longer than is necessary to prove that there is in fact a custodial relationship,” she told NPR last month. These affidavits call that claim into question.
Gelernt added that he has never seen anything this dramatic in his many years of working on immigration cases and doesn’t believe the public outrage has been nearly commensurate with the actions taking place.
“I just feel like the debate has become so abstract,” Gelernt told me. “If any policymaker could sit in that room for a day and watch these kids begging and screaming not to be taken away, I don’t know how they could continue this practice.” He says he fears the general population is already forgetting about the stakes of this case: “Roseanne will make another comment and the kids will be sitting there for another eight months, and no one will remember them.”
Disingenuous State Department Report Seeks to Block Refugee Women
by JASON DZUBOW on MAY 2, 2018
The 2017 State Department Country Reports on Human Rights Practices is out, and the news is not good. The Report makes clear that the Department of State (“DOS”) has joined our government’s effort to block asylum seekers by any means necessary–including undermining their claims by lying about conditions in the home countries.
A lie is a lie, no matter how many times they try to tell you otherwise.
Let’s start with a bit about the Report itself. Each year, the State Department issues a human rights report for every country in the world. Information in the Report is gleaned from U.S. diplomats “in country,” and from other sources. The U.S. government uses the Reports in various ways, including to help evaluate asylum cases. So when a Report indicates that country conditions are safe, it becomes more difficult for asylum seekers to succeed with their claims.
There have always been issues with these Reports. From the point of view of advocates like me, the Reports sometimes minimize a country’s human rights problems. When that happens, we can submit other evidence–NGO reports, expert witness reports, news articles–to show that our clients face danger despite the optimistic picture painted by the DOS Report. But the fact is, whatever other evidence we submit, the DOS Report carries a lot of weight. It’s certainly not impossible to win an asylum case where the Report is not supportive, but it is more difficult. I imagine that’s doubly true for pro se asylum applicants, who might not be aware of the Report, and might not submit country condition information to overcome it.
That’s why this year’s DOS Report is so disappointing, especially with regards to certain populations. The group I am concerned with today is female asylum seekers from the Northern Triangle (El Salvador, Guatemala, and Honduras). Countries in the Northern Triangle are very dangerous for women. As a result, many women from this region have come to the United States in search of protection.
Over the past two decades, the U.S. government has grudgingly recognized that some such women meet the definition of refugee. But even so, it is still very difficult for most such women–especially if they are unrepresented–to navigate the convoluted path to asylum.
The Trump Administration is working on several fronts to make it even more difficult for women from the Northern Triangle to obtain asylum. For one thing, the Attorney General seems to be reconsidering precedential case law that has cracked open the door for female asylum seekers. He is also moving to charge some “illegal border crossers” with crimes (though it is legal to seek asylum at a port of entry). And now, the 2017 DOS Report is undercutting the factual basis for such claims by whitewashing the dangerous conditions faced by women in Central America.
Just looking at some basic statistics, it’s obvious that something is up. The below chart compares the number of words in the “Women” portions of the 2016 and 2017 DOS Reports for Northern Triangle countries. In each case, the length of the Women’s section has been dramatically reduced:
Country
2016 Report
2017 Report
% Reduction
El Salvador
1364
423
69%
Guatemala
1212
283
77%
Honduras
1235
365
70%
As you can see, the “Women” sections of the 2017 Reports are more than 2/3 shorter than in the 2016 Reports. But numbers alone tell only part of the story. Let’s look at some of what the DOS has eliminated from the 2017 Report in the sub-section called “Rape and Domestic Violence” (and, by the way, DOS has entirely eliminated the portion of the Report devoted to “Reproductive Rights,” but that’s a story for another day). The Report for Honduras is typical, and so we’ll use that as an example.
The law criminalizes all forms of rape of men or women, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. The penalties for rape range from three to nine years’ imprisonment, and the courts enforced these penalties.
