Judge Anne Greer – immigrationcourtside.com

⚖️👍 CONGRATS TO JENNIFER BADE, ESQUIRE ON A RARE BIA VICTORY FOR THE “GOOD GUYS!” — Issues: Venue, Choice of Law — Matter of M-N-I-, 28 I&N Dec. 803 (BIA 2024)

Jennifer C. Bade, EsquireFounder & Managing Partner Bade Law Group Brookline, MA PHOTO: Bade Law Group — Jennifer C. Bade, Esquire
Founder & Managing Partner
Bade Law Group
Brookline, MA
PHOTO: Bade Law Group

Dan Kowalski reports for LexisNexis:

https://www.justice.gov/d9/2024-05/4076.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/bia-on-venue-choice-of-law-matter-of-m-n-i-

Since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. Matter of Garcia, 28 I&N Dec. 693 (BIA 2023), followed.

“In a decision dated October 24, 2023, the Immigration Judge denied the respondent’s application for deferral of removal under the regulations implementing the Convention Against Torture (“CAT”). The respondent, a native and citizen of Morocco, has appealed that decision. The Department of Homeland Security (“DHS”) has not responded to the appeal. Because we agree with the respondent that additional fact-finding and analysis are needed and the Immigration Judge misapplied choice of law precedent, we will remand these proceedings for the entry of a new decision. … The record reflects that the respondent has been detained at the Moshannon Valley Processing Center (“Moshannon”) in Philipsburg, Pennsylvania, throughout these proceedings. The proceedings commenced with the filing of a Notice to Appear (“NTA”) on April 18, 2023, at the Cleveland, Ohio Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. … After the respondent’s individual hearing on October 20, 2023, the Immigration Judge applied Third Circuit law and denied deferral of removal under CAT. … The respondent argues that the Immigration Judge erroneously applied Third Circuit law rather than Sixth Circuit law. We review this issue de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2020). For the reasons discussed below, we agree with the respondent that the Immigration Judge applied the incorrect circuit’s law. … On remand, the Immigration Judge should reevaluate the respondent’s claim under Sixth Circuit law and apply relevant Board precedent, with consideration to the respondent’s appellate arguments concerning the respondent’s gender identity and sexual orientation. See Matter of C-G-T-, 28 I&N Dec. 740, 745 (BIA 2023) (explaining that “when considering future harm, adjudicators should not expect a respondent to hide” the respondent’s sexual orientation).”

[Hats off to Jennifer C. Bade!]

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

Great job, Jennifer! Once again, it’s worth asking ourselves how successful arguments of this kind could ever be made by an unrepresented respondent. If, as is painfully obvious to even a casual observer, the answer is “they couldn’t,” then where is the due process in an overloaded, corner-cutting court system where lack of representation is actually on the increase, despite truly heroic efforts by the private and pro bono bars?

I also find the last sentence of the above summary very helpful. While it certainly states the correct rule regarding sexual orientation cases, my sense is that this part of the Matter of C-G-T- precedent is often ignored at the Immigration Court level and not always corrected by the BIA on appeal. So, it’s certainly worth re-emphasizing!

The BIA’s opinion was written by Appellate Immigration Judge Gorman for a panel that also included Appellate Immigration Judge Greer and Temporary Appellate IJ Crossett.

🇺🇸 Due Process Forever!

PWS

05-30-24

⚖️ FINALITY: BIA says “an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal,” NOT a basis for removal! Matter of Brathwaite, 28 I & N Dec. 751 (BIA 2023) — Congrats to John Peng, Esquire!

https://www.justice.gov/d9/2023-10/4067.pdf

BIA HEADNOTE:

Because an appeal accepted under section 460.30 of the New York Criminal Procedure Law is classified as a direct appeal, a respondent with a pending appeal under this section does not have a final conviction for immigration purposes. Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021), followed.

PANEL: GREER and SAENZ, Appellate Immigration Judges; PEPPER, Temporary Appellate Immigration Judge.

OPINION: Judge Anne J. Greer

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

While a welcome victory for the respondent, notably, this precedent only happened because the Second Circuit had reversed and remanded the BIA’s incorrect application of the finality standards! Brathwaite v. Garland, 3 F.4th 542 (2d Cir. 2021). Without great pro bono lawyering on his side, this respondent would have joined the many others wrongfully removed by EOIR’s sloppy approach to the law and justice for persons who happen to be migrants.

In other words, the “good enough for government” approach, despite some improvements in judicial hiring, still infects EOIR under Garland. Rather than pouring more money into walls, prisons, false “deterrents,” and trying to strip rights from migrants, Congress and the Administration should be focused on solving these glaring due process and quality control issues in the current system!

As I say over and over, unlike some aspects of human migration, this is a solvable problem! It’s not rocket science! 🚀 It’s just good government, dynamic, courageous leadership, and common sense! Better judges 👩🏽‍⚖️ for a better America!🇺🇸

Many congrats to NDPA star attorney John Peng of Prisoners’ Legal Services of New York!

