Category: Matter of W-Y-C-& H-O-B-

😎😎⚖️🗽📰 Dr. Triche Blog #1: Refugee Protection Resists Becoming the Weakest Link in Our Continuously Embattled “Rule of Law.”

 

😎😎⚖️🗽📰😎😎⚖️

Dr. Alicia Triche
Superlawyer, Co-Editor, immigrationcourtside.com
Memphis, TN

🗽📰

Featured cases:

Tista-Ruiz de Ajualip v. Garland, 114 F.4th 487 (6th Cir. 2024)

Al Otro Lado v. Mayorkas, ___ F.4th ___, 2024 WL 4551637 (Oct. 23, 2024).

 

MEANINGLESS WORDS. …It is almost universally felt that when we call a country democratic we are praising it: consequently the defenders of every kind of regime claim that it is a democracy, and fear that they might have to stop using that word if it were tied down to any one meaning… George Orwell, Politics and the English Language.

I draft this first Courtside during a pivotal moment in US History.  Readers can barely power up any screen, anywhere, without seeing dire warnings that the “rule of law” is on the ballot; that the “rule of law.”  Hangs on a string.  But, those who advocate for the integrity of US refugee law have seen that string threaten to come unraveled for almost a decade.  And in this first of blogs, I offer two unequivocal rays of hope.  In two of its most vulnerable places—possibly even the most unlikely of places—the fragile thread has endured; the rule of law has held fast.

When I reference this “rule of law,” I’m invoking the idea that “words are supposed to carry meanings,” and great “danger lies in straining a text beyond the outermost limits of its natural elasticity.”[i] When words lose meaning, we don’t have rule of law, we have rule of people, with all that implies. At its core, protection for US refugees is not people-based; it is statutory.  It is comprised not by executive or political policies, but in the words of the US Immigration and Nationality Act.  Yet, as the subject of “immigration” endures focus-glare equal to the Eye of Sauron, in a constant stream of press, litigation, and politicization, the legal nature of the words in the statute become ever more vulnerable to deterministic and bad-faith interpretation.

Because they involve some of the most controversial aspects of current immigration law—that is, the arrival and protection of the most vulnerable of the world’s refugees—the words at issue in today’s two cases are particularly vulnerable to political appropriation.  As seen in our first case, Tista-Ruiz de Ajualip, survivors of severe domestic violence seek protection from persecution on account of “membership in a particular social group,” which is referenced at INA Section 101(a)(42)(A).  The phrase originated in the 1951 United Nations Convention Relating to the Status of Refugees,[ii]  and it is well known among scholars that its definition was not meaningfully discussed during drafting history of the Convention.  Indeed, it was not until the final drafting phase, at the Geneva Conference, that the Swedish delegate, Monsieur Petren, proposed (without further explanation) that “membership of a particular social group” should be added to the definition of refugee.[iii]  The amendment did pass, but the transcriber of the summary records indicates no discussion whatsoever regarding what “particular social group” meant to the delegate who approved its addition.[iv]

This flexible nature of the language of “particular social group” has a good side, for it has made room for the phrase to be interpreted consistently with developing human rights norms, especially regarding the rights of women.  Our illustrious Courtside founder, when he was Chairman of the BIA, initiated the use of the phrase for gender-based protection in the landmark case Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).  As Judge Schmidt explains it, Kasinga constructed a PSG that the Board, sitting en banc, was willing to accept as a whole.  And, key to the case was the central tenet that “FGM can be a basis for asylum.”  21 I&N Dec. at 358.

