"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
A Parting Shot At Women
As the Trump Administration comes to an end, let’s remember how it began. On the day following the inauguration, millions participated in Women’s Marches around the world. There is sadly no need to list the reasons why women in particular would feel the need to respond in such a way to a Trump presidency.
It was therefore no surprise that Trump’s first Attorney General issued a decision intended to strip protection under our asylum laws from women who are victims of domestic violence. That decision, Matter of A-B-, was so soundly rejected by U.S. District Court Judge Emmet Sullivan that the U.S. Court of Appeals for the Sixth Circuit relied on his reasoning to conclude that Sessions’s decision had been abrogated. The First and Ninth Circuits further rejected Sessions’s view that the particular social group relied upon in A-B- was legally unsound. The Eighth Circuit rejected Sessions’s description of the standard for proving a government’s inability or unwillingness to control an abusive spouse, for example, as requiring evidence that the government condones his actions, or is completely helpless to prevent them.
The administration tried to codify the views expressed in A-B- and in another case, Matter of L-E-A-, by issuing proposed regulation designed to completely rewrite our asylum laws, with the purpose of making it virtually impossible for domestic violence and gang violence victims to qualify for asylum protection. Those rules, which were rushed out with very little time for public comment, were blocked on January 8 by a U.S. District Court judge.
There are at least two important cases presently before the U.S. Court of Appeals for the Fourth Circuit involving the issues raised in both A-B- and L-E-A-. Had these decisions been issued by, e.g., U.S. District Court judges, the Department of Justice would be representing the government (in the form of the Attorney General), but not the judge who issued the decision below. But as to A-B-, the government attorneys represent an Attorney General acting as judge, and a judge with extraordinary powers. As a result of those powers, the official presently filling the position on an acting basis (who had come to the job a few weeks earlier from the Department of Transportation with absolutely no background in immigration law) was able to unilaterally issue a new decision in the case, in an attempt to shore up issues of concern before the circuits.
So what does the new decision of the recent Deputy Transportation Secretary say? It addresses two issues: the “condone or complete helplessness” language used by Sessions, and the proper test for when persecution can be said to be “on account of” an asylum seeker’s gender, familial relationship, or other group membership.
As to the first issue, the Acting AG now states that Sessions did not change the preexisting legal standard for determining whether a government is unwilling or unable to provide protection. The Acting AG accomplishes this by explaining that “condone” doesn’t actually mean condone, and that “complete helplessness” doesn’t mean complete helplessness.
I’m not sure of the need for what follows on the topic. Perhaps there is an Attorney General Style Guide which advises to never be succinct when there are so many more exciting options available. Besides from sounding overly defensive in explaining why Sessions chose to use terms that sure sounded like they raised the standard in order to supposedly signal that he was doing no such thing, the decision also feels the need to remind us of what that preexisting standard is, in spite of the fact that no one other than perhaps a Deputy Transportation Secretary pretending to be an asylum law scholar is in need of such a recap. Yes, we understand there are no crime-free societies, and the failure to prevent every single crime from occurring is not “unwilling or unable.” No court has ever said that it was. Let’s move on.
The second part of this new A-B- decision addresses a conflict between the views of the Fourth Circuit and the BIA in regard to when a nexus is established. This issue arises in all asylum claims, but the BIA addressed it in a case, Matter of L-E-A-, in which an asylum applicant was threatened by a violent gang because it wished to sell drugs in a store owned by his father. The question was whether the asylum seeker’s fear of harm from the gang was “on account of” his familial relationship to his father.
Our laws recognize that persecution can arise for multiple reasons. A 2005 statute requires a showing that one of the five specific bases for a grant of asylum (i.e. race, religion, nationality, membership in a particular social group, or political opinion) must form “one central reason” for the harm. The BIA itself has defined this to mean that the reason was more than “incidental, tangential, superficial, or subordinate to another reason.”
In the context of family membership, the Fourth Circuit has repeatedly held that this “one central reason” test is satisfied where the family membership formed the reason why the asylum seeker, and not someone else, was targeted for harm. Using the L-E-A- example, the gang members were obviously motivated most of all by their desire for financial gain from the selling of the drugs in the store. But under the Fourth Circuit’s test, the family relationship would also be “one central reason” for the harm, because had the asylum seeker not been the son of the store owner, he wouldn’t have been the one targeted. This is known as a “but for” test, as in “but for” the familial relationship, the asylum seeker wouldn’t have been the one harmed
In L-E-A-, the BIA recognized the Fourth Circuit’s interpretation in a footnote, but added that the case it was deciding didn’t arise under that court’s jurisdiction. The BIA thus went on to create its own test, requiring evidence of an actual animus towards the family. The BIA provided as an example of its new test the assassination of the Romanov family in 1917 Russia, stating that while there were political reasons for the murders, it would be difficult to say that family membership was not one central reason for their persecution.
I’m going to create my own rule here: when you are proposing a particular legal standard, and the judge asks for an example, and all you can come up with is the Romanov family in 1917 Russia, you’re skating on thin ice. The other thing about legal standards is in order for judges to apply them and appeals courts to review them, they have to be understandable. I’m not a student of Russian history, but it would seem to me that (as the BIA acknowledged), the main motive in assassinating the Romanovs was political. I’m not sure what jumps out in that example as evidence of animus towards the family itself. How would one apply the Romanov test to anyone ever appearing in Immigration Court? By comparison, the Fourth Circuit’s test is a very clear one that is easy to apply and review on appeal.
Of course, this is just my humble opinion. The assistant Transportation czar feels differently. Drawing on his extensive minutes of experience in the complex field of asylum, he concluded: “I believe that the Fourth Circuit’s recent interpretation of ‘one central reason’ is not the best reading of the statutory language.”
I am guessing that by saying this in a precedent decision in the final days of this Administration, Transportation guy is hoping that the Fourth Circuit will feel compelled to accord his opinion Brand X deference. Legal scholar Geoffrey Hoffman has pointed out that no such deference is due, as the requirement that the statute be ambiguous is not satisfied. (Geoffrey’s excellent takedown of this same decision can be found here, and is well worth reading).
But the term in question, “on account of,” is also not one requiring agency expertise, which is of course a main justification for judicial deference. It is instead a legal standard not specific to asylum or immigration law.