Sounds pretty good, aye? The government of Honduras seems to be prosecuting rapists, including spouse-rapists, and the penalties for rape are significant. But here are a few lines from the 2016 Report that didn’t make it into the most recent version:
Violence against women and impunity for perpetrators continued to be a serious problem…. Rape was a serious and pervasive societal problem. The law criminalizes all forms of rape, including spousal rape. The government considers rape a crime of public concern, and the state prosecutes rapists even if victims do not press charges. Prosecutors treat accusations of spousal rape somewhat differently, however, and evaluate such charges on a case-by-case basis…. Violence between domestic and intimate partners continued to be widespread…. In March 2015 the UN special rapporteur on violence against women expressed concern that most women in the country remained marginalized, discriminated against, and at high risk of being subjected to human rights violations, including violence and violations of their sexual and reproductive rights….
So basically what we have is this: The 2017 Report is not a human rights report at all. Rather, it is a report on the state of the law in Honduras. Of course, when the law is not enforced and persecutors enjoy impunity (as indicated in the 2016 Report), laws on the books are not so relevant (and it’s really quite a bit worse than what I’ve indicated here, since the 2016 Report already minimized the violent environment in Honduras–for this reason, in our cases, we often rely on the more honest U.S. Travel Advisory and the OSAC Crime & Safety Report, both created by DOS for U.S. citizens traveling abroad).
How this new Report will impact asylum seekers, we don’t yet know. At a minimum, people will need to supplement their applications with evidence to overcome the rosy picture painted by the DOS Report, and for those asylum seekers who are unable to obtain such evidence, the likelihood of a successful outcome is further reduced.
I’ve said this before, and I will say it again here: What bother’s me most about the Trump Administration’s efforts to block asylum seekers is not that they are making it more difficult to obtain protection–they were elected on a restrictionist platform and they are doing what they said they would do. What bother’s me most is the blatant dishonesty of this Administration, and now of the State Department. If you want to reject female asylum seekers, reject them honestly. Don’t pretend that they are economic migrants and that you are returning them to safe places. At least have the decency to tell them–and the American people–that you are returning them to countries where they face extreme danger and death.
Frankly, there’s nothing too surprising about the new DOS Report. President Trump has made his views on refugees and on women quite clear. But what’s so sad is that the Report represents further evidence that the Administration’s lies have infected yet another esteemed government institution. Not only is this Report bad for asylum seekers, it’s bad for the State Department, which is now complicit in the Administration’s mendacity. Indeed, I can’t help but think that the fate of these asylum seekers is inextricably tied to the fate of the DOS, and the new Report doesn’t bode well for either of them.
Special thanks to Attorney Joanna Gaughan for the idea for this piece. Ms. Gaughan works for the Farrell Law Group in Raleigh, NC. Her practice focuses largely on asylum cases, and she can be reached at joanna.m.gaughan@gmail.com.
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The outright lies, distortions, intentional misuse of statistics, and knowingly false narratives from Trump, Sessions, Nielsen, Miller and the rest of the White Nationalist crowd is all part of the “de-humanization effort.”
Truth be told, the two previous Administrations returned refugees and others entitled to protection to countries where they were in danger. This Administration has ramped up the deadly, illegal, and inhumane program. De-humanization is just part of the effort to mask the full scope of their human rights violations. Not that Trump supporters care too much about human rights, Constitutional rights, or indeed anybody’s rights except their own (which are by no means safe from Trump if he turns on them, as he is wont to do — just ask Jeff “Gonzo Apocalyoto” Sessions or Steve Bannon). Selfish Government for selfish people.
But, the key message here is that the advocacy community needs to inform courts about the biases of the Country Reports and present viable alternatives!
This essay explores the contemporary practice of detaining immigrant women and children — the vast majority of whom are fleeing violence in their home countries and seeking protection in the United States — and the response by a diverse coalition of legal advocates. In spite of heroic advocacy, both within and outside the detention centers from the courts to the media to the White House, family detention continues. By charting the evolution of family detention from the time the Obama Administration resurrected the practice in 2014 and responsive advocacy efforts, this essay maps the multiple levels at which sustained advocacy is needed to stem crises in legal representation and ultimately end family detention.
Due to a perfect storm of indigent detainees without a right to appointed counsel, remote detention centers, and under-resourced nonprofits, legal representation within immigration detention centers is scarce. While the Obama Administration largely ended the practice of family detention in 2009, the same administration started detaining immigrant families en masse just five years later. In response to the rise in numbers of child migrants seeking protection in the United States arriving both with and without their parents, and with the purported aim of deterring future flows, the Obama administration reinstituted the policy of detaining families. The Ad- ministration calls these detention centers “family residential centers,” while advocates use the term “baby jail.”
