TAL @ CNN: Misogyny, Racism, White Nationalism, Intentional Child Abuse @ Heart of Trump/Sessions Ugly Restrictionist Immigration Policies!

Trump’s immigration policies have especially affected women and domestic violence victims

By: Tal Kopan, CNN

The Salvadoran woman could not escape her ex-husband’s abuse. Even after their divorce, he tracked her down in a town two hours away, raped her, and separately had a friend and his police officer brother threaten her directly. So she snuck into the US and applied for asylum.

Then Attorney General Jeff Sessions used her case to make it extremely difficult for her and women like her to get those protections.

The identity of the woman in the case remains anonymous. But her story is too familiar for the advocates and attorneys who work with thousands of immigrant women and immigrant women victims seeking the right to stay in the country.

Despite their stated objectives of cracking down on criminals and fraud, many of the Trump administration’s immigration policies have especially impacted the vulnerable and victims.

One policy change that could deter women victims from reporting their crimes takes effect Monday as the Senate deliberates whether to confirm Supreme Court nominee Brett Kavanaugh amid assault allegations against him, which he has vehemently denied.

Some of the changes were barely noticed. Others, like Sessions’ overhaul of asylum law, have generated numerous headlines.

But the sum total of those policies could put an already particularly vulnerable population even at risk, advocates who work with women say. And that could empower abusers and predators even further, they add, making everyone less safe.

The policies

A policy takes effect on Monday that could increase the risk of deportation for undocumented immigrant victims or witnesses of crimes. The agency that considers visa applications will begin to refer immigrants for deportation proceedings in far more cases, including when a person fails to qualify for a visa. The policy would also constrain officers’ discretion.

The new US Citizenship and Immigration Services policy specifically applies to visas designed to protect victims of violent crime and trafficking, including some created under the Violence Against Women Act. Those visas will give legal status to victims who report or testify about crimes.

The result: Victims who apply for the special visas but fall short, including for reasons like incomplete paperwork or missing a deadline, could end up in deportation proceedings. Previously, there was no guidance to refer all visa applicants who fall short to immigration court for possible deportation. Under the new policy, it’ll be the presumption. Advocates for immigrants worry the risk will be too great for immigrants on the fence about reporting their crimes.

In the Salvadoran woman’s case, Sessions ruled in June that gang and domestic violence victims generally don’t qualify for asylum, and the Department of Homeland Security applied those rules to all asylum seekers at the border and refugees applying from abroad.

Other policies that especially impact women and victims include:

More: http://www.cnn.com/2018/09/30/politics/trump-immigration-women-victims/index.html

 

 

‘I wouldn’t wish it even on my worst enemy’: Reunited immigrant moms write letters from detention

By Tal Kopan, CNN

The women say they were treated like dogs and told that their children would be given up for adoption. They lied awake at night, wondering if their kids were safe.

But even after being reunited with their children, they say their nightmare has not ended.

Their anguish is conveyed in a collection of letters written from one of the few immigrant family detention centers in the country, where some moms and children who were separated at the border this summer are now being held together while they await their fate. The mothers’ writings reflect a mix of despair, bewilderment and hope as they remain in government custody and legal limbo, weeks after they were reunited.

“My children were far from me and I didn’t know if they were okay, if they were eating or sleeping. I have suffered a lot,” wrote a mother identified as Elena. “ICE harmed us a lot psychologically. We can’t sleep well because my little girl thinks they are going to separate us again. … I wouldn’t want this to happen to anyone.”

The letters reflect the scars inflicted at the height of family separations this summer, when thousands of families were broken up at the border and kept apart for weeks to months at a time. They also reflect the ongoing uncertainty and emotional recovery for the families that are still detained.

The letters were collected at the Dilley detention center in Texas. They were provided via the Dilley Pro Bono Project by the Immigration Justice Campaign, a joint effort by leading immigrant advocacy and legal groups to provide access to legal support in immigrant detention centers.

The mothers speak with the Dilley Pro Bono staff in visitation trailers in the evenings and had expressed a desire to tell their stories to the public. The staff suggested writing them down, and the mothers agreed to write the letters, translated from Spanish, under pseudonyms.

More: https://www.cnn.com/2018/09/30/politics/separated-mothers-reunited-letters/index.html

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Yup. Don’t let all the BKavs commotion distract you from focusing on the daily intentional and gross abuses of human rights and fundamental decency being committed by the Trump Administration.

Think a partisan Trump sycophant like BKavs would ever impartially uphold the rule of law against the abuses of the Trump Administration, particularly when it comes to treatment of women? Not a chance! He’s being put on the Supremes because Trump & the GOP are confident of his predetermined extreme right-wing agenda, his lack of objectivity, and his demonstrated inability to think outside the “box of privilege” which has allowed him to succeed and prosper (often at the expense of others).

No more BKavs for America!