For example, last June, the Supreme Court decided Bostock v. Clayton County, a case involving employment discrimination based on sexual orientation or identity. In a 6-3 decision authored by Justice Gorsuch, the Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” the relevant phrase for asylum purposes. In determining nexus, the Court stated:
It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.
That last sentence – “if changing the employee’s sex would have yielded a different choice by the employer” – is essentially the same “but for” standard applied by the Fourth Circuit in the asylum context. What would give an Acting Attorney General the authority to hold otherwise?
A conservative commentator observed a difference between the discrimination required in Bostock and the persecution required in L-E-A-, stating that discrimination can involve favoring one group without necessarily hating the group being passed over, whereas persecuting someone requires an animus towards them.
However, the BIA recognized nearly 25 years ago that persecution can be found in harm resulting from actions intended to overcome a characteristic of the victim, and that no subjective punitive or malignant intent is required. The BIA acknowledged this in L-E-A-, noting that a punitive intent is not required.
Furthermore, the legislative history of the REAL ID Act (which created the requirement in question) shows that Congress amended the original proposed requirement that the protected ground be “the central motive” for the harm, to the final language requiring that it be “one central reason.”1 While animus would fall under “motive,” “reason” covers the type of causation central to the Fourth Circuit’s “but for” test. The history seems to undermine the former Transportation official’s claim that under the Fourth Circuit’s test, the “one central reason” language would be “mere surplusage.” This is untrue, as that additional language serves to clarify that the reason can be one of many (as opposed to “the” reason), and that the relevant issue is reason and not motive. Perhaps the author required more than three weeks at the Department of Justice to understand this.
I write this on the last full day of the Trump presidency. Let’s hope that all of the decisions issued by this administration will be vacated shortly; that the BIA will soon be comprised of fair and independent immigration law scholars (preferably as part of an independent Article I Immigration Court), and that future posts will document a much more enlightened era of asylum adjudication.
Note:
1. See Deborah Anker, The Law of Asylum in the United States (Thomson Reuters) at § 5:12.See also Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124 (3d Cir. 2009) (recounting the legislative history and rejecting a dominance test for determining “one central reason”).
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
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Judge Garland and his team must address systemic failures at the dysfunctional DOJ well beyond the festering, unconstitutional mess @ EOIR (“The Clown Show” 🤡) that requires an immediate “remove and replace.” The ethical failings, bad lawyering, dilatory litigating tactics, anti-American attitudes, racism, misogyny, intellectual dishonesty, coddling of authoritarianism, and complicity in the face of tyranny are in every corner of the disgraced Department.
Withdrawal of every bogus, biased, unconstitutional, racist- motivated “precedent” issued during the Trump regime and turning the proper development and fair interpretation of immigration and asylum laws over to a “new BIA” — consisting of real judges who are widely recognized and respected experts in immigration, human rights, and due process — must be a “day one” priority for Judge Garland and his team.
The Clown Show🤡🦹🏿♂️ that has made mincemeat out of American justice — not to mention legal ethics and human morality — must go! And, the problem goes far beyond the “Falls Church Circus!”🎪🤹
🇺🇸⚖️🗽Due Process Forever! Institutionalized misogyny, 🤮☠️never! No more Jeffrey Rosens @ DOJ —ever!
And, firms like Kirkland & Ellis need to think twice about re-employing a sleazy “empty suit” like Rosen who represents everything that is wrong with American law in the 21st century! Public disgrace should not be mistaken for “public service.”
“Normalizing” political toadies, “senior executives,” government “lawyers,” and other “public officials” who carried the water and willingly (often, as in Rosen’s case, enthusiastically, gratuitously, and totally unnecessarily) advanced the objectives of a White Nationalist, anti-American regime whose disgraceful and toxic rule ended in a violent, unhinged, failed insurrection against our democracy encouraged by a Traitor-President, his supporters, and members of the GOP would be a HUGE, perhaps fatal, mistake!
Make no mistake about it! Brave, determined refugee women like Ms. A-B- and her lawyers (superstars like Professor Karen Musalo and Blaine Bookey of the Center for Gender and Refugee Studies) are the true American heroes 🦸🏻 of the resistance to White Nationalist, racist, xenophobic policies of cruelty, hate, and disparaging of the rule of law. Toadies and traitors like Rosen are the eternal villains!🦹🏿♂️ Picking on refugees on the way out the door is an act of supreme cowardice that will live in infamy!🐓🤮
2-1 D.C. Circuit decision in Grace v. Barr, on the AG’s credible-fear rules.
Holding: We reverse the district court’s grant of summary judgment with respect to the circularity rule and the statements regarding domestic- and gang-violence claims, vacate the injunction insofar as it pertains to those issues, and remand to the district court for further proceedings consistent with this opinion. In all other respects, we affirm.
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Marty Lederman
Georgetown University Law Center
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Perhaps the key holdings in this 45-page majority decision are that:
The “condoned- or-completely-helpless standard” cannot replace the “unable or unwilling to control” standard in determining whether persecution by non-state-actors” (e.g., gangs) qualifies; and
The direction to apply “law of the Circuit where the credible fear interview took place” instead of “the interpretation most favorable to the applicant . . . when determining whether the applicant meets the credible fear standard” is arbitrary and capricious.
The full decision with dissent is at the above link.
Of course, with most asylum and immigration laws for arriving individuals basically (and quite illegally) “suspended” during the COVID-19 “crisis,” and the regime’s plans (also patently illegal) to repeal asylum law by regulation in process, the practical effects of this decision remain unclear.
El PLATANAR, El Salvador—Andrea Guzmán was just 17 but sensed the danger. For weeks, the chieftain of a violent gang had made advances that turned to threats when she rebuffed him.
He responded by dispatching seven underlings dressed in black to the two-room house she shared with her family in this hamlet amid corn and bean fields. They tied up her parents and older brother, covered Andrea’s mouth and forcibly led her out into the night in her flip-flops.
Hours later, one of her abductors fired a shot into her forehead in a field nearby. And once again, another woman had been slain, one of thousands in recent years in this violent swath of Central America, simply because of her gender.
