"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:
“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”
Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”
The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.
For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.
How many inexperienced immigration judges would know that?
This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.
What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.
. . . .
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You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”
Here’s an actual anecdote that I received recently from a Courtside reader:
I had a merits hearing . . . with a new IJ with no immigration background at all. It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions. So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved. And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is. [He/She] didn’t say a word; we ran the hearing. The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.
What if it had been a contested hearing?
Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!
I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.
Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.
The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.
To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.
The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.
It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.
With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”
Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not! Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!
Hernandez-Chacon v. Barr, 2d Cir., 01-23-20, published
PANEL: WESLEY, CHIN, and BIANCO, Circuit Judges
OPINION BY: Judge Chin
KEY QUOTE:
2. Political Opinion
To demonstrate that persecution, or a well‐founded fear of
persecution, is on account of an applicantʹs political opinion, the applicant must show that the persecution ʺarises from his or her own political opinion.ʺ Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Thus, the applicant must ʺshow, through direct or circumstantial evidence, that the persecutorʹs motive to persecute arises from the applicant’s political belief.ʺ Id. (emphasis added). The
See Vega‐Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016) (ʺVega‐Ayalaʹs general reference to the prevalence of domestic violence in El Salvador does little to explain how ʹSalvadoran women in intimate relationships with partners who view them as propertyʹ are meaningfully distinguished from others within Salvadoran society.ʺ). But see Alvarez Lagos v. Barr, 927 F.3d 236, 252‐55 (4th Cir. 2019) (remanding for agency to consider whether ʺgroup of unmarried mothers living under the control of gangs in Honduras qualifies as a ʹparticular social group,ʹʺ where record contained evidence that gang in question did ʺindeed target victims on the basis of their membership in a socially distinct group of unmarried mothersʺ).
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persecution may also be on account of an opinion imputed to the applicant by the persecutor, regardless of whether or not this imputation is accurate. See Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007) (ʺ[A]n imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground for political persecution.ʺ (internal quotation mark omitted) (quoting Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005)). The BIA has explained that persecution based on political opinion is established when there is ʺdirect or circumstantial evidence from which it is reasonable to believe that those who harmed the applicant were in part motivated by an assumption that [her] political views were antithetical to those of the government.ʺ Matter of S‐P‐, 21 I. & N. Dec. 486, 494 (B.I.A. 1996); see also Vumi v. Gonzalez, 502 F.3d 150, 157 (2d Cir. 2007).
Here, Hernandez‐Chacon contends that if she is returned to El Salvador she will be persecuted by gang members because of her political opinion ‐‐ her opposition to the male‐dominated social norms in El Salvador and her taking a stance against a culture that perpetuates female subordination and the brutal treatment of women. She argues that when she refused to submit to the violent advances of the gang members, she was taking a stance against a culture of male‐domination and her resistance was therefore a political act.
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There is ample evidence in the record to support her claim.6 Gangs control much of El Salvador, including the neighborhood in which Hernandez‐ Chacon lived. The law enforcement systems that would normally protect women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when the first gang member tried to rape her, she resisted ʺbecause [she had] every right to.ʺ Id. at 193. Three days later, when the same man and two other gang members attacked her, she again resisted, to the point where they beat her until she lost consciousness. She argues that the men targeted her for the second attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an MS gang member and they believed she needed to be punished for her act of defiance. Her now husband likewise stated in his affidavit that Hernandez‐ Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed to fight them off twice, but that just makes them angrier and if she shows her face again, I think they could kill her.ʺ Id. at 269.
At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result.
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6
While the IJʹs decision was thorough and thoughtful overall, her
analysis of Hernandez‐Chaconʹs political opinion claim was cursory, consisting of the following:
[Hernandez‐Chacon] has also claimed that she had a political opinion. I cannot conclude that her decision to resist the advances of an individual is sufficient to establish that she has articulated a political opinion. In trying to analyze a political opinion claim, the Court has to consider the circumstances under which a respondent not only possessed a political opinion, but the way in which the circumstances under which she articulated that political opinion. In this case she did not advance a political opinion. I find that she simply chose not to be the victim and chose to resist being a victim of a criminal act.
Id. at 153‐54.
The BIA dismissed Hernandez‐Chaconʹs political opinion argument
in a single sentence, in a footnote, rejecting the claim ʺfor the reasons stated in the [IJʹs] decision.ʺ Id. at 5 n.3. The analysis of both the IJ and the BIA was inadequate. See Yueqing Zhang, 426 F.3d at 548‐49 (granting petition for review and remanding case to agency where IJ failed to undertake the ʺcomplex and contextual factual inquiryʺ necessary to determine if persecution was on account of political opinion). We have three areas of concern.
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First, the agency concluded that Hernandez‐Chacon ʺdid not advance a political opinion.ʺ Cert. Adm. Record at 154. But this Circuit has held that the analysis of what constitutes political expression for these purposes ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum applicantʹs activities in relation to the political context in which the dispute took place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang, 426 F.3d at 548). We have held, for example, that resisting corruption and abuse of power ‐‐ including non‐governmental abuse of power ‐‐ can be an expression of political opinion. See Castro, 597 F.3d at 100 (noting that ʺopposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecutionʺ); Delgado, 508 F.3d at 706 (holding that refusing to give technical assistance to the FARC in Columbia can be expression of political opinion); Yueqing Zhang, 426 F.3d at 542, 546‐48 (holding that retaliation for opposing corruption of local officials can constitute persecution on account of political opinion); Osorio v. INS, 18 F.3d 1017, 1029‐31 (2d Cir. 1994) (holding that ʺunion activities [can] imply a political opinion,ʺ and not merely economic position). The Fourth Circuit has recently recognized that the refusal to acquiesce to gang violence can constitute
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an expression of political opinion. See Alvarez Lagos, 927 F.3d at 254‐55 (where record contained evidence that gang in question would view refusal to comply with demand for sex as ʺpolitical opposition,ʺ refusal to acquiesce to gang violence and flight to United States could demonstrate imputed anti‐gang political opinion that constitutes protected ground for asylum). Here, the agency did not adequately consider whether Hernandez‐Chaconʹs refusal to acquiesce was ‐‐ or could be seen as ‐‐ an expression of political opinion, given the political context of gang violence and the treatment of women in El Salvador.
Second, the IJ concluded that Hernandez‐Chacon ʺsimply chose to not be a victim.ʺ Cert. Adm. Rec. at 154. But even if Hernandez‐Chacon was motivated in part by her desire not to be a crime victim, her claims do not necessarily fail, as her political opinion need not be her only motivation. See
8 U.S.C. § 1158(b)(1)(B)(i) (ʺThe applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.ʺ (emphasis added)); Osorio, 18 F.3d at 1028 (ʺThe plain meaning of the phrase ʹpersecution on account of the victimʹs political opinion,ʹ does not mean persecution solely on account of the victimʹs political opinion.ʺ); see also Vumi, 502 F.3d at 158 (remanding to
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agency where BIA failed to engage in mixed‐motive analysis). While Hernandez‐Chacon surely did not want to be a crime victim, she was also taking a stand; as she testified, she had ʺevery rightʺ to resist. As we have held in a different context, ʺopposition to endemic corruption or extortion . . . may have a political dimension when it transcends mere self‐protection and represents a challenge to the legitimacy or authority of the ruling regime.ʺ Yueqing Zhang, 426 F.3d at 547‐48. Here, Hernandez‐Chaconʹs resistance arguably took on a political dimension by transcending mere self‐protection to also constitute a challenge to the authority of the MS gang.
Third, the agency did not consider whether the gang members imputed a political opinion to Hernandez‐Chacon. This Circuit has held that ʺan imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the Immigration and Nationality Act.ʺ Vumi, 502 F.3d at 156 (citations omitted); see Chun Gao, 424 F.3d at 129 (in case of imputed political opinion, question is ʺwhether authorities would have perceived [petitioner] as [a practitioner of Falun Gong] or as a supporter of the movement because of his activitiesʺ). Here, the IJ erred in her political opinion analysis by only considering whether Hernandez‐
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Chacon ʺadvance[d]ʺ a political opinion. Cert. Adm. Rec. at 154. The IJ failed to consider whether the attackers imputed an anti‐patriarchy political opinion to her when she resisted their sexual advances, and whether that imputed opinion was a central reason for their decision to target her. See Castro, 597 F.3d at 106 (holding that to properly evaluate a claim of political opinion, IJ must give ʺcareful consideration of the broader political contextʺ). In fact, as the gang members attacked her the second time, one of them told her that because she would not ʺdo this with him in a good way, it was going to happen in a bad way,ʺ Cert. Adm. Rec. at 186, which suggests that the gang members wanted to punish her because they believed she was taking a stand against the pervasive norm of sexual subordination.
We note that the Fourth Circuit recently granted a petition for review in a case involving a woman in Honduras who was threatened by a gang in similar circumstances. The Fourth Circuit concluded that if, as the petitioner alleged, the gang had imputed to her ʺan anti‐gang political opinion, then that imputed opinion would be a central reason for likely persecution if she were returned to Honduras.ʺ See Alvarez Lagos, 927 F.3d at 251. The court held that the IJ erred by not considering the imputed political opinion claim, that is,
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whether the gang believed that the petitioner held an anti‐gang political opinion. Id. at 254. Likewise, here, the agency did not adequately consider Hernandez‐ Chaconʹs imputed political opinion claim.
Accordingly, we hold that the agency erred in failing to adequately consider Hernandez‐Chaconʹs claim of persecution or fear of persecution based on actual or imputed political opinion.
CONCLUSION
For the reasons set forth above, the petition is GRANTED with respect to Hernandez‐Chaconʹs political opinion claim and the case is REMANDED to the BIA for proceedings consistent with this opinion.
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Heather Axford Senior Staff Attorney Central American Legal Assistance Brooklyn, NY
To state the obvious:
Many more women from El Salvador should be getting mandatory relief under CAT based on “torture with government acquiescence,” regardless of “nexus” which is not a requirement in CAT cases. Indeed, in a properly functioning and fair system these could probably be “blanket grants” provided the accounts are credible and documented (or they could be the basis for a TPS program for women fleeing the Northern Triangle, thus reducing the burden on the Immigraton Courts);
Compare the accurate account of the horrible conditions facing women inEl Salvador set forth by the Immigration Judge and the Second Circuit in this case with the fraudulent and largely fictionalized account presented by unethical Attorney General Sessions in his Matter of A-B– atrocity. Here are some excerpts from Judge Chin’s opinion which shows the real horrors that women face in El Salvador as opposed to he largely fictionalized version fabricated by Sessions:
In her decision, the IJ reviewed relevant country conditions in El Salvador, including the prevalence of violence against women and ʺthe dreadful
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practice of El Salvadorʹs justice system to favor aggressors and assassins and to punish victims of gender violence.ʺ Id. at 147. The IJ relied on the declaration of Aracely Bautista Bayona, a lawyer and human rights specialist, who described ʺthe plight of women in El Salvador,ʺ id.,3 and recounted the following:
One of ʺthe most entrenched characteristics of Salvadoran society is machismo, a system of patriarchal gender biases which subject women to the will of men. Salvadorans are taught from early childhood that women are subordinate.ʺ Id. Salvadoran society ʺaccepts and tolerates men who violently punish women for violating these gender rules or disobeying male relatives.ʺ Id. Indeed, in El Salvador, ʺfemicide remain[s] widespread.ʺ Id. at 148; see also U.S. Depʹt of State, Bureau of Democracy, H. R. and Labor, Country Reports on Human Rights Practices for 2015 for El Salvador (2015) (ʺCountry Reportʺ). Gangs in El Salvador view women as the property of men, and gang violence against women outside the gang ʺmanifest[s] itself in a brutality that reflects these extreme machismo attitudes.ʺ Cert. Adm. Rec. at 148.
3
The IJ noted that Bayona had ʺfor more than two and a half decades worked and advocated for the rights of women, children, adolescents and youth in the migrant population in El Salvador.ʺ Cert. Adm. Rec. at 138.
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ʺEl Salvador has the highest rate in the world [of femicide] with an average of 12 murders for every 100,000 women.ʺ Id. at 148‐49. As an article on El Salvadorʹs gangs concluded, ʺin a country terrorized by gangsters, it is left to the dead to break the silence on sexual violence . . . , to the bodies of dead women and girls pulled from clandestine graves, raped, battered and sometimes cut to pieces. They attest to the sadistic abuse committed by members of street gangs.ʺ Id. at 149 (quoting El Salvadorʹs Gangs Target Women and Girls, Associated Press, Nov. 6, 2014).