PWS

10-01-18

HON. JEFFREY CHASE: SOME IMMIGRATION JUDGES START PARTICIPATING IN THE SESSIONS/DHS ALL-OUT ATTACK ON DUE PROCESS BY SUBJECTING ASYLUM APPLICANTS TO AN UNAUTHORIZED “SUMMARY JUDGMENT PROCESS” TO DENY ASYLUM WITHOUT A HEARING – The Likely Result Of Yet Another Administration “Haste Makes Waste” Initiative – Massive Denials Of Due Process, Unlawful Removals, Lost Lives, Massive Remands From The “Real” Courts, Further Loss Of Credibility For The Immigration Courts, More Unnecessary Backlogs, Waste Of Taxpayer Funds – Hey, What’s Not To Like About Another Jeff Sessions Bogus White Nationalist Scheme?

https://www.jeffreyschase.com/blog/2018/6/24/are-summary-denials-coming-to-immigration-court

Are Summary Denials Coming to Immigration Court?

An attorney recently reported the following: at a Master Calendar hearing, an immigration judge advised that if on the Individual Hearing date, both the court and the ICE attorney do not believe the respondent is prima facie eligible for asylum based on the written submissions, the judge will deny asylum summarily without hearing testimony.  The judge stated that other immigration judges around the country were already entering such summary judgments, in light of recent decisions of the Attorney General.

I have been telling reporters lately that no one decision or policy of the AG, the EOIR Director, or the BIA should be viewed in isolation.  Rather, all are pieces in a puzzle.  Back in March, in a very unusual decision, Jeff Sessions certified to himself a four-year-old BIA precedent decision while it was administratively closed (and therefore off-calendar) at the immigration judge level, and then vacated the decision for the most convoluted of reasons.  What jumped out at me was the fact that the decision, Matter of E-F-H-L-, had held that all asylum applicants had the right to a full hearing on their application without first having to establish prima facie eligibility for such relief.  It was pretty clear that Sessions wanted this requirement eliminated.

Let’s look at the timeline of recent developments.  On January 4 of this year,  Sessions certified to himself the case of  Matter of Castro-Tum, in which he asked whether immigration judges and the BIA should continue to have the right to administratively close cases, a useful and common docket management tool.  On January 19, the BIA published its decision in Matter of W-Y-C- & H-O-B-, in which it required asylum applicants to clearly delineate their claimed particular social group before the immigration judge (an extremely complicated task beyond the ability of most unrepresented applicants), and stated that the BIA will not consider reformulations of the social group on appeal.  The decision was written by Board Member Garry Malphrus, a hard-line Republican who was a participant in the “Brooks Brother Riot” that disrupted the Florida ballot recount following the 2000 Presidential election.

On March 5, Sessions vacated Matter of E-F-H-L-.  Two days later, on March 7, Sessions certified to himself an immigration judge’s decision in Matter of A-B-, engaging in procedural irregularity in taking the case from the BIA before it could rule on the matter, and then completely transforming the issues presented in the case, suddenly challenging whether anyone fearing private criminal actors could qualify for asylum.

On March 22, Sessions certified to himself Matter of L-A-B-R- et al., to determine under what circumstances immigration judges may grant continuances to respondents in removal proceedings.  Although this decision is still pending, immigration judges are already having to defend their decisions to grant continuances to their supervisors at the instigation of the EOIR Director’s Office, which is tracking all IJ continuances.

On March 30, EOIR issued a memo stating that immigration judges would be subjected to performance metrics, or quotas, requiring them to complete 700 cases per year, 95 percent at the first scheduled individual hearing, and further requiring that no more than 15 percent of their decisions be remanded.  On May 17, Sessions decided Castro-Tum in the negative, stripping judges of the ability to manage their own dockets by administratively closing worthy cases.

On May 31, Castro-Tum’s case was on the Master Calendar of Immigration Judge Steven Morley.  Instead of ordering Castro-Tum deported in absentia that day, the judge continued the proceedings to allow an interested attorney to brief him on the issue of whether Castro-Tum received proper notice of the hearing.  Soon thereafter, the case was removed from Judge Morley’s docket and reassigned to a management-level immigration judge who is far less likely to exercise such judicial independence.

On June 11, Sessions decided Matter of A-B-, vacating the BIA’s 2014 decision recognizing the ability of victims of domestic violence to qualify for asylum as members of a particular social group.  In that decision, Sessions included headnote 4: “If an asylum application is fatally flawed in one respect, an immigration judge or the Board need not examine the remaining elements of the asylum claim.”  The case was intentionally issued on the first day of the Immigration Judges training conference, at which the need to complete more cases in less time was a repeatedly emphasized.

So in summary, within the past few months, the immigration judges have been warned that their livelihood will depend on their completing large numbers of cases, without the ability to grant continuances or administratively close cases.  They have had the need to hold a full asylum hearing stripped away, while at the same time, having pointed out to them several ways to quickly dispose of an asylum claim that until weeks ago, would have been clearly grantable under settled case law.

So where does all this leave the individual judges?  There has been much discussion lately of EOIR’s improper politicized hirings of immigration judges.  I feel that the above developments have created something of a Rorschach test for determining an immigration judge’s ideology.