“It is better not to have a daughter here,” said her weeping father, José Elmer Guzmán, recounting how he had found his girl, wearing the shorts and a T-shirt she liked to sleep in, off the side of a road. “I should have left the country with my children.”
‘Andrea’s only sin was being beautiful,’ said Claudia Solórzano, shown holding a photo of her murdered daughter. (The Wall Street Journal chose to publish the photograph of Andrea Guzmán’s murder, at top of article, because it viscerally shows the reality of violence sweeping Latin America. Her parents provided the image and gave the Journal permission to use it.)
Latin America has the highest homicide rate in the world. The region’s most-murderous corner—the so-called Northern Triangle of Central America, including El Salvador, Honduras and Guatemala—annually registers the deaths of thousands of young men who shoot, stab, bludgeon and asphyxiate each other, often in gang-related violence.
Now, the Northern Triangle is turning deadly for women, too.
El Salvador, a tiny country of 6 million, has seen homicides of women more than double since 2013 to 469 last year. The death rate per 100,000 women, at 13.5, is more than six times that of the U.S., with Honduras and Guatemala close behind.
Gang violence has turbocharged the problem here, but doesn’t explain all of it. Women die disproportionately at the hands of men throughout much of Latin America. From Mexico to Brazil, episodes of lethal domestic violence are frequent staples on social media and television.
Women in Danger
A total of 2,559 cases of femicide were reported in Latin America and the Caribbean in 2017. Central American nations top the list of the 10 riskiest countries for women.
*The definition of femicide varies from country to country, but at its narrowest means the intentional murder of women because they are women.
Source: United Nations Economic Commission for Latin America and the Caribbean
In August, Brazilians were horrified after a TV news show broadcast security camera video showing a muscle-bound young man chasing his 29-year-old wife around the underground parking lot in their building and then struggling with her in the elevator as it ascended to their fifth-floor apartment. The camera then captured her lifeless body—she had been strangled, investigators later said—falling from the apartment balcony to the street below.
A Peruvian man poured gasoline on 22-year-old Eyvi Ágreda Marchena on a public bus in April and set her on fire. The attack so horrified the country that President Martín Vizcarra visited her in the hospital before she died in June from the burns. Her assailant admitted killing her, telling investigators she had spurned his advances.
“She uses her looks to use men,” he said, according to authorities. “I gave her a stuffed bear and flowers last year when I saw that she was sad. But she was annoyed. She said I wasn’t her boyfriend.”
Friends and family gather at the wake of 31-year-old Berta Hernández Arce, who was murdered in El Salvador by MS-13 gang members after refusing to pay $8,000 they were trying to extort from her and her husband. The assailants shot her 40 times in front of her 6-year-old niece.
What amounts to a public health crisis has women of all ages living in fear, according to researchers and interviews with dozens of women in El Salvador. As elsewhere in Latin America, the challenge is enormous for an overtaxed and poorly funded judicial system that can solve only a minority of homicides, let alone effectively prosecute rapes and spousal battery cases, also endemic here.
The ramifications are broken families and traumatized children. The violence generates migration to the U.S., with women who say they flee to save their lives increasingly filing asylum claims before American immigration judges.
“Women are looked down upon as they grow up, making them second-class citizens,” said Silvia Juárez, a lawyer with the Organization of Salvadoran Women for Peace, which catalogs violence against women. “Homicides will only be brought under control when we teach society that women’s lives are worth more.”
Specialists studying violent crime in Central America say the killings of women often come at the hands of their partners, and that the rise of vicious gangs has added a tragic new dimension.
“Violence against women existed before the gangs,” said Angelica Rivas, a women’s rights lawyer. “The gangs make it worse.”
Activists hold a candlelight protest against femicides in El Salvador on Nov. 30.
The two gangs that operate in nearly all of El Salvador’s 262 municipalities—MS-13 and Barrio 18—treat women as little more than slaves, say law-enforcement authorities and women’s-rights advocates.
Once an initiated gang member, or homeboy as they call themselves, takes possession of a teenage girl or young woman, she risks a beating or death if she tries to leave without permission.
“When you have a woman, she becomes property for you, and only for you, no one else,” said Wilfredo Cabrera, who is 24 and recently left a gang.
The safe houses the gangs use to store weaponry, cash and contraband are also used to imprison girls, some as young as 12 and 13. Gang rape is not uncommon.
Lisseth, a slight, 21-year-old woman, cried gently as she described her life in such a house of horrors. Escaping an abusive family at 12, Lisseth said she was lured by gang members “who said they would take care of me and give the love that my family had not given me.”
Instead, she was forcibly kept in the basement of a safe house. At one point, she recalled, 12 gang members took turns raping her. “When they wanted to use me, they’d say, ‘Come on up,’” said Lisseth, who made an escape and is now in a home that protects women who have been victims of violence.
Lisseth, 21, poses for a portrait while in hiding from the gang MS-13 in El Salvador.
Families with girls in gang-controlled regions know they, too, can be targeted if a homeboy takes an interest. Saying “no” isn’t an option.
The local gang overlord in Manuel Juárez’s neighborhood on the outskirts of San Salvador wanted his oldest daughter, he recounted. He warned her that if she didn’t go along with him, her family would be killed.
“He would see her. He would touch her, kiss her wherever, in the street,” Mr. Juárez, 45, said. “He came and told me, ‘I’m going to take your girl. Do not look for her or else I will kill you.’ ” Mr. Juárez was too afraid to go to the police.
Gang members did take his daughter, leaving her pregnant before the family was able to get her, eventually, to a new life in Spain. Now, Mr. Juárez worries about his youngest daughter, just 16, and whether one option might be to flee to the U.S. should gang members take interest.
It’s too late for Mr. Guzmán and his wife, Claudia Solórzano. They can only recount the sense of hopelessness and anguish they felt as gang members began to notice Andrea, with her blue eyes and long black hair.
First it was a chieftain nicknamed Thunder, who dated Andrea. But when he was jailed, the homeboy who replaced him, who went by the alias Little Spoon, wanted her for himself, said her mother, Ms. Solórzano.
He followed Andrea. He phoned her constantly. Sometimes, he’d wave his semiautomatic handgun at her father, making clear he wouldn’t take no for an answer.
