JUDGE SULLIVAN STUFFS TRUMP’S REQUEST TO KEEP ON VIOLATING ASYLUM LAW PENDING APPEAL — Stay Denied In Grace v. Whitaker!

https://www.cnn.com/2019/01/25/politics/sullivan-asylum-ruling/index.html

Dan Berman reports for CNN:

Washington (CNN)Federal Judge Emmet Sullivan on Friday rejected a Justice Department request to stay his earlier ruling blocking the Trump administration’s policy that makes it difficult for victims fleeing domestic and gang violence to qualify for asylum in the United States.

Last month, Sullivan agreed with a group of women and children who said the policy imposed a heightened standard in reviewing their claims, concluding that the administration must stop deporting migrants currently in the US “without first providing credible fear determinations consistent with the immigration laws.”
Friday, he wrote: “The government now requests a stay, pending appeal of the Court’s Order, to enable the unlawful policies to continue to apply in all expedited removal cases, except the plaintiffs. … Defendants’ motion for stay is DENIED.”
The attorney general has full authority over the immigration courts — a separate court system which operates under the Justice Department.
*********************************
We have an Administration without shame, human decency, or, obviously, the will and skill to govern. And, a DOJ where lawyers act not as legal guardians of the people’s rights, but continue to defend the indefensible, ill serves the American people.
PWS
01-25-19

THE HUMAN AGONY OF ASYLUM: SPEND 4 MIN. WITH MS. A-B- & HUMAN/WOMEN’S RIGHTS EXPERT PROFESSOR KAREN MUSALO — Beaten, Raped, & Threatened With Death By Her Husband, Hounded Throughout Her Country, Abandoned By El Salvadoran Authorities, She Sought Refuge In The U.S., Winning Her Case At The BIA — Then She Was Targeted For A Vicious Unprovoked Attack By Notorious Scofflaw Immigration Judge Stuart Couch & White Nationalist Xenophobe Jeff Sessions — She’s Still Fighting For Her Life!

EOIR & USCIS ISSUE COURT-REQUIRED NEW GUIDANCE ELIMINATING LARGE PORTIONS OF SESSIONS’S BOGUS GUIDANCE IN DOMESTIC VIOLENCE/GANG RELATED CASES — Advocates Should Be Pushing This At All Levels In All Forums!

Dear Colleagues,

Following up on U.S. District Court Judge Emmet Sullivan’s powerful decision in Grace v. Whitaker, which found major elements of Matter of A-B- and the related USCIS Policy Memorandum to be inconsistent with the law, we are pleased to share the instructions which the Court ordered USCIS and EOIR to provide asylum officers and immigration judges conducting credible fear interviews and reviews of negative credible fear findings.  This guidance takes immediate effect and should be relied upon and cited to by advocates.

The Court declared that the following policies contained in Matter of A-B- and the related USCIS Policy Memorandum are arbitrary, capricious, and in violation of immigration law as applied to credible fear proceedings:

1.     The general rule against claims relating to domestic and gang violence.

2.     The requirement that a noncitizen whose claim involves non-governmental persecutors “show the government condoned the private actions or at least demonstrated a complete helplessness to protect the victim.”

3.     The Policy Memorandum’s rule that domestic violence-based particular social group definitions that include “inability to leave” a relationship are impermissibly circular and therefore not cognizable.

4.     The Policy Memorandum’s requirement that individuals must delineate or identify any particular social group in order to satisfy credible fear based on the particular social group protected ground.

5.     The Policy Memorandum’s directive that asylum officers should apply federal circuit court case law only “to the extent that those cases are not inconsistent with Matter of A-B-.

6.     The Policy Memorandum’s directive that asylum officers should apply only the case law of “the circuit” where the individual is “physically located during the credible fear interview.”

While the Court’s order is limited to credible fear interviews in the expedited removal process, we urge advocates to use the Court’s reasoning in merits hearings before the Asylum Office and the Immigration Court, and on review before the BIA and circuit courts.  Of the six findings above, only (4) and (6) are specific to the nature of the credible fear process, which is intended to be a low screening standard, providing the applicant with the benefit of the most advantageous case law.  The other four findings (1,2,3, and 5) are more broadly based on Judge Sullivan’s interpretation of key statutory terms of the refugee definition, and his reasoning should be adopted and argued in the merits context as well.

Best,

Karen
Karen Musalo
Bank of America Foundation Chair in International Law

Professor & Director, Center for Gender & Refugee Studies

SSRN Author Page:  http://ssrn.c

*********************

Thanks, Karen. The actual guidance memos can be found at the link in Karen’s e-mail.

The EOIR “guidance” asserts that it applies only in credible fear reviews. While technically true, as Karen more accurately points out, the rationale of Judge Sullivan’s findings 1, 2, 3, and 5 should apply equally in removal proceedings. Even if the “captive” BIA won’t listen the real, Article III Courts should. That’s why it’s critical to challenge all A-B- denials in the Circuits. And, as I noted before, no Circuit has yet had an opportunity to review A-B-.