The judges that conclude from the above the best practice is to summarily deny asylum without testimony are exactly the type of judges the present administration wants on the bench.  They can find a “fatal flaw” in the claim – either in the formulation (or lack thereof) of the particular social group, or in the lack of preliminary documentation as to the persecutor’s motive, the government’s inability to protect, or the unreasonableness of internal relocation, and simply deny the right to a hearing.  It should be noted that these issues are often resolved by the detailed testimony offered at a full merits hearing, which is the purpose of holding such hearings in the first place.

On the other hand, more thoughtful, liberal judges will find that in light of the above developments, they must afford more time for asylum claims based on domestic violence, gang threats, or other claims involving non-governmental actors.  They will conference these cases, and hear detailed testimony from the respondent, country experts, and other witnesses on the particular points raised by Sessions in Matter of A-B-.  They may consider alternative theories of these cases based on political opinion or religion.  They are likely to take the time to craft thoughtful, detailed decisions.  And in doing so, they will find it extremely difficult to meet the completion quotas set out by the agency with Sessions’ blessing.  They may also have their decisions remanded by the conservative BIA, whose leadership is particularly fearful of angering its superiors in light of the 2003 purge of liberal BIA members by then-Attorney General John Ashcroft.  The removal of Castro-Tum’s case from the docket of Judge Morley is clearly a warning that the agency does not wish for judges to behave as independent and impartial adjudicators, but rather to act in lockstep with the agency’s enforcement agenda.

There is another very significant issue: most asylum claims also apply for protection under Article III of the U.N. Convention Against Torture.  Unlike asylum, “CAT” relief is mandatory, and as it does not require a nexus to a protected ground, it is unaffected by the AG’s holding in A-B-.  So won’t those judges pondering summary dismissal still have to hold full hearings on CAT protection?  It would seem that a refusal to hold a full CAT hearing would result in a remand, if not from the BIA, than at the circuit court level.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Four Easy, Low Budget, Steps To A Better, Fairer, & More Efficient U.S. Immigration Court System:

  • Remove Jeff Sessions and all other politicos from control.
  • Restore Immigration Judges’ authority to “administratively close” cases when necessary to get them off the docket so that relief can be pursued outside the Immigration Court system.
  • Give Immigration Judges authority to set and control their own dockets, working with Court Administrators and attorneys from both sides (rather than having DHS enforcement policies essentially “drive the docket” as is now the case) to:
    • Schedule cases in a manner that insures fair and reasonable access to pro bono counsel for everyone prior to the first Master Calendar;
    • Schedule cases so that pleadings can be taken and applications filed at the first Master Calendar (or the first Master Calendar after representation is obtained);
    • Schedule Individual Hearings in a manner that will maximize the chances of “completion at the first Individual Hearing” while minimizing “resets” of Individual Hearing cases.
  • Establish a Merit Selection hiring system for Immigration Judges overseen by the U.S. Circuit Court in the jurisdiction where that Immigration Judge would sit, or in the case of the BIA Appellate Immigration Judges, by the U.S. Supreme Court.

No, it wouldn’t overnight eliminate the backlog (which has grown up over many years of horrible mismanagement by the DOJ under Administrations of both parties). But, it certainly would give the Immigration Courts a much better chance of reducing the backlog in a fair manner over time. Just that, as opposed to the Trump Administration’s “maximize unfairness, minimize Due Process, maximize backlogs, shift blame, waste money and resources” policies would be a huge improvement at no additional costs over what it now takes to run a system “designed, built, and operated to fail.”

PWS

06-25-48

THE GIBSON REPORT – JUNE 11, 2018 – Compiled By Elizabeth Gibson, Esquire, Of NY Legal Assistance Group

THE GIBSON REPORT 06-11-18

 TOP UPDATES

 

Bad News from Sessions Coming Today? (Possibly A-B-)

DOJ: Sessions Remarks at EOIR Training: “Today, exercising the responsibility given to me under the INA, I will be issuing a decision that restores sound principles of asylum and long standing principles of immigration law.”

 

From UC Hastings CGRS:

 

Tracking Court of Appeals Cases: CGRS has set up a system for tracking cases pending in the federal courts of appeals that may raise challenges to any ruling in Matter of A-B-. Depending on the scope of the AG’s forthcoming decision, this could include not only domestic violence claims but a range of other claims involving persecution by private actors. If you have a case on appeal that might fit this description, we kindly ask you to fill out this short survey.

 

Tracking Denials for Advocacy: In the event of a restrictive decision in A-B-, we will also be collecting information on compelling cases denied under A-B- at the Asylum Office and Immigration Court levels (not yet ripe for circuit court appeal) to highlight the devastating impact of the decision in the media and on the Hill. To report these outcomes if/when the time comes, please email us at CGRS-ABtracking@uchastings.edu.

 

In the meantime, contrary to commentary we have heard including from some Immigration Judges, Matter of A-R-C-G- remains good law. And we encourage you to continue bringing asylum claims involving domestic violence, documenting them well. To request assistance in your case and access to expert declarations and country conditions support, please fill out a request on our website here.