“He’d come across, tell her, ‘Be careful. You look real good,’ ” Ms. Solórzano said. “She would say, ‘I don’t want to be the girlfriend of a gang member.’ When he sent her chocolates, she didn’t eat them.”
Andrea seemed to sense that her life could be cut short. Ms. Solórzano said that near the end, her daughter went so far as to tell a neighbor she wanted two black roses placed on her casket.
Prosecutor Graciela Sagastume, who heads a new unit that investigates violence against women, said attacks have been so commonplace that Salvadoran society had become inured. She said that may be changing in the wake of several high-profile killings of professional women at the hands of their partners, among them a Health Ministry doctor beaten to death by her husband in January.
“Sadly, it took the death of a woman doctor for us to take note that the deaths of women due to domestic violence exist,” Ms. Sagastume said. “They are everyday cases.”
The casket had to be closed at the wake of Berta Hernández Arce because her body was so badly mutilated.
Last year in El Salvador, 345 women became victims of what authorities classified as femicides, the killing of a woman for no other reason than her gender.
Unlike the killings of men, women slain here usually know their killers. In more than half the cases, it was a partner, ex-partner, family member or other acquaintance, including a gang member known to the victim.
Intentional Homicide Rate (per 100,000 people)
Sources: Igarapé Institute (El Salvador, Honduras, Guatemala); FBI (U.S.); National Institute of Statistics and Geography (Mexico)
Whereas men are often shot to death, women are killed with particular viciousness, according to a 2015 Salvadoran government study on femicides that noted how some victims had been tortured, had fingers cut off, been raped, tied up or burned.
“In many cases,” the report said, “the methods used surpassed those needed to cause death.”
Ms. Sagastume said the violence sometimes arises when men are threatened by women who challenge the traditional gender roles of Salvadoran society.
Those factors were at play in the case of Karla Turcios, a newspaper columnist asphyxiated in April, her body left on the side of a road. Prosecutors charged her husband, Mario Huezo. He is jailed, awaiting trial and says he is innocent.
Ms. Sagastume said various aspects of the relationship between Ms. Turcios and Mr. Huezo led investigators to conclude he bristled at her success.
He would drive her to work and then wait in the parking lot until she finished her shift. She couldn’t spend time with co-workers or friends. He held control of her bank accounts.
Yet, she had been the one with the salaried job. She owned the car. She paid for the couple’s daily needs. Her death came after she asked him to contribute his fair share, Ms. Sagastume said, adding, “He felt humiliated by her.”
Mario Huezo, the accused husband of slain journalist Karla Turcios, is led away by police after a court hearing in San Salvador.PHOTO: RODRIGO SURA/EPA-EFE/REX/SHUTTERSTOCK
The Salvadoran government, with aid from the U.S., is developing courts to deal with violence against women and staffing them with specially trained prosecutors, judges and other personnel, among them psychologists, to work with victims. The number of cases of homicide processed has risen to 270 in 2017, from 130 in 2015. Convictions are still a minority of all cases but they rose from 76 in 2015 to 117 last year.
Judge Glenda Baires said the new system, which also handles assaults and sex crimes against women, is persuading more women to denounce their assailants. “Women are now saying, ‘I’m going to say something before I get killed,’” she said.
In a ballad popular here and elsewhere in Latin America, “Kill Them With An Overdose of Tenderness,” the singer advises an extreme response when confronting heartbreak.
“Get a gun if you want, or buy a dagger if you prefer, and become a killer of women,” the lyrics go.
It’s a melodic refrain sung with gusto at parties.
More than a quarter of women in El Salvador reported being a victim of violence in their lifetime while 43% said they had suffered a sexual assault, according to a national household survey in 2017 by the country’s statistics agency.
Women from the “La Cachada” theatre troupe perform a play about the struggles of informal street vendors in El Salvador based on their personal experiences. The troupe has delved into issues of gender-based violence both as a cathartic exercise for themselves and as a public service.
In San Salvador, Meghan López, an American expert on family violence working on her doctorate at Johns Hopkins University, is carrying out research on the impact of parenting skills on children in dangerous, poverty-stricken environments.
She uses a research tool called the Adverse Childhood Experiences International Questionnaire, or ACE-IQ, which identifies 13 factors in young lives that can lead to problems in adulthood. Those ACEs, which include violence, sexual abuse, family dysfunction, neglect, poverty and other factors, are each assigned a point.
Ms. López’s work is still preliminary, but she has found that parents of young children in the four communities she is examining score an average of 8, which she calls “astronomical.” In the U.S., a 4 would be considered high.
Exposure to ACEs can alter the development of a child’s brain as well as their hormonal system, stunting the cognitive tools they need as adults to rationalize and react calmly to stressful situations, Ms. López said. That can cause the brain’s more primitive areas to overdevelop while those responsible for emotional control can be underdeveloped.
What that means on a national scale is violence is bred from one generation to another in El Salvador, a country already buffeted by pervasive violence and the legacy of civil war in the 1980s.
“If we don’t break the cycle of violence,” said Ms. López, “it’s not going to get better.”
A mural painted by artist Julia Valencia on a wall in San Salvador denounces femicide.
Appeared in the December 20, 2018, print edition as ‘Latin America Turns Deadly for Women.’
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Go to the link above for the full article and to be able to read the charts!
Folks, this is the Wall Street Journal, bastion of conservative thought and rhetoric, for Pete’s sake! It’s not HuffPost or Slate. And, it’s not just Latin American Countries that are guilty of devaluing the lives of women. Trump, Pence, Sessions, Kelly, Nielsen, Whitaker, Francisco, U.S. Immigration Judge Couch, some BIA Appellate Immigration Judges, EOIR Officials, DOJ Politicos, Pompeo, GOP Legislators, to name just a few dehumanize women and trash their legal rights on a regular basis by pushing a scofflaw restrictionist immigration agenda targeting people of color, particularly women and girls of color.
“Women in [X Country]” clearly fits the three basic criteria for a “particular social group” protection under asylum and refugee law: 1) immutable/fundamental to identity; 2) particularized; 3) socially distinct. It’s not material that not all women are equally in danger. Those harmed clearly are targeted largely (sometimes entirely) because of their gender. So, there’s a clear “nexus” or “at least one central reason” as the law states. The idea pushed by Sessions and other restrictionists that countries in the Northern Triangle are “willing and able” to protect them is preposterous, as this article demonstrates.