John Peng Esquire
Staff Attorney
Prisoners’ Legal Services of NY
PHOTO: PLSNY

John is a terrific example of the importance of immigration clinical education and the Immigrant Justice Corps! Here’s his bio:

John Peng, Federal Litigation & Appellate Staff Attorney

John joined the Immigration Unit in August 2019 as an Immigrant Justice Corps Fellow. He received his J.D. from the University of Pennsylvania Law School. There, John was an active participant in the Transnational Legal Clinic and focused his coursework on immigration and international human rights law. John was admitted to practice law by the New York State Bar in January 2020.

Approximately four years out of law school, John is establishing legal precedents, saving lives, and leading the way for others! This type of “impact leadership by example” is exactly the vision that led to the establishment of the Immigrant Justice Corps! It’s also why aspiring lawyers who “want to make a difference” right off the bat should consider careers in immigration, human rights, and social justice!

🇺🇸 Due Process Forever!

PWS

10-24-23

🤯JUDGE ANNE GREER’S “PLAIN LANGUAGE” DISSENT GETS LAW RIGHT, BUT DROWNED OUT BY PRO-DHS TRUMP HOLDOVERS! 🤬 — Matter of M-M-A-, 28 I&N Dec. 494 (BIA 2022) — At DHS “Partner’s” Request, BIA Wrongly Restricts IJ’s Independent Discretion To Do Justice!👎🏽

Kangaroos — “Oh, Great and Exalted Masters at DHS Enforcement, how high would you like your humble servants here at the BIA to jump?”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.justice.gov/eoir/page/file/1482556/download

Matter of M-M-A-, Respondent

Decided March 11, 2022

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.

FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel

BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.

WILSON, Appellate Immigration Judge: [Opinion]

For those interested in what the law actually says (clearly an “endangered minority” @ Garland’s BIA), here’s key language from Judge Greer’s dissent:

In my view, when an Immigration Judge elects to undertake the analysis set forth in our precedent under Matter of Y-L-, either independently or at the request of the DHS, and determines that the application is frivolous, then the plain statutory language requires the entry of a frivolousness finding as part of the Immigration Judge’s decision. But whether the Immigration Judge must conduct that analysis in the first place because the DHS requests it is a different question. This key distinction was recognized by the Second Circuit in stating that Immigration Judges “regularly exercise discretion when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 672 F.3d at 186.

Requiring the adjudicator, either independently or at the request of the DHS, to engage in this analysis because the respondent made a material misrepresentation upends current practice by creating a rigid structure not mandated by statute. It equates adverse credibility with frivolousness, which I view as conflicting with the case law. It also removes discretion from the Immigration Judge and transfers it to the DHS. Accordingly, the majority’s interpretation constitutes an unwarranted expansion of the frivolousness provisions.

Although the majority casts this question in terms of whether an Immigration Judge may “ignore” a mandatory bar to asylum, the question is whether the Immigration Judge has the authority to make a judgment about pursuing a frivolousness inquiry. This Immigration Judge did not ignore a request from DHS to consider frivolousness. Rather, she entertained it and made an independent judgment not to proceed based on particular facts and circumstances in this case after deliberation. As discussed, the DHS did not question the judgment she made, which is a critical distinction; rather the DHS questions the ability of the Immigration Judge to make this judgment at all.2

I interpret the language and structure of the statute and development of relevant case law, combined with the sequencing of the frivolousness inquiry and its consequences, to demonstrate the discretionary nature of the frivolousness inquiry. And, absent any challenge to how the Immigration Judge exercised her discretion in this case, which I consider to have been waived, I would dismiss the appeal.

2 The relevant factors for the Immigration Judge to assess in making a threshold determination whether to invoke the frivolousness inquiry are a separate issue not implicated by the posture of this case.

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

BIA to IJs: “When our overlords @ DHS tell you to jump, your duty is to say ‘how high, my masters!’”

Under Garland, the “Miller Lite Holdover BIA” continues to pile up some really wrong, one-sided, and poorly-reasoned decisions that intentionally skew the law against migrants and adversely affect human lives. Decisions that punctuate Judge Joan Churchill’s call for an independent Article I Immigration Judiciary. In an article I posted yesterday, Joan argued persuasively that that EOIR never had true quasi-judicial independence. Decisions like this illustrate her point. https://immigrationcourtside.com/2022/03/12/%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%8f%bb%e2%9a%96%ef%b8%8f%f0%9f%91%a9%f0%9f%8f%be%e2%9a%96%ef%b8%8f%f0%9f%97%bdfeature-the-latest-issue-of-the-abas-judges/

Here, a correct (basically, uncontested on the merits, as Judge Greer points out) grant of a waiver was reversed just because DHS wanted “control” over the judges. “How dare a ‘mere employee’ of the AG exercise discretion in the face of the ICE ACC’s demand? Do these guys think they are ‘real’ judges? Let’s tell our buddy Merrick to get his toadies back in line like they were under Sessions and Barr!” How does the “holdover” BIA’s steady stream of incorrect decisions, institutionalized bias, and “worst practices” advance justice?