Most, if not all, cases denied on the basis of Sessions’s flawed decision in Matter of AB– should be subject to remand from the Article IIIs.  Just another example of how Sessions continues to harm individuals who deserve Due Process, while contributing to the largely DOJ-made backlog and wasting the time of the Article III Courts.

PWS

01-13-19

 

 

NOTORIOUS CHILD ABUSER JEFF SESSIONS ALSO TARGETED REFUGEE WOMEN & GIRLS FOR DEATH, RAPE, TORTURE, & OTHER MAYHEM — HIS EVIL PLANS HIT A ROADBLOCK: THE LAW! — Read The Latest Commentary From Hon. Jeffrey S.Chase On Challenges To Sessions’s Effort To Pervert The Law — Matter of A-B- In Light Of Grace v. Whitaker!

Six months after a significant number of U.S. immigration judges cheered a decision intended to revoke the hard-earned right of domestic violence victims to asylum protection, immigration advocates had their chance to cheer last week’s decision of U.S. District Court Judge Emmet G. Sullivan in Grace v. Whitaker.  The 107-page decision blocks USCIS from applying the standards set forth in a policy memo to its asylum officers implementing the decision of former Attorney General Jeff Sessions in Matter of A-B-.  Judge Sullivan concluded that “it is the will of Congress – and not the whims of the Executive – that determines the standard for expedited removal,” and therefore concluded that the policy changes contained in the USCIS memo were unlawful.

In his decision in Matter of A-B-, Sessions stated that “generally, claims…pertaining to domestic violence or gang violence will not qualify for asylum.”  In a footnote, Sessions added “accordingly, few such claims would satisfy the legal standard to determine whether an [asylum applicant] has a credible fear of persecution.”  Read properly, neither of those statements are binding; they are dicta, reflecting Sessions’ aspirations as to how he would like his decision to be applied in his version of an ideal world.  However, both the BIA and the author of the USCIS policy memo forming the basis of the Grace decision drank the Kool Aid.  The BIA almost immediately began dismissing domestic violence cases without the required individualized legal analysis.  And USCIS, in its memo to asylum officers, stated that in light of A-B-, “few gang-based or domestic violence claims involving particular social groups defined by the members’ vulnerability to harm may…pass the ‘significant probability’ test in credible fear screenings.”1

If one reads Matter of A-B- carefully, meaning if one dismisses the more troubling language as non-binding dicta, its only real change to existing law is to vacate the precedent decision in Matter of A-R-C-G- which had recognized victims of domestic violence as refugees based on their particular social group membership.2   A proper reading of A-B- still allows such cases to be granted, but now means that the whole argument must be reformulated from scratch at each hearing, requiring lengthy, detailed testimony of not only the asylum applicant, but of country experts, sociologists, and others.  Legal theories already stipulated to and memorialized in A-R-C-G- must be repeated in each case.  Such Sisyphean approach seems ill suited to the current million-case backlog.

However, the BIA and the USCIS memo chose to apply Sessions’ dicta as binding case law, an approach that did in fact constitute a change in the existing legal standard.  When the Department of Justice argued to the contrary in Grace, Judge Sullivan called shenanigans, as USCIS’s actual application of the decision’s dicta to credible fear determinations  harmed asylum applicants in a very “life or death” way. The judge also reminded the DOJ of a few really basic, obvious points that it once knew but seems to have forgotten in recent years, namely (1) that the intent of Congress in enacting our asylum laws was to bring our country into compliance with the 1951 Convention on the Status of Refugees; (2) that the UNHCR’s guidelines for interpreting the 1951 Convention are useful interpretive tools that should be consulted in interpreting our asylum laws, and (3) that UNHCR has always called for an expansive application of “particular social group.”  Judge Sullivan further found that as applied by USCIS, the should-be dicta from A-B- constitutes an “arbitrary and capricious” shift in our asylum laws, as it calls for a categorical denial of domestic violence and gang-based claims in place of the fact-based, individualized analysis our asylum law has always required.

How far reaching is the Grace decision?  We know that the decision is binding on USCIS asylum officers, who actually conduct the credible fear interviews.  But is the decision further binding on either immigration judges or judges sitting on the Board of Immigration Appeals?

USCIS of course is part of the Department of Homeland Security.  Immigration judges and BIA members are employees of EOIR, which is part of the Department of Justice.  Its judges are bound by precedent decisions of the Attorney General, whose decisions may only be appealed to the Circuit Courts of Appeal.  However, the credible fear process may only be reviewed by the U.S. District Court for the District of Columbia, and only as to whether a written policy directive or procedure issued under the authority of the Attorney General is unconstitutional or otherwise in violation of law.3 This is how Grace ended up before Judge Sullivan.  The BIA and Immigration Judges generally maintain that they are not bound by decisions of district courts.