Also women who are activists, members of religious groups opposed to gangs, political candidates, or members of indigenous populations are targeted for political, racial, or religious reasons.
In other words, refugee women fleeing Central America often fit squarely within “classic” refugee protection.
Some are granted protection by conscientious and courageous U.S. Immigration Judges who simply refuse to let the anti-refugee, anti-Central-American bias of their “superiors” in the Administration influence their decisions. But, many other female refugees find themselves improperly denied (or denied any hearing at all by the Asylum Office) by those anxious to please the White Nationalist restrictionists in power, to “expedite” dockets by looking for anti-immigrant “handles” in Sessions’s skewed precedents, or actually relish their chance to release their own anti-asylum biases on women of color.
And, in the absence of positive BIA precedents requiring grants and recognizing the truth about female refugees from Central America, justice is terribly uneven and depends largely on the “luck of the draw.” Traditionally, U.S. Immigration Judges serving in DHS Dentition Centers and at the border often have been less willing than others to recognize legitimate refugees by granting asylum. Not incidentally, those also happen to be locations where representation rates for asylum seekers are lowest.
The treatment of these legitimate refugees by our country is a national disgrace! Recently, in Grace v. Whitaker, U.S. District Judge Emmet Sullivan (what a difference a real, truly independent judge makes) began the arduous process of exposing the legal flaws and bias in the Sessions-initiated attack on justice for vulnerable refugees from Central America.
But, it will take much more effort, as well as a continuing outcry of public outrage, for justice to be restored to the system corrupted by Sessions and his restrictionist ilk. It’s also something that Democrats must and should address for the record during the upcoming Barr confirmation hearings.
No more “Jeff Sessions” as Attorney General! We need a U.S. Attorney General (regardless of party) who will uphold human dignity and enforce the legal rights and privileges of everyone under our Constitution, not just the privileged. We also need an Attorney General with the confidence in and respect for our justice system to let the BIA and the Immigration Courts operate in an independent manner and set their own dockets and legal standards, free from political interference and White Nationalist restrictionist agendas.
WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE
“The Devil is in the Details.” Typical for this group of incompetents, nobody at DHS or in the Mexican Government actually appears to be ready to implement this “historic change.”
Expect chaos. After all, the ink wasn’t even dry on Judge Sullivan’s order in Grace v. Whitaker for USCIS to rewrite its credible fear “Policy Memorandum” to comply with law. Want to bet on whether the “credible fear” interviews in Mexico or at the border will be lawful? How about the reaction of Judge Sullivan if they ignore his order? (Nielsen and her fellow scofflaws might want to consult with Gen. Flynn on that one. This is one judge with limited patience for high level Government officials who run roughshod over the law, are in contempt of court, or perjure themselves.)
By screwing around with procedures, the Administration opens itself up for systemic challenges in more U.S. District Courts instead of being able to limit litigation to Courts of Appeals on petitions to review individual removal orders.
Every “panic attack” by this Administration on the rule of law and the most vulnerable energizes more legal opposition. And, it’s not just within the immigration bar and NGOs any more. “Big Law” and many of the brightest recent graduates of top law schools across the country are getting involved in the “New Due Process Army.”
By concentrating asylum applicants at a limited number of ports of entry, pro bono legal groups could actually find it easier to represent almost all applicants.
Representation of asylum seekers generally improves results, sometimes by as much as 5X.
It could be easier for individuals who are free and authorized to work in Mexico to obtain counsel and prepare their cases than it is for individuals detained in substandard conditions in obscure locations in the U.S.
Freed of the intentionally coercive and demoralizing effects of DHS detention, more applicants will be willing to fully litigate their claims, including taking available administrative and judicial appeals.
As more cases reach the Courts of Appeals (primarily in the 5th & 9th Circuits) more “real” Article III Judges will “have their eyes opened” to the absolute travesty that passes for “justice” and “due process” in the Immigration Courts under Trump.
Shoddily reasoned “precedents” from the BIA and the AG are already failing in the Article III Courts on a regular basis. Three “bit the dust” just within the last week. Expect this trend to accelerate.
The 5th and 9th Circuits will find their dockets overwhelmed with Not Quite Ready For Prime Time (“NQRFPT”) cases “dumped” on them by DOJ and EOIR and are likely to react accordingly.
The last massive assault on Due Process in Immigration Court by the DOJ under Ashcroft basically caused a “mini-rebellion” in the Article III Courts. There were numerous “remands for redos” and Circuit Court rulings harshly reversing and publicly criticizing overly restrictive treatment of asylum cases by Immigration Judges and the BIA, particularly in the area of credibility determinations. Expect the Circuit Courts to “reverse and revise” many of the current anti-asylum precedents from the BIA and the AG.
With almost universal representation, a level playing field supervised by Article III Courts, and all Immigration Judges actually forced to fairly apply the generous standards for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca, and by the BIA in the (oft cited but seldom actually applied) Matter of Mogharrabi, I wouldn’t be surprised to see grant rates for Northern Triangle applicants exceed 50% (where most experts believe they belong).
Overall, there’s a respectable chance that the end result of this ill-conceived policy will be an exposure of the rampant fraud, intellectual dishonesty, and disregard for the true rule of law in this Administration’s treatment of bona fide asylum seekers.
Inevitably, however, asylum seekers will continue to die in Mexico while awaiting hearings. DHS politicos probably will find themselves on a regular basis before enraged House Committees attempting to justify their deadly, cruel, and incompetent policies. This will be a “culture shock” for those used to the “hear no evil, see no evil” attitude of the GOP House.
The Administration appears to have “designed” another of their “built to fail” systems. If they shift the necessary Immigration Judges to the border, the 1.1 million backlog elsewhere will continue to mushroom. If they work on the backlog, the “border waiting line” will grow, causing extreme pressure from the Mexican Government, Congress, and perhaps the Article III Courts. Every death of an asylum seeker (there were three just within the last week or so) will be laid at DHS’s feet.