The “Biden-Era BIA” is building a legacy of bad law, poor judging, and unnecessarily broken lives. Not exactly what the Biden Administration promised during the election! And, it goes without saying that requiring a fact-heavy “full Y-L- analysis” at the unilateral demand of the DHS will increase the backlog as Garland “shoots for 2 million” in his dysfunctional and chronically misdirected “courts.”

🇺🇸Due Process Forever!

PWS

03-13-22

SPLIT EN BANC BIA MOVES TO LIMIT SUPREME’S PEREIRA RULING: Matter of MENDOZA-HERNANDEZ CAPULA-CORTES 27 I&N Dec. 520 (BIA 2019)

matter_of_mendoza-hernandez_capula-cortes_27_in_dec._520_bia_2019

Matter of MENDOZA-HERNANDEZ CAPULA-CORTES, 27 I&N Dec. 520 (BIA 2019)

HEADNOTE BY BIA STAFF:

A deficient notice to appear that does not include the time and place of an alien’s initial removal hearing is perfected by the subsequent service of a notice of hearing specifying that missing information, which satisfies the notice requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), and triggers the “stop-time” rule of section 240A(d)(1)(A) of the Act, 8 U.S.C. § 1229b(d)(1)(A) (2012). Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), followed.

BIA EN BANC:

MAJORITY OPINION: BIA APPELLATE IMMIGRATION JUDGE GREER, JOINED BY NEAL, Chairman; MALPHRUS, WENDTLAND, MULLANE, MANN, O’CONNOR, LIEBOWITZ, and KELLY, APPELLATE IMMIGRATION JUDGES

DISSENTING OPINION: APPELLATE IMMIGRATION JUDGE GUENDELSBERGER, JOINED BY ADKINS-BLANCH, Vice Chairman; COLE, GRANT, CREPPY, KENDALL CLARK, APPELLATE IMMIGRATION JUDGES

KEY QUOTE FROM DISSENT:

Congress, in section 240A(d)(1)(A) of the Act defined the event that triggers the “stop-time” rule as “service of a notice to appear under section 239(a).” The Court in Pereira, 138 S. Ct. at 2114–15, held that Congress’ reference to “service of a notice to appear under section 239(a),” means a “notice to appear” as defined in section 239(a)(1) of the Act. The Court also held that, “[b]ased on the plain language of the statute, it is clear that to trigger the stop-time rule, the Government must serve a notice to appear that, at the very least, ‘specif[ies]’ the ‘time and place’ of the removal proceedings.” Id. at 2114 (alteration in original) (quoting section 239(a)(1) of the Act). As the Court concluded, “At the end of the day, given the clarity of the plain language, we ‘apply the statute as it is written.’” Id. at 2119–20. The plain language of the Act leaves no room for the majority’s conclusion that a subsequent notice of hearing can cure a notice to appear that fails to specify the time and place of the initial removal hearing.

For these reasons, neither the service of the notice to appear nor the subsequent service of a notice of hearing on the respondents triggered the “stop-time” rule for purposes of cancellation of removal under section 240A of the Act. We therefore respectfully dissent.

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

It’s very unusual these days for the BIA to sit en banc. That means in most precedent cases we only know what the 3–Judge Panel thought and that at least 8 Judges on the en banc BIA agreed to publication (regardless of whether they agreed with the result).

This won”t happen at all under Barr’s new “Dumb Down the BIA Proposal.” The BIA will be diluted into “regional adjudication centers.” Any panel of three “Judges” (actually reduced to the role of DOJ adjudicators working for one of the Administration’s immigration enforcement politicos) could designate a precedent by majority vote. Thus, a two-Judge panel majority could create a precedent over the objection of a dissenting Judge and without dialogue with or approval of their many colleagues. Nice way to run the “railroad.”

Congrats to the six dissenting Judges who stood up for the better view of the law! It might not help your careers in today’s DOJ, but it is encouraging to know there is some internal resistance to Barr’s one-sided “deportation railway.”

If the dissenters are correct, the majority’s view could cause incredible additional disruption, “aimless docket reshuffling,” “do-overs,” and unfairness in an already dysfunctional system. That’s because tens of thousands of cases that would face summary denial for failure to meet the ten-year cutoff under the majority’s view would be entitled to full merits hearings on their cancellation of removal applications under the dissenters’ view.

Once again, lives will be in limbo while the Article III Courts work through all of the legal implications of EOIR’s acquiescence and participation in the DHS’s conscious decision to ignore the “Notice to Appear” requirements set forth by Congress in the INA.

PWS

05-03-19

LATEST BIA PRECEDENT COMBINES ABSURDITY WITH MISOGYNY – Divorced Woman Can Only Overcome “Public Charge” With Affidavit Of Support From EX-HUSBAND!” – MATTER OF SOTHON SONG, 27 I&N DEC. 488 (BIA 2018) – “Kangaroo Court” Continues To “Hop Along” At Expense Of Respondents, Common Sense, And Fundamental Fairness!

https://www.justice.gov/eoir/page/file/1112411/download

Matter of Sothon Song, 27 I&N Dec. 488 (BIA 2018)

BIA HEADNOTE:

An applicant for adjustment of status who was admitted on a K-1 visa, fulfilled the terms of the visa by marrying the petitioner, and was later divorced must submit an affidavit of support from the petitioner to establish that he or she is not inadmissible as a public charge under section 212(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(4) (2012).