 

U.S. sending 1,600 immigration detainees to federal prisons

Reuters: U.S. authorities are transferring into federal prisons about 1,600 Immigration and Customs Enforcement (ICE) detainees, officials told Reuters on Thursday, in the first large-scale use of federal prisons to hold detainees amid a Trump administration crackdown on people entering the country illegally.

 

Immigration Court Backlog Jumps While Case Processing Slows

TRAC: The Immigration Court’s backlog keeps rising. As of the end of May 2018, the number of cases waiting decision reached an all-time high of 714,067. This compares with a court backlog of 542,411 cases at the end of January 2017 when President Trump assumed office. During his term the backlog has increased by almost a third (32%) with 171,656 more cases added.

 

Criminal Prosecutions for Illegal Border Crossers Jump Sharply in April

TRAC: Federal criminal prosecutions of individuals apprehended by Customs and Border Protection (CBP) along the southwest border with Mexico jumped 30 percent in April 2018 over March figures. Since January, criminal prosecutions were up 60 percent, rising from 5,191 in January to 8,298 in April.

 

ICE Releases Statement on New York’s Detainer Policy

ICE released a statement after conducting a three-month review of detainers lodged with the New York City Police Department and the New York Department of Corrections. ICE purported to find that it prepared 440 detainers and nearly 40 individuals who were released from custody, reoffended.

AILA Doc. No. 18060431

 

Taking Migrant Children From Parents Is Illegal, U.N. Tells U.S.

NYT: The Trump administration’s practice of separating children from migrant families entering the United States violates their rights and international law, the United Nations human rights office said on Tuesday, urging an immediate halt to the practice. The administration angrily rejected what it called an ignorant attack by the United Nations human rights office and accused the global organization of hypocrisy.

 

‘Mothers could not stop crying’: Lawmaker blasts Trump policy after visiting detained immigrants

WaPo: Although Seattle is some 1,500 miles north of the U.S.-Mexico border, the debate over family separations hit closer to home for the Evergreen State after dozens of undocumented immigrants were transferred last week to the Federal Detention Center in SeaTac, near Seattle-Tacoma International Airport. Nearly all of those migrants — 174 out of 206 — were women.

 

U.S. Immigration Officials Can Now Deport Hosts of Migrant Children

Pew: A new federal policy will allow federal agents to investigate, and possibly arrest and deport, families who step up to host children found at the border. It’s the latest in a series of enforcement actions by the Trump administration intended to discourage a new surge in unauthorized immigrants.

 

Immigrant arrested while delivering pasta to military base will get to stay in U.S. — for now

WaPo: A federal judge has given a last-minute reprieve to a New York restaurant worker who was fast-tracked for deportation this month after he showed up at an Army base with a delivery of pasta and the wrong type of ID.

 

Ohio Worksite Immigration Raid Ignores the Impact on the Local Community

AIC: More than 100 workers were arrested at a gardening and landscaping company in northern Ohio on Wednesday, marking another massive employment crackdown under the Trump administration.

 

Immigration firm seems to thrive after Trump lawyer’s help

AP: Some companies regret turning to Donald Trump’s personal attorney Michael Cohen for help, but a Florida immigration firm appears to have gotten nearly everything it wanted. When Nicholas Mastroianni II hooked up with Cohen last year, his business was threatened by a looming crackdown on a federal program offering foreigners visas if they invest in certain U.S. real estate projects. Cohen connected Mastroianni with a lobbying firm and, hundreds of thousands of dollars in payments later, Mastroianni appears to be in the clear.

 

Every Immigration Judge’s Asylum Grants and Denials from 2014 to 2018

A&J: Fresh off the FOIA press. Today, we received the following data on the total number of asylum grants and denials for each immigration judge from for each fiscal year from 2014 to 2018.

 

NY Court Update

SIJS Meeting: As an FYI, IJ Nelson apparently prompted DHS to de-designate a 6 year old UAC who lives with a parent/parents. Just a heads up to anyone with a UAC case before her.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Justice Department won’t defend DACA in Texas lawsuit

CNN: The DOJ argued in a legal filing late Friday that the DACA policy is unlawful and is “an open-ended circumvention of immigration laws.” The DOJ’s filing was in response to a lawsuit brought by Texas Attorney General Ken Paxton on behalf of seven states to the United States District Court for the Southern District of Texas. The states argue that former President Barack Obama’s initial creation of DACA in 2012 violated the Constitution and federal law.

 

Federal Judge Sides With Philly Over Sanctuary City Policy

NBC: In a decision that made Mayor Jim Kenney break out into song and dance, a federal judge ruled that the Trump administration cannot cut off grants to Philadelphia over how the city deals with undocumented immigrants.