Despite these differences, the credible fear interviews conducted by USCIS are necessarily linked to the immigration court hearings of EOIR.  An asylum officer with USCIS recently described the credible fear interview process to me as “pre-screening asylum cases for the immigration judge.”  The credible fear process accounts for the fact that that the applicant has not had time yet to consult with a lawyer or gather documents, might be frightened, and likely doesn’t know the legal standard.  But the purpose of the credible fear interview is to allow the asylum officer to gather enough information from the applicant to determine if, given the time to fully prepare the claim and the assistance of counsel, there is a significant possibility that the applicant could file a successful claim before the immigration judge.  The credible fear standard has always been intended to be a low threshold for those seeking asylum. Before A-B-, a victim of domestic violence was extremely likely to meet such standard.  The USCIS memo reversed this, directing asylum officers to categorically deny such claims.  But now, pursuant to Grace, USCIS must go back to approving these cases under the pre-A-B- legal standard.

When an asylum officer finds that the credible fear standard has not been met, the only review is before an immigration judge in a credible fear review hearing.  Although, as stated above, EOIR generally argues that it is not bound by district court decisions, its immigration judges would seem to be bound by the Grace decision in credible fear review hearings.  Congress provided the district court the authority to determine that a written policy directive of the AG (which was implemented by the USCIS written policy memo) relating to the credible fear process was in violation of law, and Judge Sullivan did just that.  Even were EOIR to determine that the decision applies only to USCIS, the IJ’s role in the credible fear review hearing is to determine if USCIS erred in finding no credible fear. If USCIS is bound by Grace, it would seem that IJs must reverse an asylum officer’s decision that runs contrary to the requirements of Grace.

But since the credible fear standard is based entirely on the likelihood of the asylum application being granted in a full hearing before an immigration judge, can EOIR successfully argue that its judges must apply Grace to conclude that yes, a domestic violence claim has a significant chance of being granted at a hearing in which the IJ will ignore the dicta of A-B-, find that the only real impact of the decision was that it vacated A-R-C-G-, and will thus apply an individualized analysis to an expansive interpretation of particular social group (with reference to UNHCR’s guidelines as an interpretive tool)?  And then, once the case is actually before the court, ignore Grace, and apply what appears to the be BIA’s present approach of categorically denying such claims?

Many immigration judges are presently struggling to understand Matter of A-B-.  The decision was issued on the afternoon of the first day of the IJ’s annual training conference.  This year’s conference was very short on legal analysis, as the present administration doesn’t view immigration judges as independent and neutral adjudicators.  But the judges tapped for the asylum law panel had to throw away the presentation they had spent months planning and instead wing a program on the A-B- decision that they had only first seen the prior afternoon.  Needless to say, the training was not very useful in examining the nuances of the decision.  As a result, fair-minded judges are honestly unsure at present if they are still able to grant domestic violence claims.

Of course, a decision of a circuit court on a direct challenge to A-B- would provide clarification.  However, A-B- itself is presently back before the BIA and unlikely to be decided anytime soon.4  I am aware of only one case involving the issue that has reached the circuit court level, and it is still early in the appeal process.  My guess is that EOIR will issue no guidance nor conduct specialized training for its judges on applying A-B- in light of the Grace decision.  Nor will the BIA issue a new precedent providing detailed analysis to determine that a domestic violence claimant satisfied all of the requirements set out in A-B- and is thus entitled to asylum.

A heartfelt thanks to the team of outstanding attorneys at the ACLU and the Center for Gender and Refugee Studies for their heroic efforts in bringing this successful challenge.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

*******************************************

Four of the “scummiest” things about Sessions’s decision in Matter of A-B-.

  • Sessions is a biased prosecutor with well-know racist proclivities who had no business acting as a quasi-judicial decision maker in A-B-;
  • A-B- was purposely decided in a procedural context that made it impossible for the respondent to immediately challenge it in the Circuit Court;
  • Nevertheless, the untested dicta in A-B- cynically was used by USCIS to cut off access to the hearing system for refugee women who were unfairly returned to dangerous situations with no appeal rights;
  • Some U.S. Immigration Judges improperly used A-B- to “rubber stamp” these illegal denials of access to the hearing system, often mocking Due Process by barring the participation of attorneys attempting to represent refugee women and children.

There are few things more despicable than those charged with fairness and protecting the rights of others abusing their authority by  screwing the most vulnerable among us!

PWS

12-26-18

 

GENDER-BASED PERSECUTION OF WOMEN IN CENTRAL AMERICA IS WIDESPREAD & WELL-ESTABLISHED! — Trump Administration’s Disingenuous Refusal To Treat Them As Refugees Is Illegal & Immoral! –“Homicides will only be brought under control when we teach society that women’s lives are worth more.”

https://www.wsj.com/articles/it-is-better-not-to-have-a-daughter-here-latin-americas-violence-turns-against-women-11545237843?emailToken=5cbcc917221424825baa00c26277a3bdzdI+3vtll7KBkMM00Z6+dsoSHU6OaTUnSQQuir5waepAYBzkaUG3llg70bJ/Sf2HOx/vEO/irclDJDwOJpFXRJ2amiJz9BofjN/oVgB1wR4Meq2bA099I4KJFl6mnIF+UPdNqetFe3GINnT3AxJmN+bjIXPxZD7CpkIoH4UmAzE%3D&reflink=article_email_share

Juan Forero reports for WSJ:

Women in Latin America Are Being Murdered at Record Rates

The deadliest region for men has become perilous for women as well, especially in gang-riddled parts of Central America

  • 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.)
    ‘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.
    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.
    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.
    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.
    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.
    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.
    A mural painted by artist Julia Valencia on a wall in San Salvador denounces femicide.