The response from the advocate community was swift and overwhelming. Lawyers and law students from all over the country traveled to the detention centers, in remote areas of New Mexico and later Texas, to meet the urgent need for representation of these asylum-seeking families. This essay calls for continued engagement by attorneys throughout the nation in filling the justice gap and providing representation to these asylum-seeking families and other detained immigrants.
The crisis in representation for detained immigrants is deepening. Given the success of intensive representation at the family detention centers discussed in this article, advocates are beginning to experiment with the same models in other locations. For example, at the Stewart Detention Center in Lumpkin, Georgia, the Southern Poverty Law Center, in conjunction with four other organizations, launched the Southeast Immigrant Freedom Initiative in 2017. This initiative enlists and trains lawyers to provide free legal representation to immigrants detained in the Southeast who are facing deportation proceedings. The American Immigration Lawyers Association and the American Immigration Council have partnered to create the Immigration Justice Campaign, where pro bono attorneys are trained and mentored when providing representation to detained immigrants in typically underserved locations. Given the expansion of the volunteer model of providing legal services to detained immigrants, opportunities will continue to arise for lawyers, law students, and others to engage in crisis lawyering and advocacy. This article provides the background to understand the government’s practice of detaining families, to the extent that it can be understood, and to emphasize a continuing need for legal services for this population.
The introduction explains the population of asylum seekers and the law and procedure governing their arrival, detention, and release into the United States. The essay then traces the evolution of the U.S. government’s most recent experiment in detaining families from the summer of 2014 to present. The next part outlines the access to counsel crisis for immigrant mothers and children in detention and highlights the difference that representation makes. The article concludes with a call to action to attorneys and non-attorney volunteers nationwide to commit and re-commit to providing services to detained immigrant families and individuals.
MY FAVORITE QUOTE:
We are in an era of incredible need for immigration legal services. That need is most acute within detention centers located outside of major metro- politan areas, including within the family detention centers.
Ultimately, neither the Trump nor the Obama administration can claim to have won or be “winning” with the policy of family detention. The vast majority of women and children still receive a positive result during their credible fear interviews, because they are indeed individuals fleeing persecu- tion under the Refugee Convention. It is a poor use of resources, then, to continue to detain this population. Instead, tax-payer dollars, government energy, and resources, should be invested in providing representation and case management for this population to ensure that they appear in court and follow all required procedures to pursue their claims for protection.125 In the current era of intense immigration enforcement, combined with the Trump Administration’s plans to increase detention bed space and Attorney General Jefferson Beauregard Session’s clear attacks on asylum-seekers,126 family de- tention is, however, likely here to stay.
In light of this reality, crowdsourcing refugee rights, as Stephen Man- ning articulates, is more important than ever.127 It is heartening to see the expansion of the model of lawyering within immigration detention centers expand to centers in Georgia and Louisiana, where asylum grant rates are dismal, conditions of detention dire, with a historical extreme lack of access to counsel. Lawyers are needed to ensure that individuals can properly ac- cess their due process rights and to help the immigration court system run more smoothly.128
Lawyers, specialized in immigration or not, must arm themselves with the knowledge and tools to join this fight. Just as non-immigration lawyers quickly rose to a call to action in January at the airports,129 lawyers must again rise, and continue rising, to provide representation for families and individuals held in immigration detention. This is our time to act and proudly join the brigade of “dirty immigration lawyers” to ensure protection and due process for the most vulnerable.
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Lindsay is “one of the best.” We were colleagues at Georgetown Law when I was an Adjunct Professor and she held the prestigious “CALS Fellowship” working with Professors Andy Schoenholtz and Phil Schrag (of “Refugee Roulette fame”). Lindsay was a guest lecturer in my Refugee Law & Policy class, and I have since returned the favor at both George Mason Law and UDC Law where she now teaches with another of my good friends and superstars, Professor Kristina Campbell. Indeed, my friend Judge Dorothy Harbeck and I are “regulars” at their class and are in the process of planning another session this fall.
Lindsay and Kristina “talk the talk and walk the walk.” They appeared before me frequently at the Arlington Immigration Court with their clinical students. The have also gone “on site” at some of the worst immigration detention facilities in the country to help refugees in need.