PANEL: BIA APPELLATE IMMIGRATION JUDGES GREER & WENDTLAND, TEMPORARY APPELLATE IMMIGRATION JUDGE DONOVAN

OPINION BY: JUDGE LINDA WENDTLAND

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

Talk about standing rationality and public policy on its head!!

And, without knowledge of this counterintuitive interpretation, how would the respondent, who has already been divorced, comply with the suggestion that the divorce be structured in a manner that preserves the affidavit of support. As long as the affidavit of support complies with the legal requirements of willingness and ability to pay, what possible rational difference can it make who gives it?

Hopefully, somebody will take this to the “real courts.”

PWS

11-19-18

BIA’S LATEST ON CAT DETACHED FROM REALITY – MATTER OF J-R-G-P, 27 I &N DEC. 482 (BIA 2018)

3944_ed

Matter of J-R-G-P-, 27 I & N Dec. 482 (BIA 2018)

BIA HEADNOTE:

Where the evidence regarding an application for protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988), plausibly establishes that abusive or squalid conditions

n pretrial detention facilities, prisons, or mental health institutions in the country of removal are the result of neglect, a lack of resources, or insufficient training and education, rather than a specific intent to cause severe pain and suffering, an Immigration Judge’s finding that the applicant did not establish a sufficient likelihood that he or she will experience “torture” in these settings is not clearly erroneous.

PANEL: APPELLATE IMMIGRATION JUDGES GREER and WENDTLAND; CROSSETT, TEMPORARY APPELLATE IMMIGRATION JUDGE

OPINION BY: JUDGE ANNE GREER

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

BIA’S LATEST ON CAT DETACHED FROM REALITY – MATTER OF J-R-G-P, 27 I &N DEC. 482 (BIA 2018)

- - No dialogue, no dissent, on today’s BIA. And, yes, the reviewing courts have largely deferred to the BIA’s interpretation of “specific intent.”
  - But, there are other plausible constructions that actually are more consistent with the purpose of the CAT to prevent the use of torture. In her dissenting opinion in Matter of J-E-, 23 I &N Dec. 291 (BIA 2002) my former colleague Judge Lory Diana Rosenberg set forth a “better view” (note, I also filed a vigorous separate dissenting opinion in J-E-):
    - “The majority’s reading of the regulations functionally converts the Senate understanding that torture must be specifically intended into a “specific intent” requirement. I disagree. I can find no basis to conclude that the Senate understanding was intended to require proof of an intent to accomplish a precise criminal act, as the majority contends is required. See Matter of J-E-, supra, at 301 (defining “specific intent”). Rather, the plain language of the text of 8 C.F.R. § 208.18(a)(5) reflects only that something more than an accidental consequence is necessary to establish the probability of torture. Id. (stating plainly that unanticipated or unintended pain and suffering that is severe enough to constitute torture is not covered). Moreover, 8 C.F.R. § 208.18(a)(4) states that a threat of infliction of severe physical pain or suffering may amount to torture.”
  - The J-R-G-P- opinion basically analogizes the intentionally pathetic efforts of the Mexican Government to deal with mental illness with the efforts of “poor countries like Haiti” at issue in Matter of J-E.
    - But, Mexico is actually the 14^th largest economy in the world (11^th by consumer buying power); Haiti rates 141^st. It appears Mexico in fact has more than adequate resources to deal with mental illness; it has just intentionally chosen not to do so, even knowing the severe harm constituting torture that choice intentionally inflicts on individuals.
  - The opinion also minimizes the evidence of the intentionally torturous conditions that exist in the Mexican institutional mental health system.
    - From the 2017 State Department Country Report on Mexico: Among the numerous human rights abuses: “lethal violence and sexual assault against institutionalized persons with disabilities;”
    - Here’s how the same Country Report addresses the specifically horrible treatment of institutionalized individuals with disabilities: “Abuses in mental health institutions and care facilities, including those for children, were a problem. Abuses of persons with disabilities included lack of access to justice, the use of physical and chemical restraints, physical and sexual abuse, trafficking, forced labor, disappearances, and illegal adoption of institutionalized children. Institutionalized persons with disabilities often lacked adequate medical care and rehabilitation, privacy, and clothing and often ate, slept, and bathed in unhygienic conditions. They were vulnerable to abuse from staff members, other patients, or guests at facilities where there was inadequate supervision. Documentation supporting the person’s identity and origin was lacking, and there were instances of disappearances.
    - As of August 25, the NGO Disability Rights International (DRI) reported that most residents had been moved to other institutions from the privately run institution Casa Esperanza, where they were allegedly victims of pervasive sexual abuse by staff and, in some cases, human trafficking. Two of the victims died within the first six months after transfer to other facilities, and the third was sexually abused. DRI stated the victim was raped repeatedly during a period of seven months at the Fundacion PARLAS I.A.P. and that another woman was physically abused at an institution in another state to which she was transferred.
  - Here’s the “real skinny” on how Mexico intentionally scrimps on budget and tortures those institutionalized for mental health disabilities: “THE NIGHTMARE THAT IS MEXICO’S MENTAL HEALTH SYSTEM byAriel Jacoby from Medelita (https://www.medelita.com) | Thursday, Jan 21, 2016 tags: features (https://www.medelita.com/blog/category/features)health-feat-img.jpg&url=https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental– system/)
    - Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos (http://abcnews.go.com/Health/mexican-psychiatric-institution-hell/story?id=12267276)” – abandoned ones.
    - It’s an accurate description for these lost souls. A 93-page report from Disability Rights International (http://s3.amazonaws.com/nytdocs/docs/526/526.pdf) revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.
    - Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times (http://www.nytimes.com/2010/12/01/world/americas/01mexico.html)). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.
    - In this dismal hole of human despair, atrocities are ubiquitous and plentiful (http://www.ipsnews.net/2011/01/appalling-conditions-in-mexicos-mental-health-institutions/). Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