    Write to Juan Forero at Juan.Forero@wsj.com

    Appeared in the December 20, 2018, print edition as ‘Latin America Turns Deadly for Women.’

    *************************************************

    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.

    PWS

    12-26-18

    HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

    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!

    PWS

    12-21-18

    HERE’S WHAT’S BOGUS ABOUT NIELSEN’S LATEST RESTRICTIONIST SCHEME!

    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?

     

    PWS

    12-20-18

    “OUR GANG” OF RETIRED JUDGES ISSUES STATEMENT ON GRACE v. WHITAKER!

    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

    **********************************************

    Thanks to Jeffrey and the rest of the “Gang” for speaking out so promptly and forcefully!

    PWS

    12-20-18

     

    MOLLY OLMSTEAD & MARK JOSEPH STERN @ SLATE: Administration Should Heed Judge Sullivan’s and Judge Tigar’s Warnings: “The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.”

    https://slate.com/news-and-politics/2018/12/federal-judge-ruling-trump-domestic-violence-asylum-rules.html

    Olmstead & Stern write:

    A federal judge on Wednesday struck down Justice Department rules that made it harder for asylum seekers to make successful claims based on fear of domestic abuse or gang violence, offering yet another judicial blow to the Trump administration’s efforts to unilaterally rewrite immigration law.

    In his ruling, Judge Emmet Sullivan of the U.S. District Court in Washington concluded that the policies—which were rolled out by former Attorney General Jeff Sessions in June—were “arbitrary” and “capricious,” violating federal immigration law as crafted by Congress.

    In his June order, Sessions sought to reverse a 2014 decision by the Board of Immigration Appeals, which held that victims of domestic violence may qualify for asylum. The BIA found at the time that women who are persecuted by their husbands but unable to leave their marriages or obtain help from law enforcement constitute a “particular social group,” one of the factors that would give them a right to seek asylum in the United States. A quirk in immigration law, however, permits the attorney general to singlehandedly reverse BIA decisions—and that’s precisely what Sessions tried to do, asserting that victims of domestic violence are not a “particular social group” because they are defined by their “vulnerability to private criminal activity” rather than a specific protected trait. He held that these women do not suffer true persecution because persecution is “something a government does.”

    Sessions’ logic extended to victims of gang violence, since they, too, face persecution from private individuals, not directly from the government. He claimed that affected applicants may only receive asylum status if they demonstrate that their home government “condoned” violence against them, or demonstrated “complete helplessness” to stop it. “The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime cannot itself establish an asylum claim,” he wrote.

    In response to Sessions’ ruling, the American Civil Liberties Union filed suit in August on behalf of a dozen asylum seekers, mostly women from Central America, fleeing sexual and physical violence. Asylum officers found the asylum seekers’ stories credible—but they were still scheduled for “expedited removal” because asylum officers found they did not have a “credible fear of persecution” under Sessions’ new rules.

    On Wednesday, Sullivan rejected Sessions’ interpretation of the law. He found that “there is no legal basis for an effective categorical ban on domestic violence and gang-related claims.” Like other asylum-seekers, would-be refugees who bring these claims have a right to a credible fear interview; the attorney general cannot carve out an exception with no basis in the text of the statute. Sullivan then repudiated Sessions’ cramped definition of “persecution.” Under federal statute, the judge wrote, a refugee faces persecution if her home government is “unable or unwilling to control” violence against her. She need not prove that the government refused to help her, an overly stringent standard that Sessions had no power to impose.

    Finally, Sullivan found that victims of domestic abuse and gang violence may receive asylum as members of a “particular social group.” Not every victim will be permitted to remain in the U.S. But members of social groups—such as married women trapped in abusive relationships—may prove that their government was unable to protect them from violence, thus qualifying them for asylum. And the government must grant all such applicants credible fear interviews to determine who qualifies. Thanks to Sullivan’s order, asylum seekers denied an interview under Sessions’ policy will now be allowed to make their case.

    Wednesday is not the first time a federal judge has found that the Trump administration has overstepped its ability to interpret immigration law, crossing over into unlawful policy-making in its campaign to curb immigration. This past summer, a District judge in San Diego ruled that family separation violated immigrants’ due process rights and ordered that the government reunite families that were separated under Trump’s “zero tolerance” policy. And just this month, the 9th U.S. Circuit Court of Appeals rebuked the administration for its attempt to rewrite a federal statute by denying asylum to immigrants who enter the country without authorization. The court affirmed an earlier decision by U.S. District Judge Jon S. Tigar holding that the new policy was unlawful. “Whatever the scope of the president’s authority,” Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

    The Trump administration would do well to heed Tigar’s warning. Over and over again, the president and his allies have tried to deport more asylum applicants by misreading or simply ignoring immigration statutes. These actions are unlawfully capricious, as Sullivan sternly reminded the country on Wednesday. His message is clear: The president and attorney general have no right to manipulate the law to accomplish their nativist agenda.