Years later, after ongoing advocacy by Karen Musalo, Deborah Anker and others, PSG also became the vehicle through with the Board (in effect) ruled that severe domestic violence, when sufficiently unchecked by the State, may be a legitimate ground for asylum.  Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).  But, especially in the domestic violence context, the case “law” regarding PSGs was vulnerable to an ongoing, seemingly endless parade of developing rules and “interpretations,” many of which seemed to defy the normal rules of logic.[v]  In 2018, the Board sacked refugee attorneys with an affirmative duty to articulate their PSGs—or lose them—in Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).  This has led to attorneys regularly providing 5, 10 or even more “particular social groups,” in effort to provide the one an Immigration Judge might hook onto.  It has led to PSG formulations that might sound less than perfect, to put it mildly, such as the “Salvadoran women of childbearing age” proposition that unexpectedly led to the good result in Zometa-Orellana v. Garland, 19 F.4th 970 (6th Cir. 2021).  And, most importantly for this Blog, it has provided an opportunity for some executive adjudicators at EOIR to engage in decision making that arguably crosses the line from legal to political, divorcing too far from the words at hand, the words contained in the law itself.

This is why what the Sixth Circuit did a few weeks ago in Tista-Ruiz de Ajualip is so very remarkable.  The Court’s central holding is that the group “victims of domestic violence” does not, on its face, violate what’s known as the “circularity” rule.  The reasoning of the Court is what’s so remarkable, for it constitutes a strong assertion of integrity of the rule of law in the refugee context.  The Court holds that no PSG can be dismissed “in a perfunctory manner,” solely by looking at the words used in formulating it.  114 F.4th at 498. Invoking Zometa-Orellana’s emphasis on “international obligations”, the Court says that any PSG analysis must utilize an independent review of the record “as a whole”, including country conditions.  Id..

The case doubles down on what I (frankly) thought was the most vulnerable aspect of Zometa-Orellana v. Garland: that the point of a domestic-violence based adjudication is to comply with US “international obligations” to protect refugees (id. at 498) (italics in original (!)) The Court also repeats that failure to “exactly delineate a convoluted legal concept” (i.e., PSG), is not a grounds for denial of refugee protection (id. at 501), and that there is an “independent role” (read, power) for BIA and Immigration Judges to assess domestic-violence based claims consistently with international obligations—particularly during assessment of the proposed PSG. (id. at 500–502.)  In other words, the Court doubles down on the admonition that had already been implied in Zometa-Orellana: refugee law, is, law; the words contained therein are not to be used as a pretext to deny protection to domestic violence survivors who otherwise qualify as refugees under the CSR; and if the ”decision” being reviewed seems to do so, it will be reviewed, substantively, for signs of having crossed that line.

A final note for any advanced PSG practitioners who might be tuned in—there’s a good argument, in my opinion, that Tista-Ruiz can be invoked to assert that, as long as any one PSG is offered up in compliance with W-Y-C-/H-O-B-, , the IJ and/or the Board can delineate any cognizable group that it finds to exist on the record.  It’s worth remembering here that, in Kasinga, the PSG formulated by the Board, was “very similar to” but not the exact “formulation suggested by the parties.”  21 I&N Dec. at 365.

In these blogs, I do intend to stay in my own lane, which is individual removal defense.  But I can’t help noting that, as I went to press on this one, the Ninth Circuit also issued Al Otro Lado v. Mayorkas, ___ F.4th ___, 2024 WL 4551637 (9th Cir. 2024).  The case is a complex, substantial class-action suit that is deserving of its own individual treatment in another context.  But it also contains at least one prime example of a Court giving meaning to words.  The Ninth Circuit stood fast in the language and purpose of the INA, even in the context of border arrivals—the group in the hottest of flames under Sauron’s eye. Under INA Section 208(a)(1), any non-citizen “who arrives in the United States…may apply for asylum” under INA Section 208(a)(1).  In one of several controversial iterations of a “metering” program, Ports of Entry run by US Customs and Border Patrol had been sending arriving asylum seekers back into Mexico, claiming they had not yet “arrived” in the country.  The Ninth Circuit “conclude[d] that a noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under” § 208(a)(1). Al Otro Lado v. Mayorkas, ___ F.4th ___, 2024 WL 4551637, *10 (Oct. 23, 2024)

One of the intrepid litigators of Al Otro Lado, Melissa Crow, issued a statement in reaction to the decision, and I will let her observations take us out:

“Our government has a legal duty to provide a fair and meaningful legal process to all people seeking safety at our border, no matter what. Border agents cannot arbitrarily turn people back to Mexico, a practice that violates our laws, exacerbates chaos at the border, and places refugees directly in harm’s way.”[vi]

 

[i] Ben Saul, Defining Terrorism in International Law 55 (2006) (citations omitted).