As the State Department has found, rape, sexual crimes, and violence against women are significantly underreported because of societal and cultural pressures on victims and fear of reprisal, and the laws against rape ʺare not effectively enforced.ʺ Country Report at 7. Police corruption in El Salvador is well‐documented, including involvement in extra‐judicial killings and human rights abuses. See id. at 1. The judicial system is also corrupt. While the law provides criminal penalties for official corruption, ʺthe government d[oes] not implement the law effectively, and . . . officials, particularly in the judicial system, often engage[] in corrupt practices with impunity.ʺ Id. at 6. ʺLike Salvadoran society as a whole, law enforcement officials, prosecutors, and judges
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discriminate against women, reduce the priority of womenʹs claims, and otherwise prevent women from accessing legal protections and justice. This results in impunity for aggressors, which reinforces aggressorsʹ perception that they can inflict violence without interference or reprisal.ʺ Cert. Adm. Rec. at 300‐ 01.
The IJ observed that Hernandez‐Chaconʹs experiences were ʺgenerally consistent with the background materials she has submitted in regards to pervasive brutal attacks by El Salvadoran gangs.ʺ Id. at 149‐50.
. . . .
There is ample evidence in the record to support her claim [of political; persecution].6 Gangs control much of El Salvador, including the neighborhood in which Hernandez‐ Chacon lived. The law enforcement systems that would normally protect women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when the first gang member tried to rape her, she resisted ʺbecause [she had] every right to.ʺ Id. at 193. Three days later, when the same man and two other gang members attacked her, she again resisted, to the point where they beat her until she lost consciousness. She argues that the men targeted her for the second attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an MS gang member and they believed she needed to be punished for her act of defiance. Her now husband likewise stated in his affidavit that Hernandez‐ Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed to fight them off twice, but that just makes them angrier and if she shows her face again, I think they could kill her.ʺ Id. at 269.
At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result.
Here are some additional thoughts about the larger problem exposed by this case:
WHY “NIBBLING AROUND THE EDGES” BY ARTICLE IIIs WON’T SOLVE THE CONSTITUTIONAL & HUMAN RIGHTS DISASTERS IN OUR IMMIGRATION COURTS NOR WILL IT RELIEVE THE ARTICLE IIIs FROM RESPONSIBILITY
By Paul Wickham Schmidt
Exclusive for Courtside
Jan. 29, 2020
The Second Circuit’s decision in Hernández-Chacon v. Barr exposes deep fundamental constitutional flaws in our Immigration Court system. While the instructive language on how many women resisting gangs could and should be qualifying for asylum (and many more should be getting relief under the CAT) is refreshing, the remedy, a remand to a failed and constitutionally defective system, is woefully inadequate.
Indeed, just recently, a fellow Circuit, the Seventh, ripped the BIA for contemptuously disobeying a direct court order. Maybe the Board will pay attention to the Second Circuit’s directive in this case, maybe they won’t. Maybe they will think of a new reason to deny as all too often happens on Circuit Court remands these days.
I actually have no doubt that the Immigration Judge involved in this case, who recognized the dire situation of women in El Salvador, and grated CAT withholding, will “do the right thing” and grant asylum with the benefit of Judge Chin’s opinion. But, today’s BIA has a number of dedicated “asylum deniers” in its ranks; individuals who as Immigration Judges denied approaching 100% of the asylum claims coming before them, some of them notorious with the private bar for particular hostility to claims from women from the Northern Triangle.
That appeared to be their “selling point” for AG Billy Barr in elevating them to the BIA: Create the same reliable “Asylum Free Zone” at the BIA that has been created by these judges and others like them in other parts of the country. It’s a great way to discourage bona fide asylum claims, which. appears to be the key to the “Barr plan.”
One might ask what Billy Barr is doing running something purporting to be a “court system” in the first place. Outrageous on its face! The short answer: Article III complicity and dereliction of Constitutional duty! But, I’ll get to that later.
What if a panel of “Three Deniers” gets the case on remand? Will Ms Hernandez-Chacon finally get justice? Or, will she and her pro bono lawyer Heather Axford once again have to appeal to the Second Circuit just to force the BIA to finally “get the basics right?”
Individual case remands, even published ones, fail to address the serious underlying issues plaguing our Immigration Courts and threatening the very foundations of our justice system:1) lack of fundamental knowledge of asylum law on the part of the BIA and the Immigration Courts; 2) an unconstitutional system run, and sometimes staffed, by biased, unethical anti-asylum zealots who consistently send out false or misleading messages; and 3) the inherent unfairness in a system that denies adequate access to counsel and permits the use of coercive detention and outright statutory and constitutional abrogation to consistently harm asylum seekers and others seeking justice.
I. Glaring Lack Of Asylum Legal Competence & Expertise
The Second Circuit noted three major errors in the BIA’s analysis: 1) failing to recognize that the respondent was advancing a “political persecution” argument; 2) misuseof the concept of “victimization” as a pretext for denying a potentially valid asylum claim; and 3) failure to recognize and address the respondent’s “imputed political opinion.”
None of these mistakes is new. Advocates would tell you that the BIA and Immigration Judges make them all the time.
Nor is getting these things right “rocket science.” Really, all it would take is a body knowledgeable in and committed to the fair and generous interpretation of asylum law intended by the 1951 Convention from which our law stems and reinforced by the Supreme Court in INS v. Cardoza-Fonseca in 1987. The correct view has also been reflected in the Second Circuit’s own published jurisprudence, which the Board again ignored in this case.
For example, the Second Circuit instructed the BIA “that that the analysis of what constitutes political expression for these purposes ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum applicantʹs activities in relation to the political context in which the dispute took place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang, 426 F.3d at 548).”
This is hardly a new concept. For example, Yueqing Zhang was published in 2005, a decade and a half ago, and reinforced by the Second Circuit on several occasions since then. Yet, both the BIA and Immigration Judges continue to ignore it when it suits their purposes. So, why would the Second Circuit believe that the Immigration Courts had suddenly “gotten religion” and would now pay attention to their admonitions on asylum law?
As pointed out by the Second Circuit, the “mere victim” rationale, often insidiously used by the BIA and some Immigration Judges as an “easy handle” to summarily deny asylum claims, is a disingenuous hoax. All successful asylum applicants are “victims” even if not all “victims” necessarily qualify for asylum. Refugees, entitled to asylum, are a very large subset of “victims.” In this and many other cases, the BIA totally “blew by” the well established, statutorily required “mixed motive” analysis that is “Asylum Law 101.”
Also, the BIA’s failure to recognize and consider the well-established doctrine of “imputed political opinion” is inexcusable in a supposedly “expert” tribunal.
The “Article III blowoff” documented in this case is virtually inevitable in a system where the “judges” at all levels, are subject to arbitrary, unethical, and unconstitutional “performance quotas” and receive “performance evaluations” influenced by biased political officials with an interest in the outcome of cases. Indeed, former Attorney Session essentially told “his” judges that it’s “all about production.” Fairness, Due Process, and scholarship that individuals are entitled to before a tribunal simply don’t enter into the equation.
The Immigration Judge in this case has an outstanding reputation and actually did a careful job in many respects. A competent appellate tribunal would have caught the judge’s mistake on political opinion and remanded for further consideration. The case never should have reached the Second Circuit (think efficiency and why the Immigraton Courts have built unmanageable backlogs).
Moreover, an error like this by a competent and careful judge indicates the need for further positive guidance to judges on recognizing valid asylum claims. Why hasn’t the BIA published precedents reinforcing the very points made by Judge Chin in his Hernández-Chacon opinion and showing how they apply to granting asylum in real life, recurring situations, particularly those involving women from the Northern Triangle?
Instead, and in direct contradiction of the law and controlling jurisprudence, Attorney General Sessions in Matter of A-B- gave an unethical, misogynistic, and intentionally factually distorted suggestion that most women’s claims arising from persecution at the hands of gangs and abusive partners in the Northern Triangle should be “denied” on any available ground, whether warranted or not. Some Immigration Judges have correctly viewed this as “mere dicta.” But, others have viewed it as a potentially “career enhancing tip” about how “the big boss” wanted asylum seekers from the Northern Triangle treated: like dirt, or worse.
Dehumanization has always been a “key part of the plan” for Sessions, his acolyte Stephen Miller, and others of like mind in this Administration. Why have the Article III courts enabled, and in some cases approved, this neo-fascist approach to the law and humanity? That’s a great question to which the answer is not obvious. What’s the purpose of life tenure in office if it doesn’t promote courage to stand up for the rights of vulnerable individuals against invidious intentional Government tyranny ands systemic abuses?
By ignoring the “pattern or practice” of failure by the BIA and the Immigration Courts to institutionalize the Second Circuit’s many years of prior commands for fair asylum adjudication, while ignoring the glaring, intentional barriers to fair judicial performance put in place by the political controllers of this system, the Second Circuit and the other Article IIIs simply advertise their own fecklessness and also, to some extent, intellectual dishonesty.
II. Institutional Bias Against Asylum Seekers
Both Attorney General Barr and his predecessor Jeff Sessions are biased “cheerleaders” for DHS enforcement; they are totally unqualified to act in a quasi-judicial capacity or to supervise quasi-judicial adjudicators. Their participation in and interference with fair and impartial decision making is a clear violation of Due Process and a mockery of judicial and legal ethics.
A private lawyer who so blatantly “thumbed his or her nose” at prohibitions on conflicts of interest undoubtedly would face discipline or disbarment. Yet, the Second Circuit and their fellow Circuits, as well as the Supremes, have failed to act on these obvious ethical improprieties by the DOJ and its leadership that have a direct negative impact on constitutional Due Process.
Under Trump, Attorneys General have issued number of anti-asylum “precedents” reversing prior law and practice. New Immigration Judges are selected by the Attorney General almost exclusively from the ranks of prosecutors and other Government attorneys. Those with private sector experience or experience representing migrants and asylum seekers are systematically excluded from the judiciary. How is this a fair system?
The Administration and DOJ spew forth an endless stream of anti-immigrant and anti-asylum, propaganda. They also use “performance work plans”and “numerical quotas” to drum into “judges” their responsibility to follow and implement “agency policies” rather than fairly and impartially consider the cases coming before them. This message certainly does not encourage fair and impartial adjudication. The “default message” clearly is “deny, deny, deny.”
One very fundamental problem resulting from this institutional bias against asylum seekers: The BIA’s (and now AG’s) “precedents” providing guidance to Immigration Judges fail to set forth rules and circumstances for granting asylum in meritorious cases. The need for such rules should be obvious from the Supreme Court’s 1987 decision in INS v. Cardoza-Fonseca (directing the BIA to implement a generous interpretation of “well-founded fear” standard for asylum) and the BIA’s initial response to Cardoza in Matter of Mogharrabi (directing that asylum could be granted even where the objective chance of persecution is “significantly less than . . . probable”). Most, if not all, Circuit Courts of Appeals followed suit with a series of decisions criticizing the BIA for an “overly restrictive reading” of asylum law, not true to Cardoza and their own precedent in Mogharrabi, in many unpublished cases.
But, quite intentionally in my view, the BIA and Attorney General have now strayed far from these judicial admonitions and abandoned the BIA’s own precedent in Mogharrabi. Instead, today’s administrative “precedents” read like a “how to course” in denying asylum claims. Indeed, from examining these one-sided precedents (no individual has prevailed in an “Attorney General precedent” under this Administration — DHS wins every time), one comes away with the pronounced view that asylum could almost never be granted by an Immigration Judge, no matter how great the harm or compelling the circumstances.
I once participated in an academic conference attended by Circuit Court of Appeals Judges from across the country. Most were astounded to learn how many asylum cases were actually granted by Immigration Judges. From their review of unfailingly negative BIA decisions (skewed, of course, by the Government’s inability to appeal from the BIA, another problem with the current system) they had the impression that asylum was denied nearly 100% of the time (which actually does happen in some Immigration Courts these days, as noted above).
The only way to describe this is “gross institutional corruption” starting at the top with the DOJ and the Attorney General. Even now, under these intentionally restrictive rules, more than 30% of asylum cases are granted at merits hearings before Immigration Judges, although with the lack of effective positive guidance from the BIA those rates are highly inconsistent among judges.
Within the last decade, the majority of cases were actually being granted as the system was slowly progressing toward toward realizing the “spirit of Cardoza and Mogharrabi” However, that progress intentionally was reversed by improper political pressure to deny more Central American cases (a message that actually began under the last Administration and has been “put on steroids” by the current Administration).
III. An Inherently Unfair System
Notwithstanding the need for careful record building and detailed fact-finding as described by the Second Circuit, individuals are not entitled to appointed counsel in Immigraton Court. Through use of intentionally coercive and inhumane detention and “gimmicks” like “Remain in Mexico” the Administration strives to deny fair access to pro bono counsel and to prevent individuals from preparing and documenting complex cases.
The Article IIIs recognize the complexity of asylum cases, yet fail to “connect the dots” with the intentional systemic impediments to fair preparation and presentation thrown up by the government. The “hostile environment” for aliens and their counsel intentionally created in Immigration Court by the DOJ also works to discourage individuals from pursuing claims and getting representation.
The whole system is essentially a judicially-enabled farce. Does the Second Circuit, or anybody else, seriously think that Ms. Hernandez-Chacon would have gotten this far without the time-consuming and outstanding assistance of her pro bono lawyer, Heather Axford, of Central American Legal Assistance in Brooklyn, NY? She’s one of the top asylum litigators in the nation who used to appear before me in Arlington at the beginning of her amazing career!