    ***********************************************

    This Administration has total contempt for Federal Courts and the rule of law. Just look at the ways in which the usually disingenuous Sessions routinely abused that term, along with his many bogus narratives and “legal positions” that were thinly veneered White Nationalist restrictionist “talking points.”

    And, the Solicitor General and career lawyers in the DOJ whose job is supposed to be to uphold legal and ethical standards as “officers of the court” have gone “belly up.” They are obviously afraid to “just say no” to some of the invidiously motivated and semi-frivolous legal positions put forth by this Administration, particularly by Sessions, that are tying up the Federal Courts.

    As I have predicted, I think that this Administration will put an end to the de facto role of the Solicitor’s General’s Office as the “Tenth Justice” and has also destroyed the “extra credibility” that Federal Courts traditionally assumed from DOJ lawyers by virtue of their oaths of office and the idea that they “speak for justice” rather than presenting the often more parochial interests of an individual client. Perhaps it’s just as well as the much touted “independence” of the DOJ has steadily become more myth than reality over the past three Administrations.

    That doesn’t mean that we shouldn’t expect better from DOJ lawyers. But, that’s not likely to happen without some “regime change” and a Senate that takes their “advice and consent” role more seriously.

    PWs

    12-19-18

    SCOFFLAWS THWARTED: U.S. DISTRICT JUDGE EMMET G. SULLIVAN EXPOSES SESSIONS’ S OUTRAGEOUSLY ILLEGAL WHITE NATIONALIST ATTACK ON U.S. ASYLUM LAW — MATTER OF A-B- EXCEEDED SCOFFLAW A.G.’S AUTHORITY — Grace v. Whitaker

    Grace v. Sessions, U.S.D.C. D.D.C., 12-19-18, Hon. Emmet G. Sullivan, Published

    Grace 106 12-19-18

    ***********************************************************

    MY STATEMENT ON GRACE V. WHITAKER:

     

    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.

     

    PWS

    12-19-18

     

    GONZO’S WORLD: STILL A BIG LOSER! – He’s Gone, But His Scofflaw Positions Continue To Be Hammered By The Real (“Article III”) Courts! – Federal Judges Smoke Illegal “Sanctuary Cities” & “Transgender Troops” Abuses By Administration!

    https://apple.news/Aw1vvPVvPTMGBMle4Z4fXow

    Sophie Tatum reports for CNN:

    US judge rules against Trump administration in suit over policing grants to ‘sanctuary cities’

    Updated 5:21 PM EST November 30, 2018
    Washington

    A federal judge ruled against the Justice Department on Friday in a lawsuit over withholding federal money from so-called sanctuary cities, the latest blow to the Trump administration’s hardline immigration tactics.

    The lawsuit challenged the Justice Department’s efforts to punish sanctuary cities by withholding a key law enforcement grant the department said was available only to cities that complied with specific immigration enforcement measures.

    In July 2017, then-Attorney General Jeff Sessions announced that applicants for Edward Byrne Memorial Justice Assistance Grants would have to comply with federal immigration enforcement in ways that were unlike years past, like allowing federal law enforcement agents to have access to detainees in jails for questioning about their immigration status.

    According to the ruling, the seven states involved in the lawsuit, as well as New York City, had been receiving the grant money since Congress created the fund for the “modern version of the program in 2006,” and the funds “collectively totaled over $25 million.”

    “In 2017, for the first time in the history of the program, the U.S. Department of Justice (‘DOJ’) and Attorney General (collectively, ‘Defendants’) imposed three immigration-related conditions that grantees must comply with in order to receive funding,” wrote Judge Edgardo Ramos, of the US District Court for the Southern District of New York, in his ruling.

    New York Attorney General Barbara Underwood led the suit and was joined by New Jersey, Rhode Island, Connecticut, Massachusetts, Washington state and Virginia.

    Underwood said in a statement on Friday that the ruling was “a major win for New Yorkers’ public safety.” CNN has reached out to the Justice Department for comment.

    This isn’t the first ruling of its kind — in April, a panel of three judges from the 7th US Circuit Court of Appeals upheld a ruling in favor of the city of Chicago that blocked the Justice Department from adding new requirements for the policing grants.

    *******************************************************

    https://thehill.com/regulation/court-battles/419170-judge-refuses-to-hold-or-limit-ruling-on-transgender-military-ban

    Lydia Wheeler reports in The Hill:

    A federal district court judge on Friday denied the Trump administration’s request to block or limit the scope of a ruling that temporarily prohibits the government from enforcing its ban on transgender people serving in the military.

    Judge Colleen Kollar-Kotelly, a Clinton appointee on the U.S. District Court for the District of Columbia, said the court is not convinced the government will suffer irreparable harm without a stay of the court’s October 2017 preliminary injunction.