[ii] July 28, 1951, 189 U.N.T.S. 150.  The US is bound by Articles 2 through 34 as a party to the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 606 U.N.T.S. 267 (‘Protocol’).  A Convention refugee is a person who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion…is unable or…owing to such fear, is unwilling to return” home.  CSR Art. 1A(2).

[iii] Terje Einarsen, “Drafting History of the 1951 Convention and the 1967 Protocol”, in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary 37, [52] (2011), citing UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Twenty-second Meeting, 26 November 1951, A/CONF.2/SR.22, available at: http://www.refworld.org/docid/3ae68cde10.html [accessed 11 April 2016].

[iv] See id. at [52]-[54].

[v] See, e.g., Karen Musalo, A Short History of Gender Asylum in the United States: Resistance and Ambivalence May Very Slowly Be Inching Towards Recognition of Women’s Claims, Refugee Survey Quarterly, Vol. 29, No. 2 (2010); Blaine Bookey, Gender-Based Asylum Post-Matter of A-R-C-G-: Evolving Standards and Fair Application of the Law, 22 SW J. Intl. L 1, 4 (2016).  In addition, BIA decisions were and are subject to direct alteration by the Attorney General, and in 2018, Jeff Sessions blatantly attempted to end “claims pertaining to domestic violence or gang violence perpetrated by non-governmental actors” as a grounds for asylum.  Matter of A-B-I, 27 I&N Dec. 316, 310 (A.G. 2018), vacated, Matter of A-B-III-, 28 I&N Dec. 307 (A.G. 2021).

[vi] <https://ccrjustice.org/home/press-center/press-releases/ninth-circuit-upholds-rights-asylum-seekers-rules-metering> (accessed Oct. 27, 2024).

 

Related posts:

  1. ☠️END MISOGYNY 🤮@ EOIR, NOW! — Gorelick & Miller-Muro Are Right, But Abused Refugee Women’s Lives⚰️ Can’t Wait For Congress! — Judge Garland Must Bring Justice ⚖️ To Dysfunctional EOIR Now! — It’s Not Rocket Science! 🚀
  2. ⚖️🗽🧑🏻‍⚖️👩‍💼 MODELING EOIR’S POTENTIAL IN DENVER! — Judge Brea C. Burgie & Attorney Alexandra Katsiaficas Show How Good Judging & Effective Advocacy Can Combine For A Gender-Based Asylum Grant To Female Refugee From El Salvador!
  3. NDPA STALWART JASON “THE ASYLUMIST” DZUBOW 🌟 QUOTED IN AP ARTICLE ABOUT REPEAL OF A-B- & L-E-A-!
  4. 🔮PROPHETS: MORE THAN SEVEN MONTHS AGO, “SIR JEFFREY”🛡 & I SAID IT WOULD TAKE MORE THAN HOLLOW PROMISES IN AN E.O. TO BRING JUSTICE  FOR VICTIMS OF GENDER VIOLENCE! — Sadly, We Were “Right On” As This Timely Lament From CGRS Shows!

THE FURTHER EXPLOITS OF “OUR GANG” – 5th Circuit Grants Oral Argument In Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ)!