In a truly unbiased, merit-based, independent, Immigration Court system (of the future) they would be ideal judges at either the trial or appellate level. They possess exactly the types of amazing scholarship, expertise and “hands on” experience representing actual individual clients before our Immigration Courts that is sorely lacking in, and in my view has largely been systematically banished from, the 21st Century immigration judiciary, to the detriment of our Immigration Courts, Due Process, and the entire American justice system. That’s one reason why our Immigration Courts are functioning so poorly in basic areas like efficiency, deliberation, quality control, and fundamental fairness!
Some important “take aways” from this article:
Contrary to Administration propaganda and false narratives, most of the recent arrivals who have lawyers are found to have credible claims for protection under our laws.
Similarly, if given fair access to competent counsel and time to prepare and present their claims in a non-coercive setting to a truly unbiased decision-maker, I believe that majority would be granted asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).
This is the truth that Trump, Sessions, & Company don’t want revealed: most of the folks we are so cavalierly mistreating are, in fact, legitimate refugees, even under current legal rulings that have been intentionally and unfairly skewed against asylum applicants from Central America for years!
Even those who don’t currently fit the arcane legal categories for protection probably have a legitimate fear of harm or death upon return. They certainly are entitled to fully present and litigate their claims before being returned to life-threatening situations.
Finally, a better country, with better, wiser, more humane leaders, would devise ways of offering these individuals fleeing the Northern Triangle at least temporary protection, either here or in another stable country in this hemisphere, while doing something constructive to address the severe, festering, chronic human rights problems in the Northern Triangle that are sending us these refugees.
The “enforcement only” approach has failed over and over in the past and will continue to do so until we get better political leadership in the future.
In the meantime, join Lindsay, Kristina, and the other “Charter Members of the New Due Process Army” in resisting the evil, immoral, and illegal policies of the Trump Administration.
Due Process Forever! Harm to the most vulnerable among us is harm to all!
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.
Here’s what a practicing immigration attorney has to say about what’s really happening in our broken U.S. Immigration Court system:
I was at the FBA conference in Denver and your keynote speech made me feel like someone actually understands the tragedies that are unfolding in our immigration court system, and is trying to do something about it. Each time I go into court I try to look at the system with new eyes and refreshed hope that today’s trial will be different. Each time I leave court I am reminded of how blatantly biased the judges can be, how the government attorneys are given special treatment, how our clients are badgered and treated inhumanely, and how the “dirty immigration lawyers” such as myself are treated with disdain. I know that I will be ok, but worry to the point of losing sleep over how my clients are treated. Yesterday as I left court after an individual hearing for a 237(a)(1)(H) waiver, my client told me she felt like she was not a human being because of the way she was treated during the trial. I consider myself a part of the due process army and want to know what else I can do to advocate for serious changes, including a complete overhaul, of the EOIR system. I thank you for your time and look forward to hearing from you.
Here’s my response:
You can:
1) Take cases to the Article III Courts. They still have no idea of how Due Process is being mocked every day in the Immigration Courts. They need to be forced to accept responsibility for this travesty which they have the power to end.
2) Make a record of how the IJs are ignoring facts of record and applicable law because they have prejudged cases.
3) Get out the vote for candidates who put Dreamer relief, an independent Immigration Court, and an end to unnecessary and expensive immigration detention at the top of their legislative “to do” list. (Something that the Dems conspicuously failed to do when Obama was elected in 2008).
4) Actively support candidates for state and local office who are pledged to resist the divisive and racially motivated immigration policies of this Administration to the extent possible under the law.
5) Support efforts for universal representation.
It’s both telling and disturbing that most of us who understand the system’s failings and are committed to fixing them are now outside the system — where our voices actually can be heard, our views are taken seriously, and the truth about the national disgrace taking place in our U.S. Immigration Courts under Trump & Sessions can be spoken.
Yes, there are many conscientious, courageous, and hard-working Immigration Judges still in the system. But, they have been “muzzled, degraded, and disrespected.” Instead, those Immigration Judges who are biased against respondents, particularly asylum seekers, willing to cut corners, and oblivious to what Constitutional Due Process actually means for individuals are being empowered and encouraged by Sessions.