NOTE TO THE NDPA:
The outstanding historical analysis by Judge Emmet Sullivan in Grace v. Whitaker illustrates what we already know: For years, the Executive Branch through EOIR has been intentionally applying “unduly restrictive standards” to asylum seekers to artificially reduce the number of grants in violation of both the Refugee Act of 1980 and our international obligations. This disingenuous treatment has particularly targeted bona fide asylum seekers from the Northern Triangle, those asserting claims based on a “particular social group,” unrepresented individuals, women, and children.
Worse yet, this totally cynical and disingenuous Administration is using the intentionally and unlawfully “skewed system” and “illegal denials” as well as just downright fabricated statistics and knowingly false narratives to paint a bogus picture of asylum seekers and their lawyers as the “abusers” and the Government as the “defenders of the rule of law.” What poppycock, when we all know the exact opposite is the real truth! Only courageous (mostly pro bono) lawyers and some conscientious judges at both the Immigration Court and Article III levels are standing up for the real rule of law against a scofflaw Administration and its outrageous plan to send genuine refugees back into harm’s way.
Nowhere in the racially charged xenophobic actions and rhetoric of Trump, Sessions, and Whitaker, nor in the intentionally derogatory and demonstrably dishonest rhetoric of Nielsen, nor in the crabbed, intentionally overly restrictive interpretations of asylum law by today’s BIA is there even a hint of the generous humanitarian letter and spirit of the Refugee Act of 1980 and the 1951 UN Convention on Refugees or the “non-narrow” interpretation of “particular social group” so well described and documented by Judge Sullivan. On the contrary, we can well imagine folks like this gleefully and self-righteously pushing the refugee vessel St. Louis out to sea or happily slamming the door in the face of desperate Jewish refugees from Europe who would later die in the Holocaust.
Now is the time to force the Article III Courts and Congress to confront this Administration’s daily violations of law and human rights. We can develop favorable case precedents in the Article III Courts, block unethical and intentionally illegal interference by the Attorney General with Due Process in Immigration Court, and advocate changes in the law and procedures that will finally require the Executive Branch and the Immigration Courts to live up to the abandoned but still valid promise of “becoming the world’s best tribunals, guaranteeing fairness and Due Process for all.” And, the “all” certainly includes the most vulnerable among us: refugees claiming asylum!
In the end, through a combination of the ballot box, Congress, the Article III Courts, and informed public opinion we will be able to thwart the rancid White Nationalist immigration agenda of this Administration and return honest, reasonable Government that works within the Constitution and governs in the overall best interests of our country to the United States.
Thanks for all you do! Keep fighting the “good fight!”
Go for it!
Due Process Forever! Scofflaw Administration Never!
Ever the reliable sycophant and incompetent manager, Nielsen rolls out yet another cruel, ill-considered scheme for mistreating asylum seekers instead of doing her job the way it should be done. Like all the rest of these White Nationalist repressive measures, this one’s likely to fail. The only real questions are how and how soon?
HERE’S WHAT’S BOGUS ABOUT NIELSEN’S LATEST RESTRICTIONIST SCHEME!
There is no known evidence of any widespread “asylum fraud” at the Southern Border; most arriving asylum applicants either wait at a port of entry to be processed or turn themselves in to the Border Patrol immediately upon entry;
As pointed out by Judge Sullivan in Grace v. Whitaker, the law requires that a much lower standard be applied at the “credible fear” stage; naturally, that means that many individuals who pass credible fear will not ultimately be granted asylum;
Not being granted asylum by an Immigration Judge does not mean that the asylum application is frivolous or lacks merit; most individuals face actual danger or death upon return, but whether or not they get asylum depends on difficult, somewhat arcane legal determinations about “causation;”
Also, as pointed out by Judge Sullivan in Grace, the Immigration Courts under the Trump Administration have been applying unlawful and unduly restrictive standards to asylum seekers from Central America; these illegal actions undoubtedly have artificially suppressed the asylum grant rate;
Contrary to Nielsen, the Government’s own numbers as analyzed by TRAC show that 35% of asylum applications are granted by Immigration Judges following merits hearings; the merits asylum grant rates for El Salvador, Guatemala, and Honduras are 23%, 20%, & 18%, much higher than Nielsen’s bogus “nine in ten denied;”
Unquestionably, Immigration Courts grant rates have been suppressed by illegal interpretations by DOJ and, as widely reported, biased anti-asylum attitudes by some U.S. Immigration Judges;
Contrary to Nielsen’s claim, nearly 100% of asylum seekers who are given an opportunity to be represented by counsel appear for their hearings;
It’s highly unlikely that there actually are 786,000 “real” asylum cases in Immigration Court; that’s because court procedures require the filing of all possible applications at the earliest point in time even if they might not actually pursued at the merits hearing; in some cases, asylum is a “backup” application rather than the primary application for relief;
As a result of the Supreme Court’s ruling in Pereira v. Sessions, many asylum seekers are now eligible for “cancellation of removal” based on time in the U.S. and close relatives and will likely pursue that form of relief instead;
The Immigration Court backlog is more the result of shifting priorities, poor enforcement strategies, chronic understaffing, and “Aimless Docket Reshuffling” by successive Administrations than it is because of any actions taken by asylum applicants to delay the process;
Sending more Immigration Judges to border locations to hear cases of those waiting in Mexico is likely to artificially increase the court backlog by diverting resources from cases pending in Immigration Courts in interior locations;
The Administration has yet to put forth a reasonable plan for reducing the Immigration Court backlog;
Given known dangerous conditions in Mexico, vulnerable asylum seekers are unlikely to receive effective protection from the Mexican Government while waiting in Mexico.
What if we had a Government actually committed to making the generous asylum system enacted by Congress and described by Judge Sullivan and Judge Tigar work to protect refugees, rather than working to make it fail to punish and “deter” some of the world’s most courageous, determined, and vulnerable individuals who actually could help our country if they were given a fair chance in a fair system?
Thanks to “Our Leader” Judge Jeffrey Chase for making this happen!