    The government had asked for a stay pending any potential, future proceedings in the Supreme Court. Bypassing normal judicial order, the Department of Justice asked the Supreme Court last week to review the case before the D.C. Circuit Court of Appeals has ruled.

    Arguments before the appeals court are scheduled for Dec. 10.

    At the very least, the government asked the district court to limit the nationwide scope of the injunction while the court weighs in, but Kollar-Kotelly refused. She said the government had not convinced the court that a more limited injunction is appropriate.

    “Without supporting evidence, defendants’ bare assertion that the Court’s injunction poses a threat to military readiness is insufficient to overcome the public interest in ensuring that the government does not engage in unconstitutional and discriminatory conduct,” she said.

    “After all, ‘it must be remembered that all Plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them,’ ” she said.

    ***************************************************

    Not surprisingly, policies stemming from racism and homophobia being advanced for crass political reasons aren’t doing very well in Federal Courts. There, the judges tend to prefer cogent legal arguments. The latter is something for which Gonzo was never known. Indeed, a number of the biased based positions he advanced in support of the Administration were so outlandish that the judges actually gave the Government additional time to develop a legal rationale. But, that also proved to be time wasted, because there never was any legal rationale for these policies and legal positions. Just hate and bias, and an ignorance of the real meaning of our Constitution.

    There’s lots of irony, indeed total absurdity, in Sessions’s audaciously bogus claim that he “stood for the rule of law.” Safe to say that no Attorney General since “John the Con” Mitchell has done so much to undermine our Constitutional system and the real “rule of law.”

    PWS

    12-03-18

    SOME ARTICLE III JUDGES “JUST SAY NO” TO SESSIONS’S “ZERO TOLERANCE” ABUSES OF CRIMINAL JUSTICE SYSTEM!

    https://www.washingtonpost.com/local/public-safety/us-judges-balk-at-ice-detention-of-defendants-granted-bail-under-trump-zero-tolerance-push/2018/10/10/ccd42830-c4f7-11e8-b2b5-79270f9cce17_story.html

    Spencer Hsu reports for WashPost:

    Judges in the nation’s federal criminal courts increasingly are balking at what they call unlawful efforts by U.S. immigration authorities to continue to detain people charged with entering the country illegally, even after they have been granted bail.

    The rulings complicate the Trump administration’s “zero tolerance” crackdown on defendants who are charged with illegally crossing the border but whom judges have determined do not pose a flight or safety risk.

    The decisions force prosecutors to make a choice — charge defendants with illegal entry or reentry and risk that a federal judge releases them pending trial, or keep suspects locked up in civil detention pending deportation proceedings and forgo criminal prosecution.

    A recent ruling by a federal judge in Washington highlights the human and legal issues at stake, the case of a dishwasher from El Salvador who has a wife and two children in the District, where he returned after two deportations.

    The surge in such criminal cases stems from an April 2017 announcement by U.S. Attorney General Jeff Sessions prioritizing Justice Department prosecutions of entry and reentry crimes. More than 60,000 people have faced such criminal charges since then, with twice as many new prosecutions this July, the most recent month for which data is available, compared with the same month in 2017, according to Syracuse University’s Transactional Records Access Clearinghouse, which monitors cases.

    Individuals caught without documents on a first offense can be charged with a misdemeanor, but anyone caught in the United States after a prior deportation can be charged with a felony and face more than a year in prison. Immigration-related prosecutions are now the majority of all federal criminal cases, stretching far beyond states bordering Mexico.


    Attorney General Jeff Sessions early this month in Ohio. (Adam Cairns/Columbus Dispatch/AP)

    Advocates for immigrants say the recent court rulings may limit the use of the criminal charges to pressure defendants to abandon efforts to stay in the United States. The impact on overall removal efforts remains to be seen, but courts appear to be pushing back at an expansion of authority by prosecutors and Immigration and Customs Enforcement.

    In the District, one rejection of the tougher tactics came from U.S. District Judge Royce C. Lamberth, a 1987 appointee of President Ronald Reagan. On Sept. 26. Lamberth said the government cannot have it both ways — asking federal courts to deny bail to defendants awaiting criminal trial and then, if a judge disagrees, holding them anyway in the immigration system.

    The decision came in the case of Jaime Omar Vasquez-Benitez, 38, who court papers say was picking food up at a restaurant in July when D.C. police stopped him for suspected gang activity and turned him over to ICE. Federal public defenders say Vasquez-Benitez had quit a gang and fears for his life if he is deported.

    He was charged in August with felony reentry despite deportation orders in 2008 and 2014.

    A federal magistrate and district judge ruled Vasquez-Benitez should be released on bail, but U.S. marshals returned him to ICE custody. Defense attorneys moved to enforce the release order, and the case ended up in front of Lamberth after Vasquez-Benitez was indicted.

    Lamberth ruled that a landmark 1966 U.S. bail statute specifically covers migrants and must “trump” more-general immigration laws, releasing Vasquez-Benitez into a high-intensity supervision program. He wrote that courts have long “upheld as sacrosanct” the principle that no one can act as prosecutor and judge at the same time, and that the Justice Department cannot ignore bail rulings any more than it can shrug off a defendant’s right to a speedy trial.