“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:

Good morning, all:  The Fifth Circuit has granted oral argument for the week of February 4 in Canterero-Lagos v. Whitaker the appeal of the BIA’s decision Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ).  Our group filed an amicus brief in that case (there was a second amicus brief on behalf of legal service providers).  Lead counsel emphasized the importance of the amicus briefs in convincing the Circuit court to grant oral argument, which OIL opposed, arguing that the case was not of particular interest and that W-Y-C- did not constitute a change in existing law.

Best, Jeff

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Thanks Jeff for passing this along! And special thanks to all of our retired colleagues who make this effort so special and effective and to the amazingly talented and dedicated pro bono advocates who help us be “heard in court.”

Even from our angle, we can see that “great representation makes a difference.” If it makes that much of a difference to retired Immigration Judges trying to be “heard,” just imagine what a difference it makes to those actually appearing in U.S. Immigration Court to literally “plead for their lives!”

That’s why this Administration’s “strategy” of using waiting lists, illegal orders, inhumane detention, family separation, expedited removal, skewed credible fear interviews, and so-called “review before an Immigration Judge” where counsel, even if present, isn’t even allow to speak, to prevent competent representation and fair presentation of claims is such an outrageous abuse of Due Process!

We are still in the early stages of fully exposing the jaw-dropping extent of these abuses to Article III Judges, Congress, and the public! And, we (and our successors and allies in the NDPA) won’t rest until the U.S. Government is finally forced to live up to its cynically abandoned promise of making U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all!”

No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”

PWS

12-14-18

Related posts:

  1. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  2. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  3. JUSTICE PREVAILS AGAIN IN IMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

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

Related posts:

  1. GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!
  2. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  3. DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

HON. JEFFREY CHASE: In-Depth Analysis Of “Our Gang’s” Amicus Brief In Matter of W-Y-C- & H-O-B-

https://www.jeffreyschase.com/blog/2018/5/28/amicus-brief-filed-in-w-y-c-h-o-b-appeal

Amicus Brief Filed in W-Y-C- & H-O-B- Appeal

On May 23, an amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on behalf of a group of 13 former immigration judges (including myself) and BIA members in the appeal of the BIA’s precedent decision in Matter of W-Y-C- & H-O-B-.  In that decision, a three-judge panel of the BIA held that an asylum applicant must clearly delineate its proposed particular social group before the immigration judge.  The Board held that the asylum applicant may not alter the social group formulation on appeal to the BIA, citing the “inherently factual nature of the social group analysis.”

Our brief argues that the Board’s reasoning is flawed.  The Board has held that the determination of whether a particular social group is cognizable is a question of law which the Board may review de novo.  Our brief also points out that the Board’s arguments as to why it will generally not consider a new group on appeal overlooks the fact that it has done just that in the past.

One member of our group, former BIA chairperson Paul W. Schmidt, was the author if the Board’s 1996 landmark decision in Matter of Kasinga, the first BIA precedent to grant a gender-based asylum claim.  Two other members of our group, former Board Members Gus Villageliu, and Lory D. Rosenberg,  respectively joined in the majority opinion and wrote a concurring opinion in Kasinga.  As the three pointed out in the drafting process, the particular social group that the Board approved in that case was neither delineated before the IJ nor proposed by either party on appeal.  It was crafted for the first time by the Board itself, in a manner that was consistent with the factual record below and which allowed the Board to grant relief. The three noted that the ability of the Board itself to alter the group’s contours is often necessary to allow an en banc Board to reach consensus.

Our brief also pointed to the Board’s decision in Matter of M-E-V-G- to remand the record where “the respondent’s proposed particular social group has evolved during the pendency of his appeal.”  We also point out how circuit courts have frequently cited to the Board’s decades-long practice of clarifying proposed groups.

Our brief additionally underscores the extreme complexity of particular social group formulation, particularly in light of the highly-criticized additional requirements of particularly and social distinction imposed by the Board in recent years.  We note that group delineations will often be made by pro se respondents, often with a limited mastery of English, sometimes in detained facilities with limited access to counsel or law libraries.