- - - - The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed by Mexican officials.
      - In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.
      - The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.
      - The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities (http://www.un.org/disabilities/default.asp? navid=13&pid=150). But it is clear that not much has changed within the system itself.

Bottom line: The BIA is using “legalese” to “normalize” sending an ill individual back to probable intentional torture in a “dismal hole of human despair.” After all, if being intentionally thrown in this kind of “torture chamber” by a country that has intentionally chosen to ignore, or in many cases aggravate, extreme human rights abuses, then who indeed could actually win protection under CAT? The message is clear — nobody! Use this case to deny ‘em all! Meet those quotas! Keep the assembly line moving!

Political officials of all Administrations have never been enthusiastic about complying with our international obligations under the CAT. Several Attorneys General, BIA Appellate Immigration Judges, and some Immigration Judges have found lots of creative ways to narrow the scope of protection, raise the standards of proof to near impossible levels, and to intentionally misconstrue country conditions against CAT applicants.

Undoubtedly, that gratifies and satisfies the desires of their political masters and handlers. Not surprisingly it comes as the Administration is denying access to asylum seekers and sending them into the CAT “reasonable fear” process.

What it doesn’t do is honestly live up to our solemn and binding international and human rights agreements, nor does it comply with Constitutional concepts of fundamental fairness and Due Process.

We need an independent U.S. Immigration Court System populated by Judges from diverse backgrounds with expertise in immigration and human rights laws, human empathy, and the courage and integrity to stand up for the full legal and human rights of the most vulnerable and endangered individuals in our legal system. Even when it could be “career threatening!”

PWS

11-16-18

SPLIT BIA FINALLY RULES ON “FINALITY” – MATTER OF J.M. ACOSTA, 27 I&N DEC. 420 (BIA 2018)

3934JM ACOSTA

Matter of J.M. ACOSTA, 27 I&N Dec. 420 (BIA 2018)

BIA HEADNOTE:

(1) A conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.

(2) Once the Department of Homeland Security has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes, which the respondent can rebut with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court, and that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings.

(3) Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of a conviction will not be given effect to eliminate the finality of the conviction.

PANEL: BIA APPELLATE IMMIGRATION JUDGES KELLY, GREER, AND MALPHRUS

OPINION BY: JUDGE EDWARD F. KELLY

CONCURRING & DISSENTING OPINION: JUDGE GARRY D. MALPHRUS

KEY QUOTE FROM JUDGE KELLY’S MAJORITY OPINION:

In holding that the finality requirement continues to apply after the enactment of the IIRIRA, we emphasize that a conviction does not attain a sufficient degree of finality for immigration purposes until the right to direct appellate review on the merits of the conviction has been exhausted or waived.11 Consequently, absent proof of a waiver of appeal rights, a conviction does not achieve finality for immigration purposes until the time for filing an initial direct appeal has expired under the laws of the applicable jurisdiction. However, once the DHS has established that a respondent has a criminal conviction at the trial level and that the time for filing a direct appeal has passed, a presumption arises that the conviction is final for immigration purposes.

To rebut that presumption, a respondent must come forward with evidence that an appeal has been filed within the prescribed deadline, including any extensions or permissive filings granted by the appellate court.12 He or she must also present evidence that the appeal relates to the issue of guilt or innocence or concerns a substantive defect in the criminal proceedings. See Matter of Marquez Conde, 27 I&N Dec. at 255 (reaffirmingMatter of Pickering and reiterating that “convictions that have been vacated based on procedural and substantive defects in the underlying criminal proceeding [are] no longer valid for immigration purposes”); see also Matter of Rodriguez-Ruiz, 22 I&N Dec. at 1379–80 (giving effect to the alien’s vacated conviction where there was evidence by way of a court order that the conviction was vacated on the legal merits of the underlying criminal proceedings).