How is it fair or reasonable to have a so-called “court system” where conscientious attorneys like this are “losing sleep” over the unfair, degrading, and dehumanizing treatment that they are receiving at the hands of supposed Federal Judges in what purports to be a Federal Court system? Totally outrageous!
Attorneys — particularly those appearing pro bono and “low bono” — are the undisputed heroes of this system, the only ones standing between the Immigration Courts and unimaginable chaos and injustice at the hands of Jeff Sessions. Indeed, notwithstanding this reprehensible mistreatment, private attorneys are leading the battle for true judicial independence in the Immigration Courts over the objections of the DOJ and EOIR. What does that tell you about this system?
A “real” Attorney General, who took his oath of office seriously, would slow down this entire farce and direct retraining of every judge in the system in what “guaranteeing fairness and Due Process for all,” carrying out the generous standards for asylum seekers set forth by the Supreme Court in Cardoza-Fonseca, the BIA in Mogharrabi, and actually reflected in the current regulations really mean in practice!
If Due Process, asylum law, withholding law, and the CAT were properly and fairly applied, the vast majority of applicants and recent arrivals could be competently represented and granted some type of protection either by the DHS or in “short block” Immigration Court hearings. That would both fulfill the law and help reduce the backlog pressure on Immigration Courts, as well as reducing the number of needless petitions for review being filed in the Courts of Appeals to correct basic errors committed by the BIA and the Immigration Courts!
Instead, we are stuck with a “scofflaw” Attorney General who intends to establish and reinforce “worst practices.” It will take a concerted effort on the part of the New Due Process Army to halt the Trump Administration’s attack on human decency and our constitutional rights in the Immigration Court system!
Harm to the most vulnerable among us is harm to all!
On May 23, an amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on behalf of a group of 13 former immigration judges (including myself) and BIA members in the appeal of the BIA’s precedent decision in Matter of W-Y-C- & H-O-B-. In that decision, a three-judge panel of the BIA held that an asylum applicant must clearly delineate its proposed particular social group before the immigration judge. The Board held that the asylum applicant may not alter the social group formulation on appeal to the BIA, citing the “inherently factual nature of the social group analysis.”
Our brief argues that the Board’s reasoning is flawed. The Board has held that the determination of whether a particular social group is cognizable is a question of law which the Board may review de novo. Our brief also points out that the Board’s arguments as to why it will generally not consider a new group on appeal overlooks the fact that it has done just that in the past.
One member of our group, former BIA chairperson Paul W. Schmidt, was the author if the Board’s 1996 landmark decision in Matter of Kasinga, the first BIA precedent to grant a gender-based asylum claim. Two other members of our group, former Board Members Gus Villageliu, and Lory D. Rosenberg, respectively joined in the majority opinion and wrote a concurring opinion in Kasinga. As the three pointed out in the drafting process, the particular social group that the Board approved in that case was neither delineated before the IJ nor proposed by either party on appeal. It was crafted for the first time by the Board itself, in a manner that was consistent with the factual record below and which allowed the Board to grant relief. The three noted that the ability of the Board itself to alter the group’s contours is often necessary to allow an en banc Board to reach consensus.
Our brief also pointed to the Board’s decision in Matter of M-E-V-G- to remand the record where “the respondent’s proposed particular social group has evolved during the pendency of his appeal.” We also point out how circuit courts have frequently cited to the Board’s decades-long practice of clarifying proposed groups.
Our brief additionally underscores the extreme complexity of particular social group formulation, particularly in light of the highly-criticized additional requirements of particularly and social distinction imposed by the Board in recent years. We note that group delineations will often be made by pro se respondents, often with a limited mastery of English, sometimes in detained facilities with limited access to counsel or law libraries.
This was the sixth Amicus brief filed by our group. We are most thankful for the outstanding assistance of attorneys Jean-Claude Andre and Katelyn Rowe of the law firm of Sidley Austin for lending their assistance pro bono for the second time in the drafting of our group’s brief. We also acknowledge the distinguished counsel for the respondents, led by Fatma Marouf of Texas A&M Law School, Geoff Hoffman of the University of Houston Law Center, and Deborah Anker of Harvard Law School.