 

ACLU, Immigrants’ Rights Groups Sue Trump Administration Over Census Citizenship Question

NYIC: The American Civil Liberties Union, New York Civil Liberties Union, and Arnold & Porter filed a federal lawsuit today on behalf of immigrants’ rights groups challenging the Trump administration’s plan to include a citizenship question on the 2020 census. The groups charge that Trump’s order intentionally discriminates against immigrants and thwarts the constitutional mandate to accurately count the U.S. population.

 

Asylum Seeker Files Lawsuit After CBP Officers Falsify Paperwork and Then Deport Him

AIC: An immigrant who was forced through a fast-track deportation at the border involving these unlawful practices sued CBP on Thursday. His deportation was based on paperwork that included fabricated answers, and he was never given the opportunity to apply for asylum. The case, filed in the U.S. District Court for the Southern District of Florida, seeks to hold CBP accountable for its negligence and unlawful practices.

 

District Court Finds Separating Migrant Parents and Children May Violate Due Process

A district court found that ICE’s alleged practice of routinely separating immigrant families held in detention may violate the constitutional right to family integrity and rejected the government’s jurisdictional challenge under INA §242(a)(2)(B)(ii). (Ms. L.; et al., v. ICE, 6/6/18) AILA Doc. No. 18060800

 

District Court Permanently Enjoins Federal Government from Withholding Byrne JAG Funding from Philadelphia

The U.S. District Court for the Eastern District of Pennsylvania permanently enjoined the AG from rejecting the city’s FY2017 application for Byrne JAG funding or withholding JAG funding based on certification of compliance with 8 USC §1373. (City of Philadelphia v. Sessions, June 6, 2018) AILA Doc. No. 17092265

 

Public Complaint Regarding Denver Contract Detention Facility’s Failure to Provide Medical and Mental Care

AILA and the American Immigration Council file a complaint with the DHS OIG, CRCL, ICE, and ICE’s Health Services Corps urging an investigation into the government’s longstanding and systemic failure to provide adequate medical and mental health care to immigrants detained at the Aurora Facility. AILA Doc. No. 18060430

 

CA2 Holds IJ Gave Undue Weight to Asylum Seekers’ Omission of Facts

The court granted petitions for review, after finding that IJs and the BIA erred by substantially relying on the fact that applicants for asylum and related relief testified during removal proceedings to certain details not included in their initial applications. (Gao v. Sessions, 5/25/18) AILA Doc. No. 18060833

 

CA9 Granted Petition for Rehearing in Case on “Crime of Domestic Violence” Under INA §237(a)(2)(E)

The court granted the petitioner’s petition for panel rehearing and the opinion filed on 9/14/17, which held that Arizona Revised Statutes §13-1203(A)(1) is a crime of violence under 18 USC §16(a), was withdrawn. (Cornejo-Villagrana v. Sessions, 5/30/18) AILA Doc. No. 17091560

 

BIA Finds Forced Labor to Be Material Support to a Terrorist Organization

BIA remanded the record after finding that the respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes provided aid to them. Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) AILA Doc. No. 18060730

 

BIA reopens for SIJS; encourages IJ to grant continuance (attached)

Cornell: BIA decision granting reopening for two children from Mexico so that they could file for one-parent SIJS. The decision contains some good language encouraging the IJ to grant a continuance. See attached.

 

USCIS Redesigns Citizenship and Naturalization Certificates

USCIS announced that on 6/4/18, it began issuing redesigned Certificates of Citizenship and Naturalization. Forms N-550, N-578, N-570, N-560A, N-560AB, N-645, N-645A, and N-561 were redesigned to better deter alteration and fraud and to make these documents more secure. AILA Doc. No. 18060434

 

USCIS Announces Re-Registration Period Is Now Open for Hondurans with TPS

USCIS announced that current beneficiaries of Temporary Protected Status (TPS) under Honduras’ designation who want to maintain their status through the termination date of 1/5/20, must re-register between 6/5/18 and 8/6/18. Re-registration procedures have been published in the Federal Register. AILA Doc. No. 18060538

 

DHS Notice of Proposed Rulemaking Regarding Immigration Bonds

DHS proposed two changes that would apply to surety companies certified by the Department of the Treasury to underwrite immigration bonds and their administrative appeals process. Proposed amendments would change 8 CFR Part 103. Comments are due by 8/6/18. (83 FR 25951, 6/5/18) AILA Doc. No. 18060531

 

DOJ Announces 311 New Assistant United States Attorney Positions

Attorney General Jeff Sessions announced that DOJ is allocating 311 new Assistant United States Attorneys to assist in priority areas, including 35 additional immigration prosecutors. This is the largest increase of new Assistant U.S. Attorney positions in decades.

AILA Doc. No. 18060534

 

EOIR FOIA Response: “No Dark Courtrooms” Policy

Obtained via FOIA by Hoppock Law Firm, EOIR released records related to its EOIR case management strategy, “No Dark Courtrooms.” Special thanks to Matthew Hoppock.