How many of those “detained in the middle of nowhere,” told to “Remain in Mexico,” or, worse yet, orbited to “failed states” by Border Agents under bogus “Safe Third Country Agreements” have access to someone like Heather Axford? (It doesn’t take much imagination after reading the truth about how women are treated in El Salvador to see the outright fraud committed by the Trump Administration in entering into bogus “Safe Third Country” agreements with El Salvador and other dangerous, failing states). About none! How can the courts allow a system to keep out grinding out systemic abuse to vulnerable human beings without insisting that the essentials for fair hearings be put in place and maintained?
IV.Conclusion
When obvious legal, analytical, and institutional problems remain unfixed more than a decade after they surfaced, the system is broken! The current Immigration Court system is patently unfair and unconstitutional. By ignoring the glaring systemic unfairness, Article III Courts become part of the problem and subject themselves to charges of fecklessness and dereliction of duty.
It’s long past time for theArticle IIIs to take decisive actions to end the national disgrace and humanitarian disaster unfolding in our Immigration Courts daily. History is watching your actions and will be your judge!
Another one bites the dust
Another one bites the dust
And another one gone, and another one gone
Another one bites the dust…
—“Another One Bites The Dust” by Queen
ANOTHER ONE BITES THE DUST: BIA Appellate Immigration Judge Linda Wendtland To Retire
By Paul Wickham Schmidt
Exclusive for Courtside
Alexandria, VA, Jan. 16, 2019. Appellate Immigration Judge Linda Wendtland will soon retire from the BIA. Acting Chair Garry D. Malphrus made the announcement to judges and staff.
Judge Wendtland is the fourth veteran appellate jurist to leave the BIA recently, following the retirements of Judges Patricia Cole, John Guendelsberger, and Molly Kendall Clark at the end of 2019. Additionally, former BIA Chair Judge David Neal retired suddenly in October.
Thus, the Trump regime’s aggressive effort to “dumb down” and weaponize the U.S. Immigration Courts as a means of depriving migrants of any semblance of due process of law appears to be taking its toll on our nation’s highest administrative immigration tribunal. The BIA now has six vacancies among its 21 authorized judges, including the Chair. Based on recent hiring, we can expect only candidates with established pro-enforcement records and inordinately high rates of asylum denial to be appointed to BIA judgeships by Attorney General Barr.
Judge Wendtland was appointed in 2008 by Attorney General Mukasey, following a long career as a senior litigator in the Office of Immigration Litigation in the DOJ’s Civil Division. She is generally regarded as scholarly, analytical, and occasionally willing to take positions favoring migrants rather than DHS in appellate decisions, notwithstanding her government litigation background. The qualities of scholarship, impartial analysis, and decisional independence appear to have fallen “out of vogue” in the selection of Immigration Judges at both the trial and appellate levels in the Trump regime’s DOJ.
Indeed, and shockingly to those of us in the Round Table of Former Immigration Judges, former Attorney General Jeff Sessions publicly emphasized that Immigration Judges should be “partners” with DHS enforcement while he spread false, unsupported narratives about widespread asylum fraud and “dirty” immigration lawyers. Many found these biased statements of expected “judicial subservience” to a highly politicized and controversial immigration enforcement agenda to be astounding, particularly since most of the “fraud” that has come to light recently relates to the regime’s inhumane treatment of asylum seekers and denial of their due process and legal rights to apply for protection in the United States. All of the actions to date by Attorney General Barr show that he shares the same biased, enforcement skewed view of the Immigration Courts as mere appendages of DHS enforcement as did his predecessor.
Judge Wendtland’s departure will be yet another blow to the few remnants of EOIR’s once proud, but now forgotten and despised, “vision” of “through teamwork and innovation, be the world’s best administrative tribunals guaranteeing fairness and due process for all.” Sadly, that’s now become a cruel joke for many endangered asylum seekers being rejected at our Southern Border without any semblance of fairness or due process whatsoever.
Thanks for your service, Judge Wendtland, and best wishes in the future.
Immigration judges decided a record number of asylum cases in FY 2019. This past year judges decided 67,406 asylum cases, nearly two-and-a-half times the number from five years ago when judges decided 19,779 asylum cases. The number of immigrants who have been granted asylum more than doubled from 9,684 in FY 2014 to 19,831 in FY 2019. However, the number of immigrants who have been denied asylum or other relief grew even faster from 9,716 immigrants to 46,735 over the same time period.
More Chinese nationals were granted asylum than any other nationality. Next came El Salvadorian nationals, followed by asylum seekers from India.
Six-nine percent of asylum seekers were denied asylum or other relief in 2019. Nevertheless, 99 out of 100 attended all their court hearings.
Access to an attorney impacted the asylum outcomes. Only 16 percent of unrepresented asylum applicants received asylum or other forms of deportation relief. In contrast, twice the proportion (33%) of asylum applicants with an attorney received asylum or other relief.
Overall, asylum applicants waited on average 1,030 days – or nearly three years – for their cases to be decided. But many asylum applicants waited even longer: a quarter of applicants waited 1,421 days, or nearly four years, for their asylum decision.
To examine these results in greater detail by nationality and court location, TRAC’s free asylum app is now updated with data through the end of November 2019 at:
Additional free web query tools which track Immigration Court proceedings have also been updated through November 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563 trac@syr.edu http://trac.syr.edu
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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SOME INTERESTING TAKEAWAYS:
Contrary to regime false narratives, non-detained asylum seekers continued to show up for their hearings approximately 99% of the time.
Contrary to recent EOIR claims, representation of asylum seekers continued to make a huge difference: twice as many represented asylum seekers received relief.
Nearly 20,000 individuals were granted asylum in FY 2019, twice as many as in FY 2014, although the number of cases denied grew even faster by 4.5x, to 46,735.
The three “Northern Triangle” countries, El Salvador, Guatemala, and Honduras ranked among the top five in number of asylum claims granted.
Session’s biased decision in Matter of A-B- appears to have been responsible for artificially depressing asylum grant rates starting in June 2018.
Even with extraordinary efforts by the regime to “game” the asylum system against applicants, 31% of the applicants still were successful in gaining relief in FY 2019.
The New Due Process Army continues to “take the battle” to the regime: despite regime efforts to inhibit and discourage representation, nearly 85% of asylum applicants were represented in FY year 2019, a slight increase over the previous FY.
Unrepresented asylum applicants are “railroaded” though the system at a much higher rate than represented applicants: nearly half of the unrepresented asylum cases that started in 2019 were completed, as opposed to approximately 10% of the represented ones.
Non-detained, represented asylum applicants wait an average of three years for a merits hearing in Immigration Court.
The number of asylum cases decided by Immigration Judges has risen 250% over the past five fiscal years.
Asylum cases were 22.6% of the Immigration Court final decisions in FY 2019, as opposed to 10.7% in FY 2014.
Deciding more asylum cases while intentionally “stacking” the system against asylum seekers has not stopped the mushrooming Immigration Court backlogs.
“SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were Their Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?
Robbie Whelan Mexico City Correspondent Wall Street Journal
Violence Plagues Migrants Under U.S. ‘Remain in Mexico’ Program
Migrants seeking shelter in the U.S. under Trump administration policy report rising numbers of kidnappings by criminal groups
NUEVO LAREDO, Mexico—Every morning, Lorenzo Ortíz, a Baptist pastor who lives in Texas, drives a 12-seat passenger van packed with food and blankets across the border to pick up migrants who have been dropped off in Mexico and ferry them to shelters.
His mission is to keep the migrants safe from organized crime groups that prowl the streets of this violent Mexican border town. Since the Trump administration began implementing its Migrant Protection Protocols program at the start of 2019—widely known as Remain in Mexico—some 54,000 migrants, mostly from Central America, have been sent back to northern Mexico to wait while their asylum claims are processed. Mexico’s government is helping implement it.
But in cities like Nuevo Laredo, migrants are sitting ducks. Over the years, thousands have reported being threatened, extorted or kidnapped by criminal groups, who prey upon asylum seekers at bus stations and other public spaces.
“Over the last year, it’s gotten really bad,” Mr. Ortíz said.
A typical scheme involves kidnapping migrants and holding them until a relative in the U.S. wires money, typically thousands of dollars, in ransom money. Gangs have also attacked shelters and even some Mexican clergy members who help migrants.
There have been 636 reported cases of kidnapping, rape, torture and other violent crimes against migrants returned to Mexico under Remain in Mexico, according to Human Rights First, which interviews victims in border cities and advocates for migrants’ due process rights. At least 138 of these incidents involved kidnappings of children.
Many more cases of extortion and violence go unreported for fear of retribution. As more migrants are returned to dangerous areas such as Nuevo Laredo under Remain in Mexico, the situation is expected to worsen, the nonprofit Human Rights First said in a recent report.
The Mexican government has played down the violence. Foreign Minister Marcelo Ebrard recently acknowledged kidnapping incidents, but said that “it’s not a massive number.” Only 20 such cases have been investigated by the government, he added.
The Trump administration has credited the program with deterring migrants from attempting to cross into the U.S. Monthly apprehensions of migrants at the U.S. Southern border have plunged from more than 144,000 in May to 33,500 in November. The Remain in Mexico program was expanded in June.
On a recent visit to the border, acting Department of Homeland Security Secretary Chad Wolf said the program has been a “game-changer” for U.S. Customs and Border Protection officers because it has freed them from having to perform humanitarian duties.
But Mr. Ortíz’s daily commute back and forth over the border highlights what migrants’ advocates say is a key element of the program—it isolates migrants not only from the legal counsel they need to argue their asylum claims, but from resources like food, shelter and medical care that are abundant on the U.S. side, but near-nonexistent in Mexico.
“You have all this infrastructure to help feed and clothe and house people set up on this side, in Laredo and Del Rio and Eagle Pass, and then suddenly the administration changes the policy, and you have to send it all to Mexico, because now everyone is on the other side,” said Denise LaRock, a Catholic Sister who helps distribute donations to asylum seekers through the nonprofit Interfaith Welcome Coalition. Mexico has been unable to provide enough safe shelter and other resources to migrants.
In Matamoros, another large recipient of asylum seekers under the program across the border from Brownsville, Texas, a tent city of more than 3,000 people has sprung up. Migrants there have complained of overcrowding, unsanitary conditions and insufficient medical treatment. In November, a migrant from El Salvador was murdered in Tijuana, opposite San Diego, while waiting with his wife and two children for an asylum hearing under the Remain in Mexico program.
On a recent, briskly-cold Wednesday, Mr. Ortíz, dressed in a ski vest and a baseball cap with the logo of the U.S. Chaplain International Association, picked up six migrants, including two children aged 8 and 14, at the immigration office in Nuevo Laredo. All were from El Salvador, Guatemala or Honduras, and were returning from legal appointments in the U.S. Hearings take place in makeshift courts set up in tents in Laredo, just across the bridge over the Rio Grande that separates the two cities.
At the front door of the office, six young men sat idly around a motorcycle, hats pulled low over their heads, watching the scene unfold, periodically walking up to the church van and peering in. Mr. Ortíz said these men were “hawks” or lookouts for criminal gangs.
“They know who I am, I know who they are,” he said. “You have to know everyone to do this work. The cartels respect the church. I’ve driven all around Nuevo Laredo in this van, full of migrants, and they never mess with me.”
At one point two of the lookouts asked the pastor for some food. He gave them two boxes of sandwich cookies. They clapped him on the shoulder, eating the treats as they walked back to their observation post.
Mr. Ortíz, a native of central Mexico, came to the U.S. at age 15 and eventually built a small contracting business in Texas. He became an ordained Baptist minister about a decade ago and three years ago began ministering to migrants full time. This year, he converted several rooms of his home in Laredo, Texas, into a dormitory for migrants and built men’s and women’s showers in his backyard.
After picking up the migrants, Mr. Ortíz ferried the group to an unmarked safe house with a chain-locked door on a busy street in the center of Nuevo Laredo, Mexico.
Inside, about 90 migrant families crowded into rows of cots set up in a handful of bedrooms and a concrete back patio. Among the Central Americans are also migrants from Peru, Congo, Haiti, Angola and Venezuela.
Reports of migrant kidnappings have increased since the Remain in Mexico program began, Mr. Ortíz said. In September, armed men stormed the safe house—one of two that the pastor brings migrants to—and detained the shelter’s staff for about an hour.
Since then, Mr. Ortíz said, the volunteer staff has stopped allowing migrants to leave the house unaccompanied, even to buy milk for young children at a nearby store.
Rosa Asencio, a schoolteacher fleeing criminal gangs in El Salvador and traveling with her two children ages 4 and 7, was returned to Nuevo Laredo under Remain in Mexico. She says she hasn’t been outside the shelter for nearly three weeks. “They can kidnap you anywhere,” she said.