Appeals, including direct appeals, and collateral attacks that do not relate to the underlying merits of the conviction will not be given effect to eliminate the finality of the conviction. Such appeals include those that relate only to the alien’s sentence or that seek to reduce the charges, to ameliorate the conviction for rehabilitative purposes, or to alleviate immigration hardships, and any other appeals that do not challenge the merits of the conviction. See Matter of Roldan, 22 I&N Dec. 512, 521–24 (BIA 1999) (holding that under the statutory definition of a “conviction” in section 101(a)(48)(A) of the Act, no effect is to be given in immigration proceedings to a State action that purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a State rehabilitative statute); see also Matter of Pickering, 23 I&N Dec. at 624–25 (holding that a conviction set aside for reasons solely related to post-conviction events such as rehabilitation or immigration hardships will remain a conviction for immigration purposes).13

In this case, the respondent submitted evidence indicating that he filed a motion for an extension of the appeal deadline and that the motion was granted and the appeal was permitted by the New York appellate court.14Under these circumstances, we will remand this case to the Immigration Judge to consider the status of the pending appeal and its basis and to determine whether a continuance may be appropriate. See Matter of L-A-B-R-, 27 I&N Dec. 405 (A.G. 2018). In this regard, the respondent and the DHS should be given an opportunity to present any additional documentary and testimonial evidence they wish to offer in assisting the Immigration Judge.

Accordingly, the appeal from the Immigration Judge’s determination that the respondent is removable under section 237(a)(2)(A)(i) of the Act and from his denial of the respondent’s application for cancellation of removal under section 240A(a) of the Act will be dismissed. The respondent’s motion to remand based on new evidence will be granted.

[Text of Footnotes Omitted]

KEY QUOTE FROM JUDGE MALPHRUS’S CONCURRING & DISSENTING OPINION:

Based on the plain language of the Act and the clear weight of authority in the circuit courts, I would conclude that “the first definition of ‘conviction’ in § [101](a)(48)(A) requires only that the trial court enter a formal judgment of guilt, without any requirement that all direct appeals be exhausted or waived.” Planes, 652 F.3d at 996. The majority errs by invoking congressional silence to convert the otherwise plain language at issue here into statutory ambiguity, thereby giving us license to resolve the ambiguity in the manner that we think is best. “Regardless of our view on the wisdom or efficacy of Congress’s policy choices, we are not free to read in additional elements where the legislature has declined to include them.”Id. (citing Jones v. Bock, 549 U.S. 199, 216–17 (2007)).

I therefore respectfully dissent from the majority’s decision to remand this case for further proceedings. I would deny the respondent’s motion to remand because the new evidence does not indicate that his conviction has been overturned or vacated, and he remains ineligible for relief under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994). See Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).

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

This is important guidance from the BIA on a recurring question before U.S. Immigration Judges. Congrats to Judge Kelly on what, by my calculation, is his first published precedent opinion. And, he and Judge Anne Greer appear to have gotten it right. I don’t understand Judge Malphrus’s contention (in a part of his opinion not quoted above) that an individual who is actually removed based on a conviction later vacated on appeal hasn’t suffered any unfairness or irreparable harm.

PWS

08-30-18

BETTER LATE THAN NEVER? – After 9 Years, The BIA Finally Completes The Supreme’s Remand – Creates A “Limited Duress Defense” To Persecutor Bar, With Judge Malphrus Dissenting – Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Matter of NEGUSIE, 27 I&N Dec. 347 (BIA 2018)

Here’s the link:

3930

BIA HEADNOTE:

(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

BIA PANEL: APPELLATE IMMIGRATION JUDGES GRANT, GREER, MAPPHRUS

OPINION BY: Judge Edward R. Grant

CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus

KEY QUOTE FROM MAJORITY:

In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in

1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.

347

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2

We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.

KEY QUOTE FROM DISSENT:

The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who

ORDER: The applicant’s appeal is dismissed.

368

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.

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

Wow! Deferring to international interpretations and expert interpretations from the UNHCR that actually give an asylum applicant a very circumscribed break for actions he or she was forced to take. Very “Un-Boardy.” Could actually be “career threatening.” No wonder Judge Malphrus wanted to separate himself from any such rational and reasonable actions in the “Age of Sessions & Trump.”
9 years in the making, during which the DHS position changed several times, is a pretty good argument against “Chevron deference” (a/k/a “task avoidance by life-tenured Article III Judges”). What were Immigration Judges supposed to do during those 9 years?
Odds on whether or how long it will take “Gonzo” to intervene?

PWS

06-29-18

NEW BIA PRECEDENT SAYS DUI “IS A SIGNIFICANT ADVERSE CONSIDERATION IN BOND PROCEEDINGS” & FINDING OF “DANGEROUSNESS” CAN’T BE “OFFSET” BY CLOSE FAMILY & COMMUNITY TIES IN THE U.S. – MATTER OF SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

3914–DUI-Bond

Matter of SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

BIA HEADNOTE:

“(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.”

BIA PANEL: Appellate Immigration Judges MALPHRUS, MULLANE, and GREER

OPINION BY: Judge Garry D. Malphrus

KEY QUOTE:

“The issue in this case is whether the respondent is a danger to the community, and family and community ties generally do not mitigate an alien’s dangerousness. While there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity, this is not such a case. The respondent is an adult and has not shown how his family circumstances would mitigate his history of drinking and driving, except to explain that the most recent incident occurred on the anniversary of his mother’s death. The factors that the respondent claims mitigate or negate his dangerousness existed prior to his most recent arrest, and they did not deter his conduct.