AILA Doc. No. 18060660

 

ACTIONS

 

 

RESOURCES

 

 

EVENTS

 

Celebrating Immigrant Heritage Month and Being Welcoming Is Good for You and Your Community

AIC: June is Immigrant Heritage Month, and given the shrill and often negative rhetoric we hear around immigration, it seems more important than ever to take time to appreciate our immigration history and what newcomers bring to our nation and our lives.

 

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Yup, it was “bad news” yesterday (although not unexpected) for everyone who cares about Due Process, Asylum Law, and human values.

PWS

06-11-18

 

HON. JEFFREY CHASE: PUNISHING THE PERSECUTED — In Matter of A-C-M-, BIA “Adjusts” View Of FMLN As Necessary To Deny Asylum To El Salvadoran Refugees!

Punishing the Victims: Matter of A-C-M-

On June 6, the BIA published its precedent decision in Matter of A-C-M-.  As the Board seems to no longer issue precedent decisions en banc, the decision is that of a divided three-judge panel.  The two-judge majority found the respondent to be barred from asylum eligibility because in 1990, she had been kidnaped by guerrillas in her native El Salvador, who after forcing her to undergo weapons training, made her do the group’s cooking, cleaning, and laundry while remaining its captive.

In 2011, an immigration judge granted the respondent’s application for cancellation of removal.  The DHS appealed the decision to the BIA, which reversed the IJ’s grant, finding that the respondent was ineligible for cancellation under section 212(a)(3)(B)(i)(VIII), which makes inadmissible to the U.S. anyone who has received military-type training from a terrorist organization.  The BIA stated in its 2014 decision that it found the guerrillas to be a terrorist organization at the time of the respondent’s abduction in 1990.

The case was remanded back to the immigration judge, where the respondent then applied for asylum, a relief from which she was not barred by the military training.  However, the IJ ruled that she was ineligible for asylum under another subsection of the law, which bars anyone who commits “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” for either the commission of a terrorist activity, someone who has committed or is planning to commit a terrorist act, or to a terrorist organization or member of such organization.

The respondent in A-C-M- clearly wasn’t providing her labor by choice; she was forcibly abducted by the guerrillas and was then held against her will.  However, the BIA decided in a 2016 decision, Matter of M-H-Z-, that there is no duress exception to the material support bar.  Therefore, in the Board’s view, the involuntary nature of the labor was irrelevant.

In her well-reasoned dissent, Board Member Linda Wendtland acknowledged a critical question: “whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.”  Note that the statutory language quoted above requires that the actor “knows or reasonably should know” that the support will aid a terrorist activity or organization.

The decision doesn’t name the guerrilla organization (presumably the FMLN).  It also fails to mention when the Board itself concluded that the group had been a terrorist organization in 1990.  The Board’s view of the guerrillas was not always so, as witnessed in its 1988 precedent decision in Matter of Maldonado-Cruz.  The case involved an asylum-seeker from El Salvador who had been kidnaped by guerrillas in that country, given brief military training, and then forced to serve in the group’s military operations.  He managed to escape, and legitimately feared that if returned to El Salvador, he would be killed by death squads the guerrillas dispatch to punish deserters.

The BIA denied asylum.  In doing so, it expressed the following rationale: “It is entirely proper to apply a presumption that a guerrilla organization, as a military or para-military organization, has the need to control its members, to exercise discipline.”  The Board noted that the guerrillas needed non-volunteer troops to fill out the military units required to fight against the government. It continued: “To keep them as cohesive fighting units they must impose discipline; and an important form of discipline…is the punishment of deserters.”

The Board’s language in Maldonado-Cruz really does not sound as if it is describing a terrorist organization.  Frankly, it’s tone wouldn’t sound out of place in describing the penalties imposed by the Park Slope Food Coop towards members who miss their shifts.  If the Board didn’t contemporaneously view the guerrillas as terrorists, why would they expect the respondent to have done so?

Judge Wendtland did not need to answer that question, because she convincingly argued that the respondent’s cooking and cleaning did not constitute “material support” under the statute.  She is correct. Notice the examples of support contained in the statutory language: safe houses, funds, transportation, weapons, explosives, and training. All of these are of a quite different nature from cooking, cleaning, and doing laundry.

The respondent in A-C-M- was not someone whom Congress intended to exclude under the anti-terrorism provisions.  She did not provide money or weapons to ISIS to carry out terrorist acts. To the contrary, she performed labor completely unrelated to any violent objective.  She was forced to perform such labor – in the words of Judge Wendtland, “as a slave” – for a group whose terrorist nature was far from clear.

In adopting the two-member majority’s view, the Board has chosen an interpretation of the statute that turns Congressional intent on its head by punishing the victims of terrorism, and adds insult to injury by labeling these victims as terrorists themselves.  Hopefully, the lone dissenting opinion will prevail on appeal.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

3rd-Generation Gangs and Political Opinion

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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The BIA has a long-standing history of finding ways to construe the law and facts to deny protection to refugees from Central America, one of the most violent areas in the world for decades.

Judge Linda Wendtland is one of the few BIA jurists since the 2003 “Ashcroft Purge” to stand up to her colleagues and  the Attorney General for the rights of Central American asylum seekers to fair treatment under the asylum laws.