This was the sixth Amicus brief filed by our group.  We are most thankful for the outstanding assistance of attorneys Jean-Claude Andre and Katelyn Rowe of the law firm of Sidley Austin for lending their assistance pro bono for the second time in the drafting of our group’s brief.  We also acknowledge the distinguished counsel for the respondents, led by Fatma Marouf of Texas A&M Law School, Geoff Hoffman of the University of Houston Law Center, and Deborah Anker of Harvard Law School.

The link to our full brief is here:  http://immigrationcourtside.com/wp-content/uploads/2018/05/Cantarero-Amicus-Brief.pdf

The cooperation and assistance of so many brilliant minds and caring hearts is a source of great comfort in these challenging times.

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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It’s a privilege to be part of a team with Jeffrey and my other colleagues. Unfortunately, however, the all-out assault on Due Process, fundamental fairness, and human decency by Trump & Sessions means that we’re busy all the time.

PWS

05-29-18

Related posts:

  1. ROUND TABLE NEWS:  Getting The Due Process Message Across — 9th Cir. Orders Regime To Respond To Round Table’s Amicus Briefs in Matter of A-B- Challenges!
  2. WITH HELP FROM GIBSON DUNN, “GANG OF 16” RETIRED US IMMIGRATION JUDGES FILES AMICUS BRIEF OPPOSING AG’S INTERFERENCE IN MATTER OF A-B-
  3. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

WITH HELP FROM SIDLEY AUSTIN (LA), “OUR GANG” OF RETIRED IJs WEIGHS IN WITH 5th CIR. AGAINST BIA’S WRONG-HEADED PRECEDENT IN Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018)!

Cantarero – Amicus Brief

Thanks to “Our Heroes” Jean-Claude Andre and Katelyn N Rowe of Sidley Austin LPP, LA:

 

HERE’S THE TITLE PAGE AND TOC:

No. 18-60115

In the United States Court of Appeals for the Fifth Circuit

WENDY YESSENIA CANTARERO LAGOS & HENRY OMAR BONILLACANTARERO,

Petitioners,

v.
JEFFERSON B. SESSIONS, III, UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, BIA Nos. A206-773-719 & A206-773-720

AMICI CURIAE BRIEF OF RETIRED IMMIGRATION JUDGES AND FORMERMEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OFPETITIONERS AND VACATUR AND REMAND

page1image4161444496page1image4161444768page1image4161445808page1image4161446144

Jean-Claude André
Katelyn N. Rowe
Sidley Austin LLP
555 West Fifth Street, Suite 4000 Los Angeles, CA 90013

(213) 896-6007 jcandre@sidley.com krowe@sidley.com

Counsel for Amici Curiae

May 23, 2018

TABLE OF CONTENTS

Identity and Interest of Amici Curiae ……………………………………………… 1

ARGUMENT …………………………………………………………………………………3

  1. Because particular social group jurisprudence is unduly
    complex and applicants face various access-to-justice
    barriers, Immigration Judges and Board Members will
    frequently clarify an applicant’s proposed particular social
    group ……………………………………………………………………………………. 9
  2. The decision below disregards prior precedent in which Immigration Judges and Board Members have clarified an applicant’s proposed particular social group or allowed an applicant to present a revised particular social group on
    appeal ………………………………………………………………………………… 21
  3. This Court should vacate the decision below because its ambiguous holding will encourage Immigration Judges to be intolerant of applicants’ efforts to revise their PSGs and will enable the Board to issue boilerplate decisions denying relief ….. 28

CONCLUSION ……………………………………………………………………………. 31 APPENDIX …………………………………………………………………………… App. 1

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT

In their decades of experience on the bench, amici regularly assisted applicants in the process of clarifying their proposed PSGs.Amici also allowed applicants to present revised PSGs during their administrative appeals. This judicial practice has afforded Board Members the flexibility to engage in an independent, meaningful review of the evidentiary record and provide appropriate relief to applicants based on revised PSGs. See, e.g., Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (granting the applicant asylum based on a revised PSG that the Board itself formulated). In light of the complexity of PSG jurisprudence and the various access-to-justice barriers that applicants must navigate in immigration court, it is essential that the judicial practice of clarifying PSGs is not chilled by the decision below. See, e.g.,Ardestani v. INS, 502 U.S. 129, 138 (1991) (noting “the complexity of

3

immigration procedures, and the enormity of the interests at stake . . . .”).