Retired Immigration Judges and Former Member of the Board of Immigration Appeals Statement on Grace v. Whitaker
December 19, 2018
Today’s decision in Grace v. Whitaker provides a lesson in what it truly means to return to the rule of law. In a 107-page decision, Judge Sullivan reminded the current administration of the following truths: that more than 30 years ago (in a decision successfully argued by our former colleague,Immigration Judge Dana Marks), our nation’s highest court recognized that the purpose of the 1980 Refugee Act was to honor our international treaty obligation towards refugees, and that the language of that treaty was meant to be interpreted flexibly, to adapt to changes over time in the agents, victims, and means of persecution, and to be applied fairly to all. The decision affirms that our asylum laws are meant to be applied on an individual, case-by-case basis and not according to a predetermined categorical rule. The decision wisely considered the interpretation of the UNHCR Handbook, and afforded it greater weight than the personal agenda of a former Attorney General in determining our legal obligations to afford protection to refugees who are victims of domestic violence.
The decision imposes a permanent injunction on DHS from applying the awful decision of the former Attorney General in Matter of A-B- in its credible fear determinations. This reasoned decision will prevent this administration from continuing to deny women credibly fearing rape, domestic violence, beatings, shootings, and death in their countries of origin from having the right to their day in court. We applaud Judge Sullivan’s just decision, as well as the truly heroic efforts of the lawyers at the ACLU and Center for Gender and Refugee Studies that made such outcome possible. We also thank all of the attorneys, organizations, judges, experts, and others whose contributions lent invaluable support to this effort.
Hon. Steven R. Abrams
Hon. Sarah M. Burr
Hon. Teofilo Chapa
Hon. George T. Chew
Hon. Jeffrey S. Chase
Hon. Cecelia M. Espenoza
Hon. Noel Ferris
Hon. John F. Gossart, Jr.
Hon. Rebecca Jamil
Hon. William Joyce
Hon. Carol King
Hon. Elizabeth A. Lamb
Hon. Margaret McManus
Hon. Charles Pazar
Hon. George Proctor
Hon. John Richardson
Hon. Lory D. Rosenberg
Hon. Susan Roy
Hon. Paul W. Schmidt
Hon. Polly A. Webber
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Thanks to Jeffrey and the rest of the “Gang” for speaking out so promptly and forcefully!
As a former United States Immigration Judge, Chair of the U.S. Board of Immigration Appeals, and Acting General Counsel and Deputy General Counsel of the “Legacy INS” involved in developing the Refugee Act of 1980, I am deeply gratified by the decision of U.S. District Judge Emmet G. Sullivan today in Grace v. Whitaker. Judge Sullivan strongly supports the rule of law and the generous humanitarian protections and procedural rights afforded by Congress to vulnerable asylum seekers against a lawless and unjustified attack by former Attorney General Sessions in Matter of A-B-, 27 I&N Dec. 316 (AG 2018) and the largely erroneous Policy Memorandum incorporating that decision issued by the Department of Homeland Security (“DHS”).
Among the most important holdings, Judge Sullivan:
Reaffirmed the duty of the Executive Branch to comply with the rule of law as enacted by Congress to protect individuals fleeing persecution;
Reaffirmed the generous humanitarian intent of the asylum provisions of the Refugee Act of 1980;
Recognized the generous “well-founded fear” (10% chance) standard for asylum as enunciated by the U.S. Supreme Court in 1987 in INS v. Cardoza-Fonseca;
Reaffirmed the “extraordinarily low” bar for applicants in “credible fear” interviews before DHS Asylum Officers: “to prevail at a credible fear interview, the alien need only show a ‘significant possibility’ of a one in ten chance of persecution, i.e., a fraction of ten percent;”
Found that Congress intended that the term “particular social group” must be interpreted generously in accordance with the United Nations’ guidance;
Rejected Sessions’s unlawful attempt to generally preclude domestic violence and gang-related claims from qualifying for asylum;
Reaffirmed the necessity of case-by-case determinations of credible fear and asylum;
Rejected Session’s unlawful attempt to engraft a “condoned or completely helpless” requirement on the interpretation of when a foreign government is “unwilling or unable” to protect an individual from persecution by a private party;
Reaffirmed Congress’s unambiguous understanding that persecution means “harm or suffering . . . inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control;”
Rejected DHS’s misinterpretation of the “circularity requirement” in the Policy Memorandum;
Rejected the Department of Justice’s disingenuous argument that Article III Courts must “defer” to administrative interpretations of Article III Court decisions;
Rejected the Policy Memorandum’s illegal requirement that an asylum applicant (usually unrepresented) “delineate” the scope of a particular social group at the credible fear interview;
Emphatically rejected the Policy Memorandum’s attempt to elevate administrative precedents over the conflicting decisions of U.S. Courts of Appeals.
Judge Sullivan’s cogent decision dramatically highlights the problems with an U.S. Immigration Court system that is controlled by political officials, like former Attorney General Sessions, who are not fair and impartial judicial officials and whose actions may be (and in Sessions’s case definitely were) driven by political philosophies and enforcement objectives inconsistent with judicial responsibilities to insure that non-citizens are fairly considered for and when appropriate granted the important, often life-saving, protections conferred by law and guaranteed by due process. A clearly biased political official like Jeff Sessions should ethically never been permitted to act in a quasi-judicial capacity.
As a result of Sessions’s anti-immigrant bias, unlawful actions, and gross mismanagement of the Immigration Courts, innocent lives have been endangered and one of our largest American court systems has been driven to the precipice with an uncontrolled (yet unnecessary) backlog of over 1.1 million cases and crippling quality control issues. When it finally plunges over, it will take a large chunk of our American justice system and the Constitutional protections we all rely upon with it!
Congress must create an independent Article I United States Immigration Court to ensure that the immigration and refugee laws enacted by Congress are applied to individuals in a fair, efficient, and impartial manner.
Many, many thanks to the ACLU and all of the other wonderful pro bono lawyers who stood up for the rule of law and the rights of the most vulnerable among us against the intentionally illegal actions and unethical behavior of this Administration.
C. Ryan Barber reports for the National Law Journal:
Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation
U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.
Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL.
A federal judge on Thursday ordered the Trump administration not to depart a pregnant Honduran woman as she seeks asylum in the United States, two weeks after demanding that the government turn around a plane that had taken a mother and daughter to El Salvador amid their emergency court appeal challenging removal.
U.S. District Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia, granted a temporary stay preventing the Honduran woman’s deportation following a hearing on her challenge to the administration’s decision to make it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.