María Mazariegos, an Honduran housekeeper, said she was kidnapped along with her 12-year-old daughter Alexandra from the bus station in Nuevo Laredo in September.
Gang members held her in a windowless cinder-block room that bore signs of torture for three days with one meal of tortillas and beans. She was released after her family members in the U.S. convinced her captors that they didn’t have the money to pay a ransom.
Then, two weeks later, while she was returning from a court appointment in the U.S., a shelter staff member confirmed, another group tried to kidnap her. An escort from the shelter was able to talk the kidnappers out of it.
She has court hearing under Remain in Mexico rules on Jan. 22, where a judge is expected to decide on her asylum case. If she is rejected, she plans to move to the Mexican city of Saltillo, where she has heard there are more jobs and less violence.
“Just about anywhere is better than here,” Ms. Mazariegos added.
These two quotes really tell you all you need know about this grotesquely immoral and illegal “Let ‘Em Die In Mexico Program” (sometimes totally disingenuously referred to as the “Migrant Protection Protocols”) and the sleazy U.S. Government officials responsible for it:
There have been 636 reported cases of kidnapping, rape, torture and other violent crimes against migrants returned to Mexico under Remain in Mexico, according to Human Rights First, which interviews victims in border cities and advocates for migrants’ due process rights. At least 138 of these incidents involved kidnappings of children.
. . . .
On a recent visit to the border, acting Department of Homeland Security Secretary Chad Wolf said the program has been a “game-changer” for U.S. Customs and Border Protection officers because it has freed them from having to perform humanitarian duties.
Let’s not forget that the Immigration “Court” system that has life or death power over these asylum claims has been twisted and “gamed” against legitimate asylum seekers, particularly women and children with brown skins, by the White Nationalist politicos who unconstitutionally control it. All this while the Article III appellate courts look the other way and “swallow the whistle” on protecting the legal and constitutional rights of the most vulnerable among us.
Let’s see, essentially: “It’s great program because it allows us to evade our humanitarian duties under humanitarian laws and concentrate on faux law enforcement directed against individuals who are not legitimate targets of law enforcement.” Doesn’t say much for the legal and moral authority of the Article III, life-tenured judges who think this is acceptable for our country.
Obviously, this has less to do with the law, which is clearly against what the “regime” is doing, or legitimate law enforcement, which has little to do with the vast majority of legal asylum seekers, and lots to do with vulnerable, brown-skinned individuals desperately seeking justice being “out of sight, out of mind” to the exalted, tone-deaf Article III Judges who are failing to do their Constitutional duties. “Going along to get along” appears to be the new mantra of far too many of the Article III appellate judges.
Assuming that our republic survives and that “Good Government” eventually returns to both the Executive and the Legislative Branches, an examination of the catastrophic failure of the Article III Judiciary to effectively stand up for the Constitutional, legal, and individual human rights of asylum seekers obviously needs reexamination and attention.
The glaring lack of legal expertise in asylum, immigration, and human rights laws as well as basic Constitutional Due Process, and the total lack of human empathy among far, far too many Article III appellate jurists is as stunning as it is disturbing! The past is the past; but, we can and should learn from it. At some point, if we are to survive as a nation of laws and humane values, we need a radically different and more courageous Article III Judiciary that puts humanity and human rights first, not last!
The “Let ‘Em Die In Mexico Program” will not go down in history as a “law enforcement success” as Wolf-man and the other Trump regime kakistocrats and their enablers and apologists claim; it eventually will take its place as one of the most disgraceful and cowardly abandonments of American values in our history. And, the role of the complicit Supreme Court Justices and Court of Appeals Judges who turned their backs on our asylum laws, our Constitution, and human decency will also be spotlighted!
As I was “indexing” this article, I “scrolled through” the name and thought of my old friend the late Arthur Helton, a courageous humanitarian, lawyer, teacher, role model, and occasional litigation opponent (during my days at the “Legacy INS”). Arthur, who literally gave his life for others and his steadfastly humane view of the law, was a believer in the “fundamental justice” of the American judicial system. I wonder what he would think if he were alive today to see the cowardly and complicit performance of so many Article III appellate judges, all the way up to and including the Supremes, in the face of the unlawful, unconstitutional, institutionalized evil, hate, and tyranny of our current White Nationalist regime.
For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.
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Go to the link for complete individual Immigration Judge asylum stats.
The idea that a “court” system is providing “fair and impartial” decisions toasylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!
Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.
That suggests that under a fair and impartial judicial system asylum seekerscould and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.
The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states.
Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremeshave taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.
Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again.
With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?
In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:
“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).
Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”
Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.
Due Process Forever; Corrupt, Complicit Federal Courts Never!
Washington (CNN)Lisa Dornell loved her job. For 24 years, she sat on the bench in Baltimore’s immigration court, hearing hundreds of cases of immigrants trying to stay in the United States.
“It was an honor. It was a privilege to be able to preside over so many different cases and be able to grant relief to people who needed relief,” Dornell told CNN in an interview.
But she walked away from that job in April — a decision that still invokes a wave of emotion when she recalls it. “The toxic environment made it both harder and easier to leave,” Dornell said.
Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system — which is run by the Justice Department — or passed away, according to the department. That’s nearly double the number who departed their posts in fiscal years 2018 and 2017, when 24 and 21 judges left, respectively, according to data provided by the judges union.
The reasons why individual judges have moved on from their posts on the bench vary, but in interviews with judges who left in recent months, one theme ties them all together: frustration over a mounting number of policy changes that, they argue, chipped away at their authority.
Their departures come as the Justice Department faces a backlog that exceeds 1 million cases. The bogged-down system has led to immigration cases being pushed out years in the future, leaving many immigrants residing in the US unsure if they’ll be allowed to stay or be ordered removed.
President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, the administration has sought to hire more immigration judges. Most recently, the immigration judge corps hit a record high, though the Justice Department still has to contend with judges leaving over policy disagreements.
In a statement to CNN, the Justice Department’s Executive Office for Immigration Review spokeswoman, Kathryn Mattingly, said the agency “continually plans for attrition, and both improvements to the hiring process and a policy of ‘no dark courtrooms’ help minimize the operational impact of (immigration judge) separations and retirements.”
The agency doesn’t track individual reasons for retirements or departures, Mattingly said.
Immigration judges — employees of the Justice Department — are charged with following the policies set by each administration.
“The nature of the job ebbed and flowed as administrations changed,” Dornell recalled. “It was always tolerable. We all work with a realization that it’s the prerogative of the administration to implement policies as they see fit.”
The Trump administration was no exception. Trump’s first attorney general, Jeff Sessions, implemented a series of changes to the immigration court system that have continued under his successor, William Barr.
The Justice Department has imposed case quotas, given more power to the director charged with overseeing the courts, reversed rulings, curtailed judges’ ability to exercise discretion in some cases and moved to decertify the union of immigration judges.
Over time, those actions prompted immigration judges, some of whom were retirement eligible and had decades of experience, to leave the department despite initial plans to stay longer.
“I felt then and I feel now that this administration is doing everything in its power to completely destroy the immigration court system, the board of immigration appeal and the immigration system in general,” said Ilyce Shugall, who served as an immigration judge in San Francisco from 2017 until March of this year. “And I just couldn’t be a part of that.”
‘It started to wear on me’
Over his nearly two-year tenure as attorney general, Sessions transformed the courts by flexing his authority to overrule decisions, hire more immigration judges and set a case quota for judges.
One of Sessions’ addresses to the workforce, in particular, resonated with judges. In a June 2018 speech in Washington, Sessions denounced the system, which he believed was encouraging migrants to make baseless asylum claims, and reminded judges of their role in cracking down on those claims.
“You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly and consistently,” Sessions said. Later that day, he issued a ruling that removed asylum protections for victims of domestic violence and gang violence.
“To be honest with you, in that meeting room, there were a number of judges that cheered and clapped when he announced it,” said former immigration judge Rebecca Jamil, referring to the ruling that would follow his address. “It was grotesque to me.”
Jamil, who had been based in the San Francisco immigration court, had a docket that included migrants who had fled their home countries, claiming they were victims of domestic violence. Sessions’ decision took direct aim at those cases.
Another judge in attendance at Sessions’ speech, Denise Slavin, recalled jaws dropping. Slavin had become a judge in 1995, serving in Florida before finishing her tenure in Baltimore in April of this year.
Sessions’ address and follow-up ruling was among a series of policy changes that began to wear on judges.
“When you’ve been around that many administrations, you learn to adapt. You see a lot of different things. Nothing like this,” said James Fujimoto, a former Chicago immigration judge who started on the bench in 1990 and also retired in April.
In particular, the administration began rolling out changes that dictated the way judges were expected to proceed with cases, thereby tightening control of the immigration courts. For example, the Justice Department said it would evaluate immigration judges on how many cases they close and how fast they hear cases.
Earlier this year, the Justice Department also issued a new rule that gives more power to the director of the Executive Office for Immigration Review. It allows the Justice Department-appointed director — currently James McHenry — to step in and issue a ruling if appeals are not completed within a certain time frame.
“It started to wear at me,” said Jennie Giambastiani, a former Chicago immigration judge who joined the bench in 2002 and left this year. “The great number of cases coming in and the way it was expected we handle them.”
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, told CNN that for the majority of people leaving their roles it’s a result of the “hostility and insulting working conditions.”
Tabaddor noted that there’s been a pattern of new judges either leaving to return to their old jobs or taking other jobs within the government.
“This is not what they signed up for,” Tabaddor said, referring to policies designed to dictate how judges should handle their dockets.
Judges who have since left the department expressed similar concern over those policies. Dornell called the situation “intolerable.”
Shugall recalled the challenges she had faced in trying to move forward with cases in a way she thought was appropriate. “I felt like as more and more policies were coming down, it was making it harder and harder to effectively hear cases in the way that I felt was appropriate and in compliance with the statute regulations and Constitution,” Shugall said.
At an event earlier this year, McHenry rejected criticism that judges are vulnerable to pressures from the attorney general.
“Most judges that we’re familiar with, and I don’t think that immigration judges are any exception, when they’re on the bench, they know what their role is as a judge,” he said. “We’ve had no allegations of anyone reaching down to specific judges telling them, ‘You have to rule this way; you have to rule that way.’ ”
Justice Department hires new judges
Earlier this month, the Justice Department announced 28 new immigration judges, bringing the number of such judges to more than 465, a record high. The majority come from government backgrounds.
It’s not unusual for administrations to hire people who’ve worked in government, but under the Trump administration, Booz Allen Hamilton, at the direction of the Justice Department’s Executive Office for Immigration Review, issued a report recommending that the agency diversify the experience of immigration judges.
The direction of the nation’s immigration courts is also a source of concern among immigrant advocate groups. This month, groups filed a wide-ranging lawsuit, alleging that the Trump administration has manipulated the immigration court system to serve an “anti immigrant agenda.”
It remains to be seen what changes, if any, are in store for the court system, but some of those who have already left their posts as judges carry guilt for departing, concerned about who may fill their jobs.
“The biggest thing I contended with is who is going to replace me,” Jamil said. “I knew I was a fair judge.”
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I’m proud to say that all of the quoted former Immigration Judges are members of our Round Table of Former Immigration Judges, committed to preserving and advancing Due Process and judicial independence.
Apparently, EOIR headquarters and DOJ bureaucrats now refer to Immigration Judge decisions as “policy decisions,” thereby dropping any pretense that they are fair and impartial quasi-judicial adjudications under the law.
As for the ludicrous claim that this is anything approaching a legitimate independent judiciary, as one of my Round Table colleagues succinctly put it: “The political arm of DOJ’s assertion that IJs are treated independently is so much BS.”
Yup! Congratulations and many thanks to Judge Dornell and the others who spoke out in this article!
So, Immigration Judges, who lack the life tenure and protections of independence given to Article III Judges, put their careers and livelihoods on the line for Due Process and the rule of law, and, frankly, to save vulnerable lives that deserve saving. Meanwhile, the majority of Supreme Court Justices and far too many Article III Courts of Appeals Judges just bury their judicial heads in the sand and pretend like the outrages against Due Process, fundamental fairness, and the rule of law aren’t really happening in Immigration Court and that human lives aren’t being ruined or lost by their derelictions of duty. Has to make you wonder about their ethics, courage, and commitment to their oaths of office, as well as what the purpose of life tenure is if all it produces is complicity in the face of tyranny that threatens to destroy our Constitution and bring down our republic.
The Article IIIs are providing some rather sad examples and bad role models for today’s aspiring lawyers.
Newsday: The Green Light Law also allows new kinds of records to be used by immigrants to apply for licenses. These include an unexpired passport from another country, an unexpired identification number from a consulate, and a foreign driver’s license that is valid or expired for less than 24 months. If an applicant doesn’t have a Social Security number, they need to sign an affidavit that they hadn’t been issued one. Even the federal government would need a court order to obtain these records. The law requires that most of the records to eventually be destroyed, and supporters expect that would happen before court orders could be issued. The documentation is specifically identified as not being a public record under the law.