Because PSG cognizability is a legal determination, amici believe that Immigration Judges and Board Members are obligated to consider any potential PSG that is supported by the factual record—even if the PSG is being proposed for the first time on appeal. PSG clarification is consistent with the requirement that administrative immigration decisions “must reflect meaningful consideration of the relevant substantial evidence supporting the alien’s claims.” Abdel-Masieh v. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal quotations and citations omitted); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 390-91 (BIA 2014) (“The question whether a group is a ‘particular social group’ within the meaning of the Act is a question of law that we review de novo.”). In this way, the judicial practice of clarifying an applicant’s PSG to match the evidentiary record falls squarely within the traditional roles of impartial administrative immigration tribunals. SeeUNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 16 (2011) (“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared . .

4

. .”); Matter of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997) (“Although we recognize that the burden of proof in asylum and withholding of [removal] cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”). Importantly, Amici did not receive reproach from the Board for clarifying proposed PSGs. Nor were amici overturned by circuit courts on the basis that the Board should not consider newly revised PSGs on appeal.

Amici believe that the decision below, Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), if affirmed by this Court, will constitute a significant departure from the current judicial practice of PSG clarification. The Board held that it “generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.” (AR 3) This decision completely ignores an important reality of the immigration court system: that Immigration Judges and Board Members have frequently clarified applicants’ proposed PSGs.

HERE’S THE “CAST OF CHARACTERS:”

APPENDIX BIOGRAPHIES OF AMICI CURIAE

The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has also worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.

The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as

App. 1

the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable George Chew was appointed as an Immigration Judge in 1995 and served until 2017, when he retired. He also previously served as a trial attorney for the former Immigration and Naturalization Service in New York from 1979 to 1981.

The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former

App. 2

president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past Board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. After retiring from the bench, he became the Managing Partner of Joyce and Associates and has 1,500

App. 3

active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of theBoard of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid &

App. 4

Defender Association from 2002 until 2004. Prior to her appointment to the Board, she worked from 1991-1995 as Director of the Legal Action Center at the American Immigration Law Foundation, was in private practice, and was the 1982 co-founder of the asylum and legal program at Centro Presente in Cambridge, Massachusetts. She is the author ofImmigration Law and Crimes, and was an adjunct professor of law and taught immigration law at American University Washington College of Law between 1997 and 2004. An excerpt from one of Judge Rosenberg’s separate opinions was quoted by the United States Supreme Court in its 2001 decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Judge Rosenberg has served as a member of the International Association of Refugee Law Judges, an elected member of the Board of Governors of AILA, a Board Member of the Federal Bar Association, Immigration Law Section. She also frequently lectures and trains immigration attorneys on current topics of complexity, including asylum and refugee law, human rights, and the intersection of criminal and immigration law. Judge Rosenberg is the founder of the Immigration Defense and Expert Advocacy Solutions (IDEAS) Consulting and Coaching, LLC, where she provides legal mentoring, consulting, and personal and

App. 5

business coaching for immigration lawyers. She currently serves as Senior Attorney and Advisor for the Immigrant Defenders Law Group, PLLC.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for AILA and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served

App. 6

as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986-1987, 1979-1981) and Deputy General Counsel (1978-1987). He also worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. Judge Schmidt practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice

App. 7

Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review and helped manage FOIA, Privacy, and Security as EOIR Records Manager until he retired in 2011. Before becoming aBoard Member, Villageliu was an Immigration Judge in Miami and oversaw both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu was a member of the Iowa, Florida, and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, he joined the Board of Immigration Appeals as a staff attorney in January 1978 and specialized in war criminal, investor, and criminal alien cases.