We recognize that the Immigration Judge set a significant bond of $25,000, which he said “reflects the seriousness with which this court views the respondent’s repeated conduct.” However, an Immigration Judge should only set a monetary bond if the respondent first establishes that he is not a danger to the community. Matter of Urena, 25 I&N Dec. at 141.

This is not a case involving a single conviction for driving under the influence from 10 years ago. The respondent has multiple convictions for driving under the influence from that period and a recent arrest for the same conduct, which undermines his claim that he has been rehabilitated. Under these circumstances, we are unpersuaded that the respondent has met his burden to show that that he is not a danger to the community. See Matter of Fatahi, 26 I&N Dec. at 793−94. We therefore conclude that he is not eligible for bond. Accordingly, the DHS’s appeal will be sustained, the Immigration Judge’s decision will be vacated, and the respondent will be ordered detained without bond.”

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

As an Immigration Judge, I would have come out the same way the BIA did on this case. I would not have set bond.

For me, that the respondent was arrested again for DUI, ten years after his last of three previous DUI convictions, is telling. It shows me that the problem is a continuing one that has not been solved by passage of time or counseling, that the respondent still hasn’t “gotten the picture” about the dangers of DUI, and, significantly, that I couldn’t trust him not to DUI again or get in some other trouble while out on bond.

Less face it, stressful and traumatic events are a constant occurrence in life, particularly for someone already in Removal Proceedings. Therefore, I wouldn’t “buy” the respondent’s argument that the anniversary of his mother’s death was a “one-timer” that wouldn’t happen again.

What if he loses his job, what if a family member has a medical emergency, what if he has domestic problems — all of these fairly common traumas in our community. Why won’t he react the same way he did to the one-year anniversary of his mother’s death? Also, having a LPR wife, USC daughter, and a possible avenue for legal immigration didn’t seem to “motivate” him to say away from trouble. If he DUIs again while awaiting hearing, it’s on my hands. No thanks.

No, I’d rather have a full hearing on this respondent in detention where I know here won’t get into any more trouble in the meantime. If, after that hearing he qualifies for some relief and the equities outweigh the adverse factors, then so be it. I’d grant the case. But, I wouldn’t trust this guy out on the street on my bond during the several years it might take to get to a case such as this on the Arlington non-detained docket. “Getting to the bottom” of complicated cases like this is the purpose of the Individual Merits Hearings.

That said, if the pending DUI changes were dismissed or he were found “not guilty,” I’d be willing to “revisit” the bond.

So, what’s the danger with the BIA’s decision here. That it will be misread by the DHS or Immigration Judges for things the BIA didn’t hold:

The BIA did not say that bond could never be granted in a DUI case, even where there was a recent arrest;
The BIA also did not say that family and community support could never be a factor in assessing “dangerousness.” On the contrary, the BIA recognized that there could be situations where the influence of family or community members would be a proper factor for the Immigration Judge to consider in assessing dangerousness. For example, I found that having family members or co-workers who would drive the respondent to work and counseling as well as involvement in community or church-based alcohol avoidance groups were often strong predictors that individuals could avoid future alcohol-related problems. But, sadly, in this case, neither family nor past efforts at rehabilitation seem to have worked.

PWS

02-05-18

SPLIT BIA SPEAKS ON “WAVE THROUGH” – “PLAIN MEANING” APPLIES EXCEPT WHEN IT FAVORS THE RESPONDENT – JUDGE ROGER PAULEY, DISSENTING, APPEARS TO GET IT RIGHT! — MATTER OF CASTILLO ANGULO, 27 I&N DEC. 194 (BIA 2018)

3913

Matter of Castillo Angulo, 27 I&N Dec. 194 (BIA 2018)

BIA HEADNOTE:

“(1) In removal proceedings arising within the jurisdiction of the United States Courts of Appeals for the Fifth and Ninth Circuits, an alien who was “waved through” a port of entry has established an admission “in any status” within the meaning of section 240A(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a)(2) (2012). Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), and Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), followed in jurisdiction only.

(2) In removal proceedings arising outside the Fifth and Ninth Circuits, to establish continuous residence in the United States for 7 years after having been “admitted in any status” under section 240A(a)(2), an alien must prove that he or she possessed some form of lawful immigration status at the time of admission.”

BIA PANEL: Appellate Immigration Judges Greer, O’Connor, & Pauley

OPINION BY: Judge Blair O’Connor

CONCURRING/DISSENTING OPINION: Judge Roger A. Pauley

KEY QUOTE FROM DISSENT:

“I concur in the result, which the majority only reaches because it acknowledges that the decision of the United States Court of Appeals for the Ninth Circuit in Saldivar v. Sessions, 877 F.3d 812 (9th Cir. 2017), which holds that a wave through constitutes an “admission in any status” for purposes of section 240A(a)(2) of the Act, is binding on the Board since this case arises in that circuit. However, unlike the majority, I conclude that both the Ninth Circuit and the Fifth Circuit, whose similar holding in Tula-Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015), the Ninth Circuit followed, arrived at the correct result, even though, like the majority, I disagree with some aspects of those courts’ reasoning.