CORTEZ MASTO, COLLEAGUES CALL ON SESSIONS TO UPHOLD PROTECTIONS FOR LGBTQ ASYLUM SEEKERS FLEEING PERSECUTION
Washington, D.C. – Today, U.S. Senator Cortez (D-Nev) Masto joined Senators Kamala D. Harris (D-Calif) and Dianne Feinstein (D-Calif) and other Senate Democrats in sending a letter to Attorney General Jeff Sessions urging that the Justice Department uphold a ruling by the Board of Immigration Appeals (BIA) that provides protections for LGBTQ asylum seekers who are fleeing persecution. In the letter, the senators highlight the increasing threat of violence LGBTQ individuals face in many parts of the world.
“LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world,” said the senators. “As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals.”
The senators continued, “Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest.”
In addition to Cortez Masto, Harris and Feinstein, the letter was signed by U.S. Senators Tammy Baldwin (D-WI), Patty Murray (D-WA), Amy Klobuchar (D-MN), Kirsten Gillibrand (D-NY), Jeanne Shaheen (D-NH), Richard Blumenthal (D-CT), Tammy Duckworth (D-IL), Cory Booker (D-NJ), Bob Casey (D-PA), Chris Coons (D-DE), Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Bob Menendez (D-NJ).
We write to express our concerns about your pending review of the Board of Immigration Appeals (“BIA”) decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) and the adverse impact such a decision could have on vulnerable populations fleeing persecution and violence. We urge you to uphold the BIA’s decision, which reflects a well-settled matter of law that provides critical protections for vulnerable populations, including LGBTQ individuals subject to private persecution that foreign governments are unwilling or unable to control.
LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world. As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals. As just two alarming examples of state sponsored anti-LGBTQ actions this past year, Russian authorities in Chechnya undertook an anti-gay purge that involved the alleged torture of dozens of men, and Egyptian authorities engaged in a campaign to target and incarcerate individuals solely based on their sexual orientation.
Your referral order for the Matter of A-B- – in which you aim to address, “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal” –has great import for the majority of LGBTQ asylum seekers who arrive in the United States fleeing persecution by private individuals. In the decades since this country first recognized LGBTQ status as a protected particular social group, it has been well established that LGBTQ individuals face grave risks in reporting private persecution or seeking governmental protection from such persecution abroad. Any change to this body of law would be a mistake.
In countries where government authorities engage in serious physical and sexual assaults of LGBTQ individuals, it is effectively impossible for them to seek protection from those same authorities when faced with private persecution. In some countries, simply asking for protection from state authorities can result in government-sponsored persecution. Even where state authorities are not active perpetrators of violence against LGBTQ individuals, they frequently turn a blind eye, emboldening private actors to engage in hate-motivated violence. U.S. State Department research highlights that foreign government retribution towards and lack of assistance for LGBTQ individuals who face private threats of persecution is commonplace, even when the population is not expressly criminalized. This chills the ability of LGBTQ individuals to report such persecution in their home countries.
Societal and familial considerations also often prevent LGBTQ victims of private persecution from coming forward to foreign authorities. They may be threatened with reprisals from their persecutors or coming forward would reveal their LGBTQ status and increase other persecution. In many countries, the act of reporting violence can have deadly consequences.
Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest. As such, we strongly urge you to leave undisturbed the BIA’s decision in Matter of A-B-.
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The effort is likely to be futile. It’s hard to believe that Sessions, given his xenophobic record and anti-asylum rhetoric, certified the case to himself (actually over the objection of both the DHS and the Respondent) just to uphold and strengthen refugee protections for abused women and LGBTQ individuals. Indeed, Sessions has a clear record of anti-LGBTQ views and actions to go along with his anti-asylum bias.
But, the law favoring asylum protections for victims of DV and LGBTQ individuals who suffer harm at the hands of non-state-actors that governments are unwilling or unable to control is now well established. Therefore, Sessions’s likely “scofflaw” attempt to undo it and deny protections to such vulnerable refugees is likely to “muck up the system” and artificially increase the backlogs in the short run, while failing in the long run to achieve the perversion of justice and denial of Due Process for asylum seekers that he seeks to impose.
Surprisingly, the Article III (“real”) courts don’t allow the disgruntled prosecutor to “certify” results that he doesn’t like to himself and rewrite the law in his own favor! That’s why the facade of “courts” operating within the USDOJ must come to an end, sooner or later!