Bloomberg: Justices from both the conservative and liberal wings of the court aggressively questioned the government’s attorney in a case examining what immigration decisions are reviewable in federal court.
CNN: As of mid-September, there were 19 judges from three separate immigration courts in Texas hearing cases. But the latest expansion includes the use of immigration judges assigned to a center in Fort Worth, Texas, that is closed to the public, leaving little opportunity for people to observe hearings.
Ms.: [Karen Musalo (CGRS)] recently returned from a human rights fact-finding trip with colleagues to El Salvador, and our findings illustrate the absurdity of a U.S. / El Salvador safe third country agreement.
Forbes: The year 2019 produced many significant and, in some cases, tragic stories about immigrants, refugees and asylum seekers. The list is not comprehensive but focuses on those stories considered most important to remember.
ABC: If they vote to bar refugees, as expected, Burleigh County — home to about 95,000 people and the capital city of Bismarck — could become the first local government to do so since President Donald Trump issued an executive order making it possible.
MJ: Even as President Donald Trump has complained about rules that prevent American companies “from retaining highly skilled and… totally brilliant people” from abroad, his administration has made sweeping changes to the H-1B program, denying visas to skilled immigrants, some who have been working in the United States for years. USCIS has been denying H-1B petitions at a record rate: 24 percent of first-time H-1B applications were denied through the third quarter of 2019 fiscal year, compared with 6 percent in 2015.
(1) Torturous conduct committed by a public official who is acting “in an official capacity,” that is, “under color of law” is covered by 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), but such conduct by an official who is not acting in an official capacity, also known as a “rogue official,” is not covered by the Convention.
(2) The key consideration in determining if a public official was acting under color of law is whether he was able to engage in torturous conduct because of his government position or if he could have done so without a connection to the government.
New Acting Court Administrator at New York – Varick Immigration Court
EOIR: Effective today, Paul Friedman is the Acting Court Administrator for the New York – Varick, Fishkill, and Ulster immigration courts. Paul is currently the Court Administrator for the Elizabeth Immigration Court in New Jersey. He will be splitting his time between the Elizabeth IC and the Varick IC each week.
Politico: A divided 9th Circuit panel clears away obstacles to a key administration immigration policy, but courts in other parts of the country [including SDNY] still have it on hold.
ACLU: The lawsuit states that the new programs – known as Prompt Asylum Claim Review (“PACR”) and the Humanitarian Asylum Review Process (“HARP”) – require the detention of asylum seekers in dangerous CBP facilities known as “hieleras” (or “iceboxes” for their freezing temperatures) with no meaningful way to obtain or consult with an attorney before their hearings.
Justia: The Second Circuit denied a petition for review of the BIA’s decision affirming the IJ’s determination that petitioner was removable and ineligible for cancellation of removal. The court held that petitioner’s conviction under New York Penal Law 110.00, 130.45 for attempted oral or anal sexual conduct with a person under the age of fifteen constitutes sexual abuse of a minor, and was therefore an aggravated felony under the Immigration and Nationality Act. The court explained that petitioner’s conviction under the New York statute did not encompass more conduct than the generic definition and could not realistically result in an individual’s conviction for conduct made with a less than knowing mens rea.
Courtside: The BIA concluded, based on recent precedent from the Attorney General, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group of “women in Mexico who are unable to leave their domestic relationships” was not a cognizable particular social group under the Immigration and Nationality Act (“INA”).
Page 6 of the new I-912 instructions state: “If you are applying for adjustment of status or filing related forms based on SIJ classification, you are not required to complete Part 2. of Form I-912 or to show proof of income to request a fee waiver.” Part 2 is the biographical information. It is possible this is an error and USCIS meant Part 3, regarding income. If you have any test cases that won’t age out, spread the word on how this plays out.
USCIS extension of the comment period on the proposed rule published at 84 FR 62280 on 11/14/19, which would significantly alter the USCIS fee schedule and make other changes, including form changes. Comments are now due 12/30/19. (84 FR 67243, 12/9/19) AILA Doc. No. 19120900
EOIR will open a new immigration court in Los Angeles, on December 9, 2019. The Van Nuys Blvd. immigration court will cover Kern, San Luis Obispo, Santa Barbara, and Ventura counties, and parts of Los Angeles County. Notice includes court’s location, contact information, and hours of operation. AILA Doc. No. 19120234
On 12/3/19, CBP met with privacy groups to discuss its implementation of the congressional biometric entry-exit mandate and the protection of traveler privacy during the biometric facial comparison process at ports of entry. CBP has implemented this technology at more than 20 U.S. ports of entry. AILA Doc. No. 19120432
DOS final rule making a clarification to the regulations on passports regarding situations in which a passport applicant is certified by the Secretary of the Treasury as having a seriously delinquent tax debt. The rule is effective 12/9/19. (84 FR 67184, 12/9/19) AILA Doc. No. 19120932
USCIS 60-day notice and request for comments on proposed revisions to Form I-290B, Notice of Appeal or Motion. USCIS originally published this notice at 84 FR 39359 and decided to propose additional changes in this new 60-day notice. Comments are due 2/4/20. (84 FR 66924, 12/6/19) AILA Doc. No. 19120934
ICE announced that it is opening the Bluebonnet Detention Center in Anson, Texas, the week of December 9, 2019. The facility, which will be managed by Management and Training Corporation (MTC), will house about 1,000 ICE detainees as they await outcomes of their immigration proceedings or removal.
Obtained via FOIA, ICE provided the guidance to ICE staff regarding the phase-out of the Interactive Scheduling System and replacement by the DHS Portal to schedule Notices to Appear. The Portal replaced CASE-ISS as of August 2019. Special thanks to Aaron Hall. AILA Doc. No. 19120330
The item about the BIA’s atrociously wrong CAT interpretation in Matter of O-F-A-S-, the results of the Musalo visit to El Salvador, the continuing “go along to get along” with Trump’s legal abuses in immigration by gutless panels of the 9th & 11th Circuits in City & County of San Francisco and AMEZCUA-PRECIADO, respectively, and the expansion of lawless “Tent Courts” by EOIR ought to outrage every American.
On the flip side, the possibility that the Supremes will finally stiff the Regime’s bogus arguments for limiting or eliminating judicial review of final orders of removal and the new ACLU suit about the Regime’s unlawful schemes to prevent attorney access for asylum seekers provide at least some hope of better days to come for the “Good Guys of the Resistance.”
AMEZCUA-PRECIADO v. U.S. ATTORNEY GENERAL, 11th Cir., 12-03-19, published (per curium)
PANEL: BRANCH, FAY and HULL, Circuit Judges.
Maria Amezcua-Preciado, a native and citizen of Mexico, along with her two minor children, petitions for review of the Board of Immigration Appeals’ (“BIA”) final order reversing the Immigration Judge’s (“IJ”) grant of her application for asylum and denying her withholding of removal. The BIA concluded, based on recent precedent from the Attorney General, Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), that Amezcua-Preciado’s proposed social group of “women in Mexico who are unable to leave their domestic relationships” was not a cognizable particular social group under the Immigration and Nationality Act (“INA”). After review, we agree with the BIA that Amezcua-Preciado failed to establish membership in a particular social group. We thus deny Amezcua- Preciado’s petition for review.
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Wow, what an amazingly gutless and disingenuous performance! Complicit Article III courts have become one of the Trump Regime’s key White Nationalist tools for “deconstructing” U.S. immigration, refugee, and asylum laws.
These aren’t legal disagreements; they are a derelictions of ethical and moral responsibilities. Matter of A-B- was a biased, legally incorrect, factually distorted, unethical attack on asylum law by a Sessions, who was not a “fair and impartial adjudicator.” It ignored a generation of well-developed jurisprudence, legal analysis, and overwhelming factual support for recognizing gender-based domestic violence as a basis for asylum.
Matter of A-R-C-G-, overruled by A-B-, represented a broad consensus within the legal community. Indeed, much of the impetus for that decision came from DHS itself, who had been successfully and efficiently applying its principles in Asylum Offices and in Immigration Courts long before A-R-C-G- actually became a precedent. Remarkably, no actual party requested Sessions’s intervention in A-B-; he rejected ICE’s request to vacate his interference and return the case to the BIA for adjudication under A-R-C-G- criteria. Obviously, the fix was on. But, that made no difference to Branch, Fay, and Hull in their disingenuous haste to “roll over” for the White Nationalist agenda.
I hope that when future historians eventually dissect the rancid racism, misogynism, and White Nationalism of the current regime they will fully expose jurists like Branch, Fay, & Hull who used their privileged positions to “go along to get along,” enabling and furthering the regime’s illegal and unethical “war on asylum seekers, migrants of color, and women.”
Here’s Why the Rejection Rate for Asylum Seekers Has Exploded in America’s Largest Immigration Court in NYC
“It’s basically like the same problem with putting quotas on police officers for tickets.”
The rate of asylum petitions denied in New York City’s busy immigration court has shot up about 17 times times faster than in the rest of the country during the Trump administration’s crackdown—and still Ana was there, a round-faced Honduran woman with a black scarf wrapped turban-like over her hair, a look of fright crossing her dark eyes as the judge asked if she faced danger in her home country.
Her eyes darted over to her helper, a Manhattan lighting designer with New Sanctuary Coalition volunteers to offer moral support—she couldn’t find a lawyer to take her case for free. Then Ana turned back to the judge, or rather, to the video screen that beamed him in from Virginia, and whispered to the court interpreter in Spanish: “My spouse and my son were killed.” Tears welled in her eyes as she said a notorious transnational gang had carried out the slaying.
“Yes we were receiving threats from them,” she added. And that was why, months before her husband and son were slain, she and her 5-year-old daughter had come “through the river,” entering the United States near Piedras Negras, Mexico.
After ruling that she was deportable, the judge gave Ana—The Daily Beast is withholding her real name because of the danger she faces in Honduras—three months to submit a claim for asylum, a possible defense against her removal. “You should start working on that,” the judge told her. As she left the courtroom, Ana hugged the volunteer who’d accompanied her, Joan Racho-Jansen.
New York’s immigration court has long been the asylum capital; it has made two out of every five of the nation’s grants since 2001, while handling a quarter of the caseload. With approval of 55 percent of the petitions in the fiscal year ended Sept. 30, it still grants a greater percentage of asylum requests than any other courts except San Francisco and Guam.
But New York’s golden door is slamming shut for far more asylum seekers than in the past, especially for women like Ana.
The asylum denial rate in the New York City immigration court rose from 15 percent in fiscal year 2016, the last full year of the Obama administration, to 44 percent in fiscal year 2019, which ended Sept. 30. The rest of the country, excluding New York, has been relatively stable, with denials going from 69 percent to 74 percent. That is, the rate of denials in the rest of the country increased by one-ninth, but in New York they almost trebled.
There are other courts where the rate of denials has shot up sharply over the same period: Newark, New Jersey (168 percent); Boston (147 percent); Philadelphia (118 percent). But because of the volume of its caseload, what’s happening in New York is driving the national trend against asylum. For now, in sheer numbers, New York judges still granted more asylum requests over the last year than those in San Francisco, Los Angeles, and Arlington, Virginia, the next three largest courts, combined.
An analysis of federal data compiled by the Transactional Records Access Clearinghouse at Syracuse University and interviews with former immigration judges, lawyers, immigrant advocates and experts finds multiple reasons for the sharp shift in the nation’s largest immigration court as compared to the rest of the country:
—Many more migrants are coming to the New York court from Mexico and the “Northern Triangle” of El Salvador, Honduras, and Guatemala, and the judges have been far more likely to deny them asylum than in the past: from two out of five cases in the 2016 fiscal year to four out of five cases in the 2019 fiscal year.
—Many veteran New York judges retired, and most of the replacements have a prosecutorial, military, or immigration enforcement background. In the past, appointments were more mixed between former prosecutors and immigrant defenders. Immigration judges are appointed by the U.S. attorney general and work for the Justice Department, not the federal court system.
—All the judges are under heavier pressure from their Justice Department superiors to process cases more quickly, which gives asylum applicants little time to gather witnesses and supporting documents such as police reports. New judges, who are on two years of probation, are under particular pressure because numerical “benchmarks” for completing cases are a critical factor in employee evaluations.
“You have a huge number of new hires in New York,” said Jeffrey Chase, a former New York immigration judge. “The new hires are mostly being chosen because they were former prosecutors. They’re normally of the background that this administration thinks will be statistically more likely to deny cases.”
Judge Jeffrey L. Menkin, who presided in Ana’s case via video hookup, began hearing cases in March. He is based in Falls Church, Virginia, the home of the Executive Office of Immigration Review, the Justice Department agency that runs the immigration courts. He’d been a Justice Department lawyer since 1991, including the previous 12 years as senior counsel for national security for the Office of Immigration Litigation.