As most of us familiar with Immigration Court and immigration enforcement know, the “material support” bar is very seldom used against real terrorists and security threats. Most caught up in its absurdly overbroad web are minor players — victims of persecution themselves or “freedom fighters” many of whom actually supported forces allied with or assisting the US Government.

Probably one of the biggest and most grotesque examples of “legislative overkill” in recent history. And, the BIA has made the situation much worse by construing the bar in the broadest, most draconian, and least reasonable way possible.

Moreover, the DHS waiver process is totally opaque compared with the Immigration Court process, thereby encouraging arbitrary and capricious decision-making that escapes any type of judicial review.

PWS

06-10-18

THREE FROM “TIRELESS TAL” @ CNN: 1) First, Salvadoran Women Was Forced To Perform Slave Labor By Salvadoran Guerrillas, Then The BIA Shafted Her; 2) Trump/Sessions Scofflaw Attack On “Sanctuary Cities” Stomped By Yet Another U.S. Judge; 3) GOP Continues Internal Immigration Negotiations!

http://www.cnn.com/2018/06/06/politics/woman-el-salvador-guerillas-ruling/index.html

 

Woman’s forced labor for Salvadoran guerillas means she must leave US, court rules

By Tal Kopan, CNN

She was kidnapped by Salvadoran guerillas three decades ago, watched her husband be killed and forced to cook and clean for the militants. Now she can’t stay in the US.

The main appellate body of the immigration courts issued a divided opinion Wednesday with broad implications, finding that a woman from El Salvador is ineligible for status in the US because her 1990 abduction and forced labor amount to “material support” of a terrorist organization.

According to the court documents, the woman was kidnapped by the guerillas in El Salvador and made to do the cooking and cleaning “under threat of death.” She was also “forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.”

Nevertheless, the 2-1 opinion holds that the woman’s coerced duties for the group constituted “material support” for a terrorist organization, and thus made her ineligible to be granted asylum or have her deportation order canceled in the US — though a lower court judge had ruled she would otherwise be eligible for such relief. The woman first came to the US illegally in 1991 but gained Temporary Protected Status — which is granted to countries that suffer natural disasters and other mass problems and was afforded to El Salvador for decades.

But she left the US and tried to return in 2004, when the government began deportation proceedings against her. Wednesday’s decision is the product of years of litigation regarding her case in the immigration courts — a judicial body for immigration-related claims run by the Justice Department.

Writing for the majority, Board of Immigration Appeals Judge Roger Pauley ruled that “material support” can be virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise would need to seek somewhere else.

“In fact, no court has held that the kind of support an alien provides, if related to promoting the goals of a terrorist organization, is exempt from the material support bar, and we discern no basis to import such a limitation,” Pauley wrote.

Pauley also concluded there was no exception for support given “under duress” under US law and the actions do not need to be “voluntary.”

Dissenting board member and Judge Linda Wendtland blasted the court’s interpretation, pointing out the relevant statute lists a number of examples of “material support” like offering safe houses, transportation, funds and other tangible furtherance of their mission.

“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. “Under the majority’s strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source.”

For the decision to be overturned, the woman in the case would have to appeal to a federal circuit court or succeed in persuading Attorney General Jeff Sessions — who serves as a functional one-man Supreme Court of the immigration courts — to intervene.

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Judge slaps Sessions, feds over ‘sanctuary cities’

By: Tal Kopan, CNN

A federal judge has once again rebuked the administration’s efforts to pressure so-called sanctuary cities, going further than any to date in using a recent Supreme Court decision to rule an existing federal law unconstitutional.

The ruling Wednesday from Judge Michael Baylson, a George W. Bush appointee, thus far applies only to his district in the Philadelphia area, but it could lay the groundwork for even more rulings that further limit what the administration can do to punish sanctuary cities — a key priority of the administration.

The decision relies, in part, on a May ruling from the Supreme Court on state gambling laws.

Baylson had already blocked the Justice Department from imposing new conditions on federal law enforcement grants that Philadelphia has received in the past, limiting his November ruling to the city, which had challenged the move by Attorney General Jeff Sessions. A federal judge in Chicago also has already blocked the new conditions nationwide, a ruling that was upheld in April by an appeals court. The effort from Sessions to impose the conditions had been an attempt to punish sanctuary cities after a federal judge in California had blocked the administration from pursuing broader funding threats.

More: http://www.cnn.com/2018/06/06/politics/sanctuary-cities-court-ruling-sessions-immigration/index.html

 

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House GOP immigration negotiations continue ahead of key Thursday meeting

By: Tal Kopan and Lauren Fox, CNN

House Republicans are bracing for a two-hour conference meeting Thursday morning on immigration, which could determine the fate of moderate members’ efforts to force a vote on several immigration bills.

“I think a lot of it hangs on that meeting tomorrow,” said Rep. Mia Love, R-Utah, who has signed a  House procedural maneuver — known as a discharge petition — that allows lawmakers to bypass leadership and force a vote on the floor if they can get a majority of members to sign on.