    The judge said prosecutors can pursue both criminal charges and civil removal cases against defendants but must abide by a judge’s decision to grant bail. Or they can forgo charges and keep defendants locked up in civil detention while pursuing deportation.

    People detained without valid immigration documents may well be worse off if uncharged, “languishing” indefinitely without speedy trial or access to bail in ICE detention camps far from families or counsel, the judge noted.

    “Nevertheless, the government can do that” under immigration law, Lamberth wrote. “But so long as the government invokes the jurisdiction of a federal court, the government must consent to the Court’s custodial dominion over the criminal defendants before it.”

    A decision on whether to appeal is pending. Bill Miller, a spokesman for the U.S. attorney’s office for the District, said the office was reviewing the ruling.

    In a July 2017 Justice Department bulletin to 94 U.S. attorney offices nationwide, Oregon federal prosecutor Gregory R. Nyhus said that federal criminal statutes and civil immigration laws “are reconcilable” and that “courts should be encouraged to harmonize these statutes rather than focusing on [one] to the complete exclusion of the other.”

    The government’s position — that it can hold Vasquez-Benitez strictly for deportation on a reinstated removal order, unrelated to his prosecution — has yet to be decided by an appeals court.

    Rulings by trial judges in similar cases have varied.

    Since July 2017, federal judges in Washington, Manhattan, Brooklyn, Detroit, Cleveland and Austin have rejected the government’s approach, drawing on a 2012 district court opinion in Oregon and a similar 2015 ruling by the U.S. Court of Appeals for the 9th Circuit that “the executive branch has a choice to make” between holding an undocumented person for deportation or prosecuting that person under criminal law and the Constitution.

    Federal judges in Buffalo and Philadelphia have come down on the other side, saying that criminal and immigration laws can “coexist” on “parallel” tracks. Before the Trump administration, prosecutors would typically drop criminal charges to pursue civil removal if a previously deported defendant won bail.

    Yihong “Julie” Mao, staff attorney with the National Immigration Project of the National Lawyers Guild, said the group was “heartened” by court rulings upholding undocumented immigrants’ right to bail and pretrial release based on family and community ties. She added: “This is fundamentally a separation-of-powers issue. The Department of Justice cannot be both judge and prosecutor.”

    Mary Petras, an assistant federal public defender who is representing Vasquez-Benitez in the District, declined to comment.

    In court filings, Assistant U.S. Attorney Kenneth Clair Kohl argued that the defendant’s case is not covered by the 2012 ruling, because ICE is holding him solely to deport him, not to prosecute him.

    The Salvadoran man was first arrested in 1997, falsely claimed Mexican citizenship and was allowed to go to Mexico, according to court papers. He was deported in 2008 after serving a three-year sentence for felony obstruction of justice in the District and again in 2014, before he was caught for a fourth time this July.

    Prosecutors would have prosecuted Vasquez-Benitez even in past years because of what they said in court papers was his “threatening, violent behavior” and felony criminal conviction. Vasquez-Benitez was convicted of obstruction of justice for telling a woman in 2005 she would “pay the consequences” if she called the police, and a 2014 arrest warrant in El Salvador said he has been charged with extortion, prosecutors said.

    “There may come a time . . . [when] immigration proceedings have concluded . . . forcing the United States to choose between physical removal and continuation of this criminal case. That time, however, has not yet come,” wrote Kohl and Assistant U.S. Attorney Elizabeth Dewar in an unsuccessful effort to detain the man.

    Petras told the court the man is a longtime restaurant worker, and his wife works part time as a hotel housekeeper. Both have family nearby, and the couple’s 3-year-old daughter and 9-year-old son attended a recent court hearing.

    Petras argued the man posed no flight risk, because he is seeking to halt his deportation after gang members in El Salvador sent him a message warning that he had “signed his death warrant” by quitting the gang and removing gang tattoos.

    The lawyer said the fact that her client has lived in the Washington area for years and returned shows that he “wants to be here and that he has no intent or incentive to flee.”

    Read more:

    ******************************************

    Compare what is happening in DC and some other jurisdictions with the “go along to get along” approach by some U.S. District Judges and U.S. Magistrate Judges along the border whom I have criticized in prior posts. The latter have allowed Sessions, Nielsen, and co. to turn their courts into “assembly line justice” — the kind that Session is implementing in his “wholly owned” U.S. Immigration Courts.

    It’s pretty clear from the published reports that almost none of those being railroaded through that system actually understand the full immigration implications of their guilty pleas, nor do they understand how they can apply for asylum and what other rights they might have under the “civil immigration system.” Indeed, accepting guilty pleas without insuring that those entering the pleas fully understand the civil immigration situation and implications, including the likelihood of indefinite civil immigration detention and possible denial of a chance for a full hearing before an Immigration Judge, is arguably a violation of the U.S. Supreme Court’s decision in Padilla v. Kentucky.