Menkin can see only a portion of his New York courtroom on his video feed and as a result, he didn’t realize a Daily Beast reporter was present to watch him conduct an asylum hearing for a Guatemalan woman—we’ll call her Gloria—and her three young children, who were not present.
Immigration and Customs Enforcement took Gloria into custody at the Mexican border in March. Released on bond, she made her way to New York and had an initial immigration court hearing on June 26, one of many cases on a crowded master calendar. She was scheduled for an individual hearing four months later.
At the hearing scheduled three months later on the merits of her case, she decided to present an asylum defense to deportation. Her lawyer asked for a continuance—that is, a new hearing date—while his client waited to receive documentation she’d already requested from Guatemala. The papers were on the way, Gloria said.
Judges in such cases—those that the Department of Homeland Security designates as “family unit”—have been directed to complete them within a year, which is about 15 months faster than the average case resolved for the year ending Sept. 30. Down the hall, other types of cases were being scheduled for 2023. Menkin called the lawyer’s unexpected request for a continuance “nonsense” and “malarkey” and asked: “Are you and your client taking this case seriously?”
The judge then asked if Gloria was requesting a case-closing “voluntary departure,” a return to her homeland that would leave open the option she could apply again to enter the United States.
But Gloria had no intention of going back to Guatemala voluntarily. So Menkin looked to the government’s lawyer: “DHS, do you want to jump into this cesspool?” The government lawyer objected to granting what would have been the first continuance in Gloria’s case.
And so Menkin refused to re-schedule, telling Gloria and her lawyer that they had to go ahead right then if they wanted to present an asylum defense. Gloria began testifying about threats and beatings that stretched back a decade, beginning after a failed romance with a man who was influential in local politics. Details are being withheld to protect her identity.
She finally fled, she said, when extortionists threatened to hurt her children if she didn’t make monthly payoffs that were beyond her means. When she observed that she and her children were being followed, she decided to leave. After she said she had gone to police three times, Menkin took over the questioning.
“Are you familiar with the contents of your own asylum application?” he asked, pointedly.
“No,” Gloria responded.
Menkin said her asylum application stated she had gone to police once, rather than three times, as she’d just testified. Gloria explained that she had called in the information for the application to an assistant in her lawyer’s office, and didn’t know why it was taken down wrong.
When her lawyer tried to explain, Menkin stopped him, raising his voice: “I did not ask you anything.”
Later, Menkin came back to the discrepancy he’d picked up on. “I don’t know why,” Gloria responded.
“All right, STOP,” Menkin told the woman, who cried through much of the two-hour hearing. Again, he sought to terminate the case, asking the DHS lawyer, “Do I have grounds to dismiss this now?”
“I’m trying to be fair,” she replied.
“We’re all trying to be fair,” Menkin said.
And to be fair, it should be noted that since October 2018, the Executive Office for Immigration Review (EOIR) has been evaluating judges’ performance based on the numbers for case completions, timeliness of decisions and the percent of rulings upheld on appeal. “In essence, immigration judges are in the untenable position of being both sworn to uphold judicial standards of impartiality and fairness while being subject to what appears to be politically-motivated performance standards,” according to an American Bar Association report that assailed what it said were unprecedented “production quotas” for judges.
The pressure is especially strong on judges who, like Menkin, are new hires. They are probationary employees for two years.
Denise Slavin, a former president of the National Association of Immigration Judges who retired from the bench in April after 24 years of service, said the judges’ union had tried to talk EOIR Director James McHenry out of his quotas. “It’s basically like the same problem with putting quotas on police officers for tickets,” she said. “It suggests bias and skews the system to a certain extent.” Told of the details of Gloria’s hearing, she added, “That’s a prime example of the pressure these quotas have on cases… the pressure to get it done right away.”
Kathryn Mattingly, spokeswoman for the Executive Office of Immigration Review, said by email that she couldn’t comment on individual cases, but that all cases are handled on their individual merits. “Each asylum case is unique, with its own set of facts, evidentiary factors, and circumstances,” she wrote. “Asylum cases typically include complex legal and factual issues.” She also said that Menkin could not comment: “Immigration judges do not give interviews.”
It’s true that each asylum case has its own complex factors. But a 2016 study by the U.S. Government Accountability Office took many of them into account—the asylum seeker’s nationality, language, legal representation, detention status, number of dependents—and determined that there are big differences in how the same “representative applicant” will be treated from one court and one judge to another.
“We saw that grant rates varies very significantly across courts and also across judges,” said Rebecca Gambler, director of the GAO’s Homeland Security and Justice team.
Some experts say that changes in the way the Justice Department has told immigration judges to interpret the law may be having an outsize effect in New York.
Starting with Jeff Sessions, the Trump administration’s attorneys general have used their authority over immigration courts to narrow the judges’ discretion to grant asylum or, in their view, to clarify existing law.
Asylum can be granted to those facing persecution because of “race, religion, nationality, membership in a particular social group, or political opinion.” In June 2018, Sessions overturned a precedent that many judges in New York had been using to find that victims of domestic assaults or gang violence could be members of a “particular social group,” especially when police were complicit or helpless. Justice’s ruling in the Matter of A-B-, a Salvadoran woman, seems to have had a particular impact in New York.
“Where there’s a question about a ‘particular social group,’ judges in other parts of the country may have taken a narrower view” already, said Lindsay Nash, a professor at Cardozo Law School in New York and co-director of the Kathryn O. Greenberg Immigration Justice Clinic.
Mauricio Noroña, a clinical teaching fellow at the same clinic, said new judges would be especially careful to follow the lead in the attorney general’s ruling.
Andrew Arthur, a fellow at the Center for Immigration Studies in Washington and a former immigration judge in York, Pennsylvania, said Sessions’ decision in the Matter of A-B- would particularly affect Central American applicants, whose numbers have increased sharply in New York’s court. Data show that just 8.5 percent of the New York asylum cases were from Central America or Mexico in 2016; in the past year, 32.6 percent were.
Arthur said a larger portion of the New York court’s asylum rulings in the past were for Chinese immigrants, whose arguments for refuge—persecution because of political dissent, religious belief, or the one-child policy—are fairly straightforward under U.S. asylum law. Although the number of Chinese applicants is still increasing, they have fallen as a portion of the New York caseload from 60 percent in 2016 to 28 percent in the past year.
Sessions’ determination against A-B- is being challenged, and lawyers have been exploring other paths to asylum in the meantime. “It’s extremely complicated to prepare cases in this climate of changing law,” said Swapna Reddy, co-executive director of the Asylum Seeker Advocacy Project. But, she said, “That’s not to say advocates and judges can’t get back to that [higher] grant rate.”
Gloria continued to cry; the DHS lawyer asked that she be given a tissue. The government lawyer’s cross-examination was comparatively gentle, but she questioned why Gloria didn’t move elsewhere within Guatemala and seek police protection.
“He would find out before I even arrived at the police station,” she said of the man she feared. And, she added, “They’re always going to investigate and as for always being on the run, that’s no life for my kids.”
In closing arguments, Gloria’s lawyer said his client had testified credibly and that she legitimately feared her tormentor’s influence. The DHS lawyer did not question Gloria’s credibility, but she said Gloria’s problem was personal, not political—that she could have moved to parts of Guatemala that were beyond the reach of the man’s political influence.
Judge Menkin then declared a 20-minute recess so that he could compose his decision. In the interim, the lawyers discovered that a man sitting in one corner of the small courtroom was a reporter and, when the judge returned to the bench to rule, so informed him.
Immigration court hearings are generally open to the public. There are special rules for asylum cases, however. The court’s practice manual says they “are open to the public unless the respondent expressly requests that they be closed.”
“Oh, Jesus Christ!” Menkin shouted at the lawyers when he learned a reporter had been present for the hearing. “Don’t you people look around the room? What’s the matter with you?”
After the judge expressed his alarm, the reporter was ejected with Gloria’s tearful assent, and so the basis for Judge Menkin’s ruling on Gloria’s asylum petition is not known. The outcome is, though: denied, 30 days to appeal.
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Sound like Due Process to you? Only if it’s not your life at stake! Wonder how Judge Menkin and others like him would feel if they and their families were subjected to the same type of “judicial” procedure.
In viewing Judge Menkin’s ridiculous denial of a routine continuance, it’s important to understand that the precedent decisions binding Immigration Judges have intentionally over-emphasized the importance of documenting claims – even though documentation is often unavailable or time-consuming to obtain, have properly translated, and serve on the Immigration Judge and ICE in advance of the hearing. Therefore, denying a first continuance for needed preparation is tantamount to “giving the finger” to Due Process!
“Women in Honduras” has been found to be a valid “particular social group” by a number of Immigration Judgers elsewhere. Given the corruption of the Government of Honduras, the political influence of Ana’s tormentor, and the high rate of femicide, it’s highly unlikely that Ana would receive government protection.
The ICE attorney made an absurdist argument that Ana could “safely resettle” elsewhere in Honduras. Honduras is a small country, about the size of Virginia. It has an astronomical murder rate, highly corrupt police, snd almost no viable infrastructure, all important considerations in a legitimate inquiry into relocation. Under these conditions, there is no way that Ana had a “reasonably available internal relocation alternative” in Honduras as described in Federal Regulations. A “real” judge might have grilled ICE counsel about her legally and factually untenable position. But, not Menkin. He apparently had already made up his mind to deny regardless of the law or facts.
In short, before a “fair and impartial” judge with expertise in asylum law this could and should have been an “easy grant” of asylum, even without the additional documentation that could have been presented if the judge had granted a continuance. Instead, it was “orbited” off into a dysfunctional administrative appellate system where results are akin to “Refugee Roulette” highly dependent on the “panel” or individual “Appellate Immigration Judge” to which the case is assigned at the BIA. In this respect, it’s also noteworthy that Barr recently appointed six Immigration Judges with some of the highest asylum denial rates in the country to the BIA. Some “fair and impartial” judiciary!
It also appears that Menkin belatedly and improperly “duressed” Ana into agreeing to a “closed” hearing. Most of the time, once asylum applicants’ attorneys carefully explain to them that public observation and exposure of this “rigged” process might be the only way of getting pressure to change it, they readily agree to have the press present. Also, generally everybody tends to perform better and more professionally when the press or other observers are present (obviously, however, in this particular case, not so much).
First the Trump Regime artificially suppresses asylum grant rates with skewed hiring, improper interpretations of the law, unethical quotas, and pressure on the “judges” to crank out more removal orders. Then, they use the bogus statistics generated by the intentionally flawed and biased process to make a case that most of the asylum claims are non-meritorious.
Notably, even under this clearly biased, overtly anti-asylum procedure, the majority of asylum claims that get decided “on the merits” in New York are still granted. Imagine what the grant rate would be in a truly fair judicial system that properly applied asylum law and the Constitution: 70%, 80%, 90%? We’ll never know, because the regime fears the results of a fair asylum process that fully complies with Due Process: The “dirty little secret” the regime doesn’t want you to know! Talk about “fraud, waste, and abuse!” Something to remember the next time you hear “Cooch Cooch,” “Markie,” Albence, and other Trump sycophants at DHS and DOJ falsely claim that the overwhelming number of asylum applications are without merit.
Judges likes Menkin might want to remember that the truth will eventually “out’ even if too late to save the life of Ana and others like her. When that happens, those judges who put expediency, their jobs, and homage to the Trump Regime’s White Nationalist agenda before the law, Due Process, and human lives will find their “legacies” tarnished forever.
Many thanks to Judge Jeffrey S. Chase and Judge Denise Slavin of our Roundtable of Former Immigration Judges for their usual incisive comments. And a shout out to journalists like Moses and Healy who continue to shed light on the outrageous abuses taking place every day in our Immigration “Courts!”
Ultimately, legal and moral responsibility is on Congress, the Article III Courts, and the voters for allowing this clearly unconstitutional, deadly mess to continue to unfold in the Immigration “Courts” every day. That’s why it’s critical that the New Due Process Army “Constantly Confront Complicit Courts 4 Change.”
Due Process Forever; Complicit (& Corrupt) Courts Never!
My colleague Judge Jeffrey Chase of our Roundtable of Former Immigration Judges reports some good news:
Also, for those of you who subscribe to Ben Winograd’s index of unpublished BIA Decisions, today’s update includes an unpublished decision dated Nov. 6, 2019, Matter of A-C-A-A- (single BM Ellen Liebowitz), affirming the IJ’s grant of asylum in a domestic violence case based on her cognizable PSG of “Salvadoran females.”The written decision of the IJ, Julie L. Nelson in SF, is also included.
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Thanks to those judges like Judge Nelson and Judge Liebowitz who are continuing to stand up for the rights of asylum seekers “post-A-B-.”
And, many thanks to Jeffrey & Ben for passing this good news along and for all they do for Due Process every day!
What if rather than the “A-B- atrocity” made precedent by unethical White Nationalist Jeff Sessions, we had an honest, independent Immigration Court system that encouraged fair and impartial adjudications and implemented asylum laws generously, as intended (see, e.g., INS v. Cardoza-Fonseca) by publishing precedent decisions like this recognizing the right to protection?