In court papers filed earlier this week, the Honduran woman’s lawyers—a team from Jones Day—said she fled her home country “after her partner beat her, raped her, and threatened to kill her and their unborn child.” The woman, suing under the pseudonym “Zelda,” is currently being held at a Texas detention center.
“Zelda is challenging a new policy that unlawfully deprives her of her right to seek humanitarian protection from this escalating pattern of persecution,” the woman’s lawyers wrote in a complaint filed Wednesday. The immigrant is represented pro bono by Jones Day partner Julie McEvoy, associate Courtney Burks and of counsel Erin McGinley.
At Thursday’s court hearing, McGinley said her client’s deportation was imminent absent an order from the judge blocking such a move. “Our concern today,” McGinley said, “is that our client may be deported in a matter of hours.”
U.S. Justice Department lawyers on Wednesday filed papers opposing any temporary stay from deportation. A Justice Department lawyer, Erez Reuveni, argued Thursday that the Honduran woman lacked standing to challenge the Justice Department’s new immigration policy, which makes it harder for immigrants seeking asylum to argue fears of domestic violence and gang violence.
After granting the stay preventing the Honduran woman’s deportation, Sullivan made clear he had not forgotten the events of two weeks ago, when he learned in court that the government had deported a mother and daughter while their emergency challenge to deportation was unfolding.
“Somebody … seeking justice in a United States court is spirited away while her attorneys are arguing for justice for her? It’s outrageous,” Sullivan said at the Aug. 9 hearing. “Turn that plane around and bring those people back to the United States.”
Sullivan on Thursday urged Reuveni to alert immigration authorities to his order. Reuveni said he would inform those authorities, adding that he hoped there would not be a recurrence of the issue that arose two weeks earlier.
“It’s got to be more than hopeful,” Sullivan told Reuveni in court Thursday. Reuveni said he could, in the moment, speak for himself and the Justice Department, but not the Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement.
“I cannot speak for ICE until I get on the phone with them and say this is what you need to do immediately,” Reuveni said.
Sullivan said he appreciated Reuveni’s “professionalism” and his efforts to “undo the wrong” that had been done to the Salvadoran mother and daughter earlier this month.
Stressing the need for a stay against Zelda’s deportation, McGinley said at Thursday’s hearing: “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”
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When individuals have access to high quality counsel like Jones Day, the courts pay more attention. That’s why Sessions & co. are working overtime to insure that individuals are hustled though the system without any meaningful access to counsel and, perhaps most outrageously, by excluding counsel from participation in the largely rigged “credible fear review process” before the Immigration Court. This isn’t justice; it isn’t even a parody of justice. It’s something out of a Kafka novel.
No wonder the Sessions-infused DOJ attorneys don’t want any real court to take a look at this abusive and indefensible removal of individuals with serious claims to relief without consideration by a fair and impartial adjudicator operating under the Constitution and our Refugee Act rather than “Sessions’s law.”
Judge Sullivan actually has an opportunity to put an end to this mockery of American justice by halting all removals of asylum seekers until at least a semblance of Due Process is restored to the system. The only question is whether he will do it! The odds are against it; but, with folks like Jones Day arguing in behalf of the unfairly condemned, the chances of halting the “Sessions Death Train” have never been better!
(Full Disclosure: I am a former partner at Jones Day. I’ve never been prouder of my former firm’s efforts to protect the American justice system and vindicate the rights of the most vulnerable among us. Congrats and appreciation to Jones Day Managing Partner Steve Brogan, Global Pro Bono Coordinator Laura Tuell, Partner Julie McEvoy, Of Counsel Erin McGinley, and everyone else involved in this amazing and much needed effort!)
Sessions is trying to eliminate the need for asylum hearings on applications that are based on improper persecution claims. These meritless cases are contributing to an immigration court backlog crisis. If he is prevented from doing this by issuing precedent decisions to provide guidance on how asylum cases are supposed to be handled, the administration will resort to more extreme measures.
The United States does not have to grant any asylum applications. Asylum is discretionary, and the Supreme Court has held that the president can suspend the entry of aliens into the United States when he finds that their entry “would be detrimental to the interests of the United States.”
The court declined to decide whether “some form of inquiry into the persuasiveness of a president’s finding is appropriate.” It seems unlikely, however, that the court would reject a president’s finding that discretionary asylum grants should be suspended until the immigration court backlog crisis is brought under control because allowing the backlog to continue is detrimental to the interests of the United States.
This would not leave asylum seekers without a way to avoid persecution. Withholding of removal is available too and it is mandatory when eligibility has been established. The main difference in eligibility requirements is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that it is more likely than not that he will be persecuted.
But withholding does not entitle aliens to remain in the United States. It just prevents them from being deported to a country where they will be persecuted
. . . .
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Read Nolan’s complete article at the link.
Unlike Nolan, I believe that the ACLU has properly stated a case for jurisdiction under INA 242(e)(3)(A)(ii). Sessions’s decision in Matter of A-B- has the force and effect of a regulation. Moreover, the DHS implementing instructions give it the status of a “written policy” concerning credible fear and expedited removal. Here’s the complaint in Grace v. Sessions: https://www.aclu.org/legal-document/grace-v-sessions-complaint
Contrary to what Nolan suggests in his article, a petition for review of A-B- is not an adequate remedy for these plaintiffs. First, Matter of A-B-, to my knowledge, is still on remand to the Immigration Judge. Therefore, there is no “final order” for judicial review purposes.
Second, Matter of A-B- has never been subject to judicial review in any court. Yet, the plaintiffs in Grace face a likelihood of return to persecution without ever having a chance to challenge A-B- through a petition for review. That’s the result of Sessions’s improperly cutting off access to the Due Process hearing system before an Immigration Judge. If Matter of A-B- is eventually overruled by one or more Courts of Appeals, the respondents will have already been improperly deported to persecution or death.
Nolan also uses some of the questionable EOIR statistics that I commented on separately in my preceding post: https://wp.me/p8eeJm-2W2
The idea that Trump could essentially repeal the US asylum system on the basis of bogus national security concerns seems preposterous on its face. Yet, in the perverted “Age of Trump,” and given the Supremes’ majority’s spineless performance in Trump v. Hawaii, I suppose anything is posssible.
Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL. 