Ahead of that consequential gathering, the key leaders on the moderate and conservative sides of the issue were huddling with party leadership in Speaker Paul Ryan’s effort in hopes of reaching a consensus that could be presented to their colleagues in the morning.

On their way to the Wednesday meeting and earlier in the day, negotiators expressed optimism but were still far apart on the issue of establishing citizenship for recipients of the Deferred Action for Childhood Arrivals program.

More: http://www.cnn.com/2018/06/06/politics/immigration-daca-discharge-petition/index.html

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Tal’s range, depth, productivity, and readability are simply breathtaking! Don’t know how she does it, but I’m glad she does! I also love her description of Sessions as a “functional one-man Supreme Court.” Wish I’d thought of that one!

Thanks and kudos also to Tal’s terrific colleague Lauren Fox (below) who also is a “Courtside regular.”

PWS

06-06-18

STOMPING ON THE PERSECUTED! — BIA MAJORITY FINDS WAY TO USE “MATERIAL SUPPORT BAR” TO DENY PROTECTION TO THE VICTIMS OF PERSECUTION – Judge Linda Wendtland, Dissenting, Gets It Right! — Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018)!

MATTER OF ACM 3928_0

BIA HEADNOTE:

(1) An alien provides “material support” to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.

PANEL:  BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, & WENDTLAND

OPINION BY: JUDGE ROGER PAULEY

CONCURRING & DISSENTING OPINION: JUDGE LINDA WENDTLAND

KEY QUOTES FROM MAJORITY:

The Immigration Judge incorporated by reference the respondent’s credible testimony and all the documents submitted at her cancellation of removal hearing. In her August 8, 2016, decision, the Immigration Judge found that the respondent is ineligible for asylum and withholding of removal based on the material support bar in section 212(a)(3)(B)(iv)(VI) of the Act. The Immigration Judge stated that, but for the material support bar, she would have granted the respondent’s asylum application on humanitarian grounds pursuant to Matter of Chen, 20 I&N Dec. 16 (BIA 1989), noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed. However, the Immigration Judge granted the respondent’s request for deferral of removal pursuant to the Convention Against Torture.

KEY QUOTE FROM CONCURRING & DISSENTING OPINION:

In view of our relatively recent holding in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), that the material support bar contains no exception for duress, “it is especially important to give meaning to the statutory limit of ‘material.’ That term calls for [I]mmigration [J]udges, the Board, and the courts to strike a balance written into the Act.” Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). Individuals arriving in this country from “some of the most dangerous and chaotic places on earth . . . may not have been able to avoid all contact with terrorist groups and their members, but we should not interpret the statute to exclude on this basis those who did not provide ‘material’ support to them,” since “[m]any deserving asylum-seekers could be barred otherwise.” Id. Unlike the majority, which apparently would apply the bar without any meaningful limit, I would not decline to carry out our responsibility to strike the foregoing critical balance.

Nor do I believe that Congress intended to relegate the respondent, who did not afford support that qualifies as “material,” to the statutory waiver process under section 212(d)(3)(B)(i) of the Act, which is intended only for those individuals whose support did meet the threshold materiality requirement.2 And given my view that the respondent’s conduct does not come within the “material support” bar in the first place, I need not reach the question whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.

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Once again, faced with competing possible interpretations of the law, the BIA majority chooses the interpretation most unfavorable to the applicant. So, what else is new?

The majority judges engage in a wooden, lifeless, hyper-technical analysis, devoid of any obvious understanding of either the purpose of refugee laws or the actual human situation of refugees. By contrast, Judge Wendtland shows an understanding of both the human situation of refugees and undesirability and impracticality of construing the law so as to bar deserving refugees or force them to “jump through more hoops.”

Everybody actually agrees that “but for” this obtuse application of the law, this respondent deserves asylum! So, why not just take the readily available course of construing the ambiguous provision in favor of the applicant?  Why go out of the way to create bad law and hurt innocent individuals? Why would Congress have desired this absurdly unpalatable result?  And, I wouldn’t count on the USCIS under the policies of this Administration to grant a waiver in this case under their even more opaque and politicized processes.

This case also demonstrates a continuing practice of the BIA to render major precedents without considering the case en banc. How many of the other Appellate Immigration Judges agree with Judge Pauley’s decision? How many agree with Judge Wendtland? On which side are Chairman Neal and Vice Chair Adkins-Blanch?

We’ll never know, because today’s Board imposes life or death decisions on respondents and changes the course of the law while allowing the vast majority the Appellate Immigration Judges to hide in anonymity in their “Ivory Tower” chambers, without any accountability or taking any legal or moral responsibility for the decisions that they impose on others. It’s a national disgrace (originating with the bogus “Ashcroft reforms”) that must be changed for the BIA to once again become a credible appellate tribunal.

Due process and fairness to individuals are fictions in today’s broken and biased U.S. Immigration Court system. We shouldn’t pretend otherwise!

PWS

06-06-18