BIA precedents on asylum have intentionally been constructed in a negative manner, showing judges how to deny, rather than grant, protection and encouraging them to take a skewed anti-asylum view of the law. Even worse, bogus, unethical, legally incorrect “Attorney General precedents” are uniformly anti-asylum; the applicant never wins.
Some judges, like Judge Nelson and Judge Leibovitz, take their oaths of office seriously. But, too many others “go along to get along” with the unlawful and unethical “anti-asylum program” pushed by the White Nationalist Trump Regime.
Indeed, even during my tenure as an Immigration Judge, I remember being required to attend asylum “training” sessions (in years when we even had training) where litigating attorneys from the Office of Immigration Litigation basically made a presentation that should have been entitled “How to Deny Potentially Valid Asylum Claims And Have Them Stand Up On Judicial Review.”
It’s also past time for the Supremes and the Circuit Courts of Appeals to get their collective heads out of the clouds, start paying attention, begin doing their jobs and strongly rejecting “disingenuous deference” to bogus, illegal, unethical “precedents” rendered by politically biased enforcement hacks like Sessions and Barr who have unethically usurped the role of quasi-judicial adjudicator for which they are so clearly and spectacularly unqualified under the Due Process Clause of the Fifth Amendment. It’s nothing short of “judicial fraud” by the Article IIIs! Constantly Confront Complicit Courts 4 Change!
With a more honest and legally correct favorable precedents on asylum, many more cases could be documented and granted at the Asylum Office and Immigration Court levels. The DHS would be discouraged from wasting court time by opposing meritorious applications. The backlog would start going down. There would be fewer appeals. Justice would be served. Worthy lives would be saved. DHS could stop harassing asylum seekers and start enforcing the laws in a fair and reasonable manner. America would lead the way in implementing humanitarian laws, and we would become a better country for it.
Help the New Due Process Army fight for a better, more just, future for America and the world.
Every day, courageous women and girls arrive at our southern border seeking refuge from unimaginable violence. Under our laws, they have the right to apply for asylum and have their cases heard. But rather than offering protection, the Trump administration is determined to send them back to the countries they have fought so hard to escape.
On Thursday, Sen. Patrick J. Leahy (D-Vt.) and Rep. Zoe Lofgren (D-Calif.) introduced the Refugee Protection Act. The bill lays out a plan to allow women and girls fleeing gender-based violence the opportunity to obtain asylum, and bring our country back in line with its humanitarian commitments. It’s a vision that all members of Congress should be able to get behind, even at a time of bitter partisanship.
It’s no secret that this administration is systematically dismantling our asylum law. Women and children have borne the brunt of the suffering — from the egregious policies of family separation and “Remain in Mexico,” to the quiet publication of decisions by the attorney general that have closed door after door to those seeking safety.
The Refugee Protection Act would rectify many of these inhumane actions, and includes language to reverse recent decisions that have made it nearly impossible for women fleeing domestic violence or gang brutality to qualify as refugees.
One of those decisions — known as Matter of A-B- — was handed down by then-Atty. Gen. Jeff Sessions in 2018. That decision has been used to limit the legal definition of “refugee” in an attempt to eliminate the possibility of asylum in the U.S. for victims of domestic violence, sex trafficking and other gender-based human rights violations. Since then, we have seen asylum approval rates plummet for women, children and families arriving at our southern border.
The Matter of A-B- case involves a domestic violence survivor from El Salvador who fears she will be killed if she is sent back to her country. My organization, the Center for Gender & Refugee Studies, has represented A.B. in her asylum case for nearly two years.
In El Salvador, A.B., a courageous and resilient woman, endured over 15 years of beatings, rapes, death threats and psychological abuse at the hands of her husband. She secured a divorce and even moved to another part of El Salvador, desperate to escape her abuser. But no matter where she went, he tracked her down. When she requested a restraining order, the police provided her one — and told her to hand-deliver it to him. Fearing that he would make good on his threat to kill her, she fled to the United States.
In 2016, A.B. was granted asylum by the highest administrative tribunal in the immigration system, the Justice Department’s Board of Immigration Appeals. But in a highly unusual procedural move, Sessions seized upon A.B.’s case, overturned the grant of asylum, and used it to declare that the United States should no longer extend protection to domestic violence survivors.
A.B. has appealed Sessions’ action, but until a final decision is reached, she remains terrified that she will be deported. Countless other women who have made the arduous journey to the United States also face a hostile immigration system and, post-Matter of A-B-, an even harder legal battle.
Congress has an opportunity to correct this. The new bill would clarify legal requirements for asylum and provide clear guidance for cases involving gender-based violence. It would ensure that asylum seekers like A.B. get a fair opportunity to argue her claim before a judge.
The United States has a long history of giving refuge to people who’ve come to our shores. This measure would be a step toward restoring that tradition.
Karen Musalo is a law professor and the founding director of the Center for Gender & Refugee Studies at UC Hastings College of the Law. She is also lead coauthor of “Refugee Law and Policy: An International and Comparative Approach (5th edition).”
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Here’sa link to an ImmigrationProf Blog summary and the text of the Refugee Protection Act, a recently introduced bill:
BIA NEWS: Judge Garry D. Malphrus Leapfrogs Into Acting Chair Job, As Two Of The Remaining “Voices Of Reason” Bite The Dust At Barr’s “Newly Packed” Falls Church Station Stop On The “Trump Deportation Express!”
By Paul Wickham Schmidt
Exclusive for immigrationcourtside.com
Nov . 7, 2019. In a little noticed move, “Trump Chump” Attorney General Billy Barr in October advanced conservative GOP appointed Appellate Immigration Judge Garry D. Malphrus to the position of Acting Chair of the Board of Immigration Appeals in Falls Church Virginia. The move followed the sudden reputedly essentially forced “retirement” of former Chair David Neal in September.
Notably, Barr bypassed long-time BIA Vice Chair and three-decade veteran of the Executive Office for Immigration Review (“EOIR”) (which “houses” the BIA) Judge Charles “Chuck” Adkins-Blanch to elevate Judge Malphrus. Increasingly, particularly in the immigration area, the Trump Administration has circumvented bureaucratic chains of command and normal succession protocols for “acting” positions in favor of installing those committed to their restrictionist political program.
Like former Chair Neal, Vice Chair Adkins-Blanch has long been rumored not to be on the “Restrictionist A Team” at EOIR. Apparently, that’s because he occasionally votes in favor of recognizing migrants’ due process rights and for their fair and impartial treatment under the immigration laws.
For example, although generally known as a low-key “middle of the road jurist,” Vice Chair Adkins-Blanch authored the key BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). There, the BIA recognized the right of abused women, particularly from the Northern Triangle area of Central America, to receive protection under our asylum, and immigration laws. That decision was widely hailed as both appropriate and long overdue by immigration scholars and advocates and saved numerous lives and futures during the period it was in effect. It also promoted judicial efficiency by encouraging ICE to not oppose well-documented domestic violence cases.
Nevertheless, in a highly controversial 2018 decision, White Nationalist restrictionist Attorney General Jeff Sessions dismantled A-R-C-G-. This was an an overt attempt to keep brown-skinned refugees, particularly women, from qualifying for asylum. Matter of A-B –, 27 I&N Dec. 316 (A.G. 2018). Session’s decision was widely panned by immigration scholars and ripped apart by U.S. District Judge Emmet Sullivan, the only Article III Judge to address it in detail to date, in Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Nevertheless, Matter of A-B- remains a precedent in Immigration Court.
In addition to the Malphrus announcement, sources have told “Courtside” that veteran BIA Appellate Immigration Judges John Guendelsberger and Molly Kendall Clark will be retiring at the end of December. While the current BIA intentionally has been configured over the past three Administrations to have nothing approaching a true “liberal wing,” Judges Guendelsberger and Kendall Clark were generally perceived as fair, scholarly, and willing to support and respect individual respondents’ rights, at least in unpublished, non-precedential decisions.
This was during an era when the BIA as a whole was moving in an ever more restrictive direction, seldom publishing precedent decisions favoring or vindicating the rights of individuals over DHS enforcement. Additionally, under Sessions and now Barr, the BIA has increasingly been pushed aside and given the role of “restrictionist enforcer” rather than “expert tribunal.” The most significant policies are rewritten in favor of hard-line enforcement and issued as “precedents” by the Attorney General, sometimes without any input or consultation from the BIA at all.
The BIA’s new role evidently is to insure that Immigration Judges aggressively use these restrictionist precedents to quickly remove individuals without regard to due process. Apparently, this new role also includes promptly reversing any grants of relief to individuals, thus insuring that ICE Enforcement wins no matter what, and actively discouraging individuals from daring to use our justice system to assert their rights. To this end, Barr’s six most recent judicial appointments to the BIA, part of an obvious “court-packing scheme,” are all Immigration Judges with asylum denial rates far in excess of the national average and reputations for being unsympathetic, sometimes also rude and demeaning, to respondents and their attorneys.
Indeed, adding insult to injury, Barr’s latest regulatory proposal would give a non-judicial official, the EOIR Director, decisional and precedent setting authority over the BIA in certain cases. This directly undoes some of the intentional separation of administrative and judicial functions that had been one of the objectives of EOIR.
Judge Guendelsberger was originally appointed to the BIA by the late Attorney General Janet Reno in 1995. However, as a member (along with me) of the notorious due process oriented “Gang of Five,” he often wrote or joined dissents from some of the BIA majority’s unduly restrictive asylum jurisprudence. Consequently, Judge Guendelsberger and the rest of the “Gang” were “purged” from the BIA by Attorney General John Ashcroft in 2003.
Reassigned to “re-education camp” in the bowels of the BIA, Judge Guendelsberger worked his way back and was “rehabilitated” and reappointed to the BIA by Attorney General Eric Holder in August 2009. This followed several years as a “Temporary Board Member,” (“TBM”). The TBM is a clever device used to conceal the dysfunction caused by the Ashcroft purge by quietly designating senior BIA staff as judges to overcome the shortage caused by the purge and irrational BIA “downsizing” used to cover up the political motive for the purge. TBMs are also disenfranchised from voting at en banc, thus insuring a more compliant and less influential temporary judicial workforce.
Judge Guendelsberger was the only member of the “Gang of Five” to achieve rehabilitation. However, his former “due process fire” was gone. In his “judicial reincarnation” he seldom dissented from BIA precedents. He even joined and authored decisions restricting the ability of refugees to qualify for asylum based on persecution from gangs that the governments of the Northern Triangle were unwilling or unable to control or were actually using to achieve political ends.
Indeed, his later public judicial pronouncements bore little resemblance to the courageous and often forward-looking jurisprudence with which he was associated during his “prior judicial life” with the “Gang of Five.” Nevertheless, he continued to save lives whenever possible “under the radar screen” in his unpublished decisions, which actually constitute the vast bulk of a BIA judge’s work.
Judge Kendall Clark was finally appointed to a permanent BIA Appellate Judgeship by Attorney General Loretta Lynch in February 2016, following a lengthy series of appointments as a TBM. Perhaps because of her disposition to recognize respondents’ rights in an era of sharp rightward movement at the BIA, she authored few published precedents.
However, she did write or participate in a number of notable unpublished cases that saved lives at the time and advanced the overall cause of due process. She also had the distinction of serving as a Senior Legal Advisor to four different BIA Chairs (including me) from 1995 to 2016.
Thus, the BIA continues its downward spiral from a tribunal devoted to excellence, best practices, due process, and fundamental fairness to one whose primary function is to serve as a “rubber stamp” for White Nationalist restrictionist enforcement initiatives by DHS. The voices of reasonable, thoughtful, scholarly jurists like Judges Guendelsberger and Kendall Clark will be missed.
They are some of the last disappearing remnants of what EOIR could have been under different circumstances. Their departure also shows why an independent Article I Judiciary, with unbiased judges appointed because of their reputations for fairness, scholarship, timeliness, teamwork, and demonstrated respect for the statutory and constitutional rights of individuals, is the only solution for the current dysfunctional mess at EOIR.
Seventeen year-old Josue and his mom, Esperanza, were visibly drained. They had just spent more than four hours at their asylum trial inside an immigration court at 26 Federal Plaza in Lower Manhattan, answering questions from their attorney and a government lawyer. We are withholding their full names to protect their identities because they’re afraid.
“It was exhausting,” said Josue, whose angular haircut was neatly combed for the occasion. In Spanish, he told us the judge seemed nice but, “you feel bad if you don’t know if you are going to be allowed to stay or if you have to go.”
The teen and his mother crossed the U.S. border in California in the summer of 2018. At the time, a rising number of families were entering the country, and the Trump administration wanted to send a message to them by swiftly deporting those who don’t qualify for asylum. But immigration judges are so busy, they can take up to four years to rule on a case. In November, judges in New York and nine other cities were ordered to fast track family cases and complete them within a year.