. . . .

I therefore respectfully dissent from the majority’s conclusion otherwise and would find that, in any circuit, an alien is eligible to seek cancellation of removal if he or she establishes an admission via a wave through, even if the alien cannot demonstrate the particular lawful status under which admission was authorized, and even if it is later found that he or she had no lawful status at that time.”

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

Gee, to me, “any status” means “any” status. But, hey, I’m just an old retired trial judge who in ancient time was Chair of the BIA. What would I know about “modern” concepts of statutory interpretation at the BIA?

For a quasi-judicial body that 1) often gets carried away with obtuse linguistic analysis, and 2) claims to see its role as maintaining nationwide consistency, it seems odd that the BIA has gone out of its way to a) rewrite the statute to its own liking, and 2) create a Circuit conflict where none previously existed.

The best way of understanding it is probably “doing what’s necessary to get to ‘no” for respondents not fortunate enough to be in the 9th or 5th Circuits.

My compliments to Judge Pauley for 1) having the backbone, and 2) caring enough to file a separate opinion that better follows the statutory language, produces a much better practical result, and, not surprisingly, is much closer to what the only Article III Courts to address this particular issue already have decided.

PWS

01-30-18

BIA SAYS CATEGORICAL APPROACH INAPPLICABLE TO VIOLATION OF A PROTECTIVE ORDER — MATTER OF OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

3909

Matter of OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

BIA HEADNOTE:

“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, MALPHRUS, GREER

OPINION BY: JUDGE PAULEY

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

COMMON THREAD: The Respondent loses, even though he prevailed before the Immigration Judge.

PWS

11-18-17

BIA SAYS “NO” TO “212(H)” WAIVER FOR AGFEL ADMTTED AS LPR AT “ANY” TIME – Matter of VELLA, 27 I&N Dec. 130 (BIA 2017)

3905

Matter of VELLA, 27 I&N Dec. 120 (BIA 2017)

BIA HEADNOTE:

“An alien “has previously been admitted to the United States as an alien lawfully admitted for permanent residence” within the meaning of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2012), if he or she was inspected, admitted, and physically entered the country as a lawful permanent resident at any time in the past, even if such admission was not the alien’s most recent acquisition of lawful permanent resident status.”

BIA PANEL: APPELLATE IMMIGRATION JUDGES PAULEY, WENDTLAND, and GREER

OPINION BY: JUDGE PAULEY

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

PWS

10-14-17

NEW PRECEDENT: Family Is A PSG, But Beware Of Nexus — Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) — Read My “Alternative Analysis!”

https://www.justice.gov/eoir/page/file/969456/download

BIA Headnote:

“(1) Whether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question. (2) To establish eligibility for asylum on the basis of membership in a particular social group composed of family members, an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.”

PANEL: BIA Appellate Immigration Judges Greer, Malphrus, Liebowitz

OPINION BY: Judge Anne Greer

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

I was the Immigration Judge in one of the leading “family as a PSG” cases cited by the BIA, the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117, 124−25 (4th Cir. 2011). In Crespin, I had granted asylum to a Salvadoran family comprising a PSG of “family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses.”

The BIA reversed me on appeal, and the respondents sought judicial review in the Fourth Circuit. That Court (much to my delight and satisfaction, I must admit) reversed the BIA and agreed with me that the respondent’s PSG was valid.

Following that, family based PSGs came up frequently in the Arlington Immigration Court. However, in a number of cases, as in L-E-A-, in their haste to posit a valid family-based PSG, attorneys neglected to prove the nexus between the PSG and the harm, or, even more surprisingly, failed to show that the respondent was even a member of the proposed PSG. Details are important!

Nevertheless, since family-based PSG cases are often “grantable,” I can’t help wondering why the BIA selected a denial for the precedent, rather than putting forth a positive example of how family-based PSGs can be a legitimate means of granting protection under the law and thereby saving lives?

In L-E-A-, the PSG was the respondent’s membership in his father’s family. Gangs threatened him with harm because they wanted him to sell drugs in his father’s store, and he refused. The respondent’s membership in the family is immutable. Additionally, there is no reason to believe that the gangs would have threatened the respondent but for his membership in a family which ran a store where they wanted to sell drugs.

Consequently, the IJ and the BIA panel could just have easily found that “family membership” was at least one central reason for the threatened harm. To me, this seems like a better analysis. I find the panel’s observation that anyone who owned the store would have been threatened irrelevant. So what?

PWS

05-25-17

Dan Kowalski reports for LexisNexis:

🇺🇸 Due Process Forever!

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BIA HEADNOTE:

🇺🇸 Due Process Forever!

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For those interested in what the law actually says (clearly an “endangered minority” @ Garland’s BIA), here’s key language from Judge Greer’s dissent:

🇺🇸Due Process Forever!

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