    I also have a “personal recollection” of Judge Royce Lamberth from decades ago when he was the Chief of the Civil Division at the U.S. Attorneys Office for DC and I was the Deputy General Counsel/Acting General Counsel at the “Legacy INS.” On several occasions I had to trek over from the “Central Office” in the “Chester Arthur Building” at 4th and Eye St., NW to the U.S. Courthouse complex on 5th Street to explain and justify the INS position to Royce.

    He was known as a formidable individual, even in those days — a chief litigator who brooked no-nonsense from USG Agencies and who was concerned with maintaining the Government’s reputation for integrity and legal excellence before the U.S. Courts. That probably has much to do with how he got nominated and confirmed to be a U.S. District Judge and why he still brooks no-nonsense from the “Masters of Nonsense” in the Trump Administration.

    PWS

    10-13-18

    TRUMP ADMINISTRATION SCOFFLAWS THWARTED AGAIN! – US JUDGE SHOOTS DOWN UNLAWFUL ATTACK ON UNIONS AND CIVIL SERVICE!

    https://www.washingtonpost.com/politics/in-victory-for-unions-judge-overturns-key-parts-of-trump-executive-orders/2018/08/25/5458e2bc-a880-11e8-97ce-cc9042272f07_story.html?utm_term=.d1c944e626ce

    Lisa Rein reports for the Washington Post:

    A federal judge late Friday dealt a victory to federal employees and the unions that represent them, invalidating overnight key provisions of a series of Trump administration executive orders aimed at making it easier to fire employees and weaken the unions.

    The overnight ruling by U.S. District Judge Ketanji Brown Jackson in Washington was a setback to the White House’s efforts to rein in the power of federal unions. Though federal employees’ pay is set by Congress, their unions have retained significant power even as private-sector unions have been in decline.

    The three executive orders, issued just before Memorial Day, had sought to severely restrict the use of “official time” — on-duty time that union officials can spend representing their members in grievances and on other issues. The rules also limited issues that could be bargained over in union negotiations. And it rolled back the rights of workers deemed to be poor performers to appeal disciplinary action against them.

    Jackson took issue with key elements of each order and enjoined the administration from enacting them.

    The White House did not immediately respond to a request for comment Saturday.

    The American Federation of Government Employees, the largest of the dozen unions to sue the administration over the executive orders, applauded the ruling. It called it a victory for public-sector unions and the protections Congress gave federal employees in 1978 when it guaranteed civil servants the right to bargain collectively over working conditions in the government.

    “President Trump’s illegal action was a direct assault on the legal rights and protections that Congress specifically guaranteed to the public-sector employees across this country who keep our federal government running every single day,” AFGE’s national president, J. David Cox Sr., said in a statement.

    ************************************

    Lawless actions directed at its perceived “enemies” under the guise of some bogus legal theory are a staple of the Trump/Sessions regime. As the ever disingenuous Sessions has proved recently, every time a Federal Judge quite properly calls him out for his lawless acts, he whines about interference with Executive authority and his authority as the chief legal official of the US. Here’s a guy that apparently got through law school and admitted to the bar without knowing or understanding what Chief Justice Marshall said and meant in probably the single most famous case in US history: Marbury v. Madison. No, Gonzo, you don’t get the final say on what the law is — that only appears to happen in the never-never land of the Immigration Courts!

    The NAIJ, representing our nation’s Immigration Judges (I am a retired member), continues to fight not only for the civil service rights of the judges but for the fair and impartial judicial independence that benefits everyone in America. All of these have been under constant attack by Jeff Sessions and the Trump Administration.

    PWS

    08-27-18

    EXPOSING SESSIONS’S DEADLY DUE PROCESS SCAM: JUDGE SULLIVAN BLOCKS ANOTHER POTENTIAL DEPORTATION TO DEATH AS SESSIONS-LED DOJ ARGUES THAT THE KILLING LINE NOT SUBJECT TO REVIEW — Pro Bono Counsel Jones Day Saves The Day, At Least For Now — “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”

    https://www.law.com/nationallawjournal/2018/08/23/judge-who-forced-feds-to-turn-that-plane-around-blocks-another-deportation/?kw=Judge%20Who%20Forced%20Feds%20to%20%27Turn%20That%20Plane%20Around%27%20Blocks%20Another%20Deportation&et=editorial&bu=NationalLawJournal&cn=20180823&src=EMC-Email&pt=NewsroomUpdates&utm_source=newsletter

    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.

    The government, after the fact, said it was reviewing removal proceduresin the San Antonio immigration office “to identify gaps in oversight.”

    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.”

    ****************************************

    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!) 

    PWS

    08-24-18

     

    THE HILL: NOLAN SAYS ACLU COULD FORCE TRUMP TO ELIMINATE ASYLUM SYSTEM!

    http://thehill.com/opinion/immigration/401633-aclus-lawsuit-may-force-trump-to-stop-granting-asylum-applicationsr

     

    Family Pictures

    Nolan writes:

    . . . .

    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

    . . . .

    **********************************************

    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. Sessionshttps://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.

    PWS

    08-16-18