This is how Esperanza and Josue wound up going to trial just 10 months after they arrived in the U.S. and moved to Brooklyn. They were lucky to find attorneys with Central American Legal Assistance, a nonprofit in Williamsburg that’s been representing people fleeing the troubled region since 1985.
Listen to reporter Beth Fertig’s WNYC story on Josue and Esperanza’s cases.
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Winning asylum was never easy. But in 2018, former Attorney General Jeff Sessions made it tougher for people like Josue and Esperanza when he issued his own ruling on an immigration case involving a woman from El Salvador who was a victim of domestic violence. He wrote: “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.”
Immigration judges were bound to give heavy weight to that ruling. Their courts are run by the Department of Justice, whose boss is the Attorney General. And the AG’s boss, President Trump, frequently asserts that too many migrants lie about being threatened by gangs when they’re just coming for jobs. “It’s a big fat con job, folks,” he said at a Michigan rally this year.
Esperanza and Josue went to court soon after Sessions’ decision. She was fighting for asylum as a victim of domestic abuse; Josue claimed a gang threatened his life. Both would eventually lose their cases.
Josue’s case
Esperanza and Josue are typical of the Central American families seeking asylum these days, who say they’re escaping vicious drug gangs, violence and grinding poverty. The two of them came from a town outside San Pedro Sula, one of the most dangerous cities in the world.
During their trial, Josue testified under oath about how gang members repeatedly approached him outside his high school, asking him to sell drugs to the other students. He tried to ignore them, and gave different excuses for resisting, until one day when they spotted him playing soccer and became more aggressive. That’s when he said the gang leader put a gun in his face.
“He told me that if I didn’t accept what he wanted he was going to kill my whole family, my mother and sister,” he said, through a Spanish interpreter.
“I was in shock,” he said. “I had no other choice to accept and said yes.”
He told his mother and they left Honduras the next day. When Josue’s lawyer, Katherine Madison, asked if he ever reported the threat to the police he said no. “That was practically a suicide,” he said, explaining that the police are tied to the gang, because it has so much power.
Josue said his older sister later moved to Mexico because she was so afraid of the gang.
Winning asylum is a two-step process. You have to prove that you were persecuted, and that this persecution was on account of your race, religion, nationality, social group or political opinion. Madison, Josue’s attorney, argued that in Honduras, defying gangs is a risky political statement.
“They function in many ways as the de facto government of the areas where people like Josue lived,” she told WNYC/Gothamist, summing up the arguments she submitted to the judge. “They make rules. They charge basically taxes, they say who can live there and who can’t.”
And they’re known to kill people who don’t obey.
In her ruling, issued in August, Immigration Judge Oshea Spencer found Josue did experience persecution. But she denied his application for asylum. She said much of what he described “were threats and harm that exist as part of the larger criminal enterprise of the gangs in Honduras and not on the basis of any actual or perceived opposition to the gangs.”
Esperanza’s case
Esperanza’s attorney argued that her life was at risk because the gang member threatened Josue’s family. But Spencer didn’t find that specific enough. She wrote that the gang members “were motivated by their efforts to expand their drug trade, not the family relationship.” Among other cases, she referred to a recent decision by the current Attorney General, William Barr, that makes it harder for the relatives of someone who’s been threatened to win asylum.
Esperanza also lost on a separate claim that she deserved asylum because she was repeatedly beaten by Josue’s father. In court, she testified about years of abuse culminating in an incident in which he chased her with a machete. She said she couldn’t get the police to issue a restraining order, and said he kept threatening her after she moved to another town to stay with relatives.
Madison argued that women like Esperanza belong to a persecuted social group: they can’t get help from the authorities in Honduras because they’re viewed as a man’s property. The country is one of the deadliest places to be a woman; police are known to ignore complaints; and it’s extremely hard for women to get justice.
But Spencer ruled that there is no persecuted social group made up of “Honduran women who are viewed as property” for being in a domestic relationship.
Echoing the Sessions’ ruling, the judge said these categories “all lack sufficient particularity,” and called them “amorphous” because they could be made up of a “potentially large and diffuse segment of society.”
She also cited evidence submitted by the government that showed conditions in Honduras are improving for women. This evidence came from a 2018 State Department report on human rights in Honduras. Immigration advocates claim it’s been watered down from the much harsher conditions described in the last report from 2016. It’s also much shorter in length.
Jeffrey Chase, an immigration lawyer and former New York immigration judge, said it’s not surprising that Esperanza and Josue would each lose asylum. Judge Spencer only started last fall and is on probation for her first two years in the job.
“This was decided by a brand new judge who didn’t have any immigration experience prior to becoming an immigration judge,” he said, referring to the fact that Spencer was previously an attorney with the Public Utility Commission of Texas. He said she went through training which, “These days, includes being told that we don’t consider these to be really good cases.”
Sitting judges don’t talk to the media but Chase noted that they must consider the facts of each individual case, meaning the former Attorney General’s ruling doesn’t apply to all cases. He noted that some women who were victims of abuse are still winning asylum. He pointed to a case involving a Guatemalan woman who was raped by her boss. A Texas immigration judge found she did fit into a particular social group as a woman who defied gender norms, by taking a job normally held by a man.
During Josue and Esperanza’s trial, there was a lot of back and forth over their individual claims. A trial attorney from Immigration and Customs Enforcement questioned why Esperanza didn’t contact the police again after moving to another town, where she said her former partner continued to threaten her. Esperanza said it was because her brother chased him away and the police “don’t pay attention to you.”
The ICE attorney also asked Josue if his father was physically violent with anyone besides Esperanza. Josue said he did fight with other men. San Diego immigration lawyer Anna Hysell, who was previously an ICE trial attorney, said that could have hurt Esperanza’s case.
“The government was able to make the arguments that he didn’t target her because of being a woman that was in his relationship,” she explained. “He just was probably a terrible person and targeted many people.”
Hysell added that this was just her analysis and she wasn’t agreeing with the decision.
Attorney Anne Pilsbury said she believes Esperanza would have won her case, prior to the asylum ruling by Sessions, because she suffered years of abuse. But she said Josue would have had a more difficult time because gang cases were always tough. And like a lot of migrants, Josue had no evidence — he was too afraid to go to the cops. Pilsbury said immigration judges are even more skeptical now of gang cases.
“They’re getting so that they won’t even think about them,” she said. “They aren’t wrestling with the facts. They’re hearing gang violence and that’s it.”
She said Judge Spencer does sometimes grant asylum, and isn’t as harsh as other new judges. New York City’s immigration court used to be one of the most favorable places for asylum seekers. In 2016, 84 percent of asylum cases were granted. Today, that figure has fallen to 57 percent, according to TRAC at Syracuse University. Meanwhile, the government is forcing migrants to wait in Mexico for their immigration court cases or seek asylum in other countries before applying in the U.S., as the national backlog of cases exceeds one million.
Pilsbury, who founded Central American Legal Assistance in 1985, said immigration courts are now dealing with the result of a regional crisis south of the border that’s never been properly addressed since the wars of the 1980s.
“The anti-immigrant people feel it’s broken because people get to come here and ask for asylum and we feel it’s broken because people’s asylum applications aren’t seriously considered,” she explained. “We should be doing more to understand what’s going on in those countries and what we can do to help them address the chronic problems.”
Esperanza and Josue’s cases will now be appealed. Madison said she believes the judge ignored some of her evidence about gangs. She’s now turning to the Board of Immigration Appeals. However, it’s also controlled by the Justice Department — meaning the odds of getting a reversal are slim. If they lose again, the family can go to a federal circuit court which may have a broader definition of who’s eligible for asylum.
But Esperanza and Josue won’t be deported as long as their case is being appealed. On a late summer day, they seemed relaxed while sitting in a Brooklyn park. Esperanza talked about how happy she is that Josue is safe at his public high school, and can even ride a bike at night with his friends.
“He goes out and I’m always trusting the Father that just as he goes out, he comes back,” she said.
Even if they knew they would lose their asylum case, both said they still would have come to the U.S. because the risk of staying in Honduras was too great. Josue said the gang would definitely find him if he ever returned because their networks are so deep throughout the country. He’s now taking the long view. He knows there will be a Presidential election next year.
“It’s like a game of chess,” Josue said. “Any mindset can change at any moment. Maybe Trump changes his mind or maybe not. But I would have always made the decision to come.”
With translation assistance from Alexandra Feldhausen, Lidia Hernández-Tapia and Andrés O’Hara.
Beth Fertig is a senior reporter covering immigration, courts and legal affairs at WNYC. You can follow her on Twitter at @bethfertig.
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CORRECTION: An earlier version of this posting incorrectly identified Beth’s network affiliation. She reports for WNYC.
By clicking on the link at the top and going to Beth’s article on The Gothamist, you will be able to get a link to the original WNYC audio broadcast of this story.
It’s not “rocket science.” Better, fairer outcomes were available that would have fulfilled, rather than mocked, our obligation to provide Due Process and protection under our own laws and international treaties.
Here’s how:
Esperanza’s claim is a clear asylum grant for “Honduran women” which is both a “particular social group” (“PSG”) and a persecuted group in Honduras that the government is unwilling or unable to protect.
Although the last two Administrations have intentionally twisted the law against Central American asylum seekers, Josue has a clear case for asylum as somebody for whom opposition to gang violence was an “imputed political opinion” that was “at least one central reason” for the persecution. See, e.g,https://www.jeffreyschase.com/blog/2018/6/3/3rd-generation-gangs-and-political-opinion.
In any event, on this record, Josue clearly showed that he faced a probability of torture by gangs with the acquiescence of the Honduran government, and therefore should have been granted mandatory protection by the Immigration Judge under the Convention against Torture (“CAT”).
The Immigration Judge’s assertion that things are getting better for women in Honduras, one of the world’s most dangerous countries for women where femicide is rampant, not only badly misapplies the legal standard (“fundamentally changed conditions that would eliminate any well founded fear”) but is also totally disingenuous as a factual matter. See, e.g.,https://www.nytimes.com/interactive/2019/04/05/opinion/honduras-women-murders.html.
Additionally, Honduras remains in a state of armed conflict. See, e.g.,https://www.tandfonline.com/doi/full/10.1080/23740973.2019.1603972?needAccess=true. Under an honest Government, granting TPS to Hondurans (as well as Salvadorans and Guatemalans affected by environmental disasters heightened by climate change) would be more than justified.
Under honest Government following the rule of law, well-documented cases like this one could be quickly granted by the USCIS Asylum Officer or granted on stipulation in short hearings in Immigration Court. Many more Central Americans could be granted CAT relief, TPS, or screened and approved for asylum abroad. They could thereby be kept off of Immigraton Court dockets altogether or dealt with promptly on “short dockets” without compromising anybody’s statutory or constitutional rights (compromising individual rights is a “specialty” of all the mostly ineffective “enforcement gimmicks” advanced by the Trump Administration).
Over time, the overwhelming self-inflicted Immigration Court backlogs caused by the Trump Administration’s “maliciously incompetent” administration of immigration laws (e.g., “Aimless Docket Reshuffling”) would be greatly reduced.
That, in turn, would allow the Immigration Courts to deal with cases on a more realistic timeline that would both aid rational, non-White-Nationalist immigration enforcement and provide real justice for those seeking protection under our legal system.
As I’ve said before, it’s not “rocket science.” All it would take is more honest and enlightened Government committed to Due Process, good court management, and an appropriate legal application of laws relating to refugees and other forms of protection. I doubt that it would cost as much as all of the bogus “enforcement only gimmicks” now being pursued by Trump as part of his racist, anti-migrant, anti-Hispanic agenda.
Poor judicial decision making, as well illustrated by this unfortunate wrongly decided case, not only threatens the lives of deserving applicants for our protection, but also bogs down an already grossly overloaded system with unnecessarily protracted litigation and appeals of cases that should be “clear grants.”
Contrary to the intentionally false “party line” spread by “Big Mac With Lies” and other corrupt Trump sycophants at the DHS and the DOJ, a much, much higher percentage, probably a majority, of asylum applicants from the Northern Triangle who apply at our Southern Border should properly be granted some type of legal protection under our laws if the system operated in the fair and impartial manner that is Constitutionally required. The Trump Administration aided by their sycophants and enablers, all the way up to the feckless Supremes, are literally “getting away with murder” in far, far too many instances.
Consequently, quickly identifying and granting relief to the many deserving applicants would be a more efficient, humane, and lawful alternative to the “Kill ‘Em Before They Get Here” deterrence programs being pursued by Trump, with the complicity of the Supremes, the Ninth Circuit, and some of the other Federal Circuit Courts who have been afraid to put a stop to the extralegal nonsense going on in our Immigraton Courts, detention centers (the “New American Gulag”), our Southern Border, and countries like Mexico, El Salvador, Guatemala, and El Salvador where we are basically encouraging extralegal abuses and gross human right violations against migrants. It will eventually come back to haunt our nation, or whatever is left of our nation after Trump and his gang of White Nationalist thugs, supporters, appeasers, apologists, and enablers, are done looting and destroying it.