App. 8

The Honorable Polly Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, Judge Webber practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. Judge Webber also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School.

The Honorable Robert D. Weisel served as an Immigration Judge in the New York Immigration Court from 1989 until his retirement at the end of 2016. Judge Weisel was an Assistant Chief Immigration Judge, supervising court operations both in New York City and New Jersey. He was also in charge of the nationwide Immigration Court mentoring program for both Immigration Judges and Judicial Law Clerks. During his tenure as Assistant Chief Immigration Judge, the New York court initiated the first assigned counsel system within the Immigration Court’s nationwide Institutional Hearing Program.

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

A warm welcome to our good friend and colleague Judge (and former Assistant Chief Immigration Judge)  of the U.S. Immigration Court in New York, NY!

Due Process Forever!

PWS

05-25-18

 

Related posts:

  1. WITH HELP FROM GIBSON DUNN, “GANG OF 16” RETIRED US IMMIGRATION JUDGES FILES AMICUS BRIEF OPPOSING AG’S INTERFERENCE IN MATTER OF A-B-
  2. “GANG” OF RETIRED US IMMIGRATION JUDGES IMMEDIATELY CONDEMNS LATEST OUTRAGEOUS ATTACK ON ASYLUM LAW, DUE PROCESS, & HUMAN RIGHTS BY SESSIONS IN MATTER OF A-B-!
  3. RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!
  4. THE LATEST FROM THE HON. JEFFREY CHASE: “Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker” — PLUS: A Link To The Actual Brief! — MATUMONA V. SESSIONS, 10th Cir.

HON. JEFFREY CHASE: Matter of W-Y-C- & H-O-B- & The Unresolved Tension In Asylum Adjudication! – Plus My Added Commentary On EOIR Training!

https://www.jeffreyschase.com/blog/2018/2/4/the-proper-role-of-immigration-judges-as-asylum-adjudicators

The Proper Role of Immigration Judges as Asylum Adjudicators

I would like to expand on the topic raised in my response to the BIA’s recent precedent decision in Matter of W-Y-C- & H-O-B-.  In the U.S. system, what tensions exist between an immigration judge’s role as an independent judge within an adversarial system, and his or her overlapping role as an adjudicator of asylum claims?

As we all know, the 1980 Refugee Act was enacted to put the U.S. in compliance with the 1951 Convention on the Status of Refugees (to which the U.S. acceded through the 1967 Protocol).  For that reason, numerous courts through the years have found the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status to provide “significant guidance in construing the Protocol” and a useful instrument “in giving content to the obligations the Protocol establishes,” as the U.S. Supreme Court stated in INS v. Cardoza-Fonseca.  The BIA has referenced the UNHCR Handbook in at least ten precedent decisions, as have numerous circuit courts.

Paragraphs 66 and 67 of the Handbook state the following:

66. In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail.

67. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect… (emphasis added.)

Not surprisingly, this approach is employed by the USCIS Asylum Office.  Created in the implementation of the 1990 asylum regulations, the office’s first director, Gregg Beyer, previously worked for UNHCR for more than 12 years.  The Asylum Officer Basic Training Manual (“AOBTM”) on the topic of nexus states that although the applicant bears the burden of proving nexus, the asylum officer has an affirmative duty to elicit all relevant information, and “should fully explore the motivations of any persecutor involved in the case.”  The AOBTC therefore directs the asylum officer to “make reasonable inferences, keeping in mind the difficulty, in many cases, of establishing with precision a persecutor’s motives.”

The AOBTC also cites the 1988 BIA precedent decision in Matter of Fuentes.1  In that case, the Board held that “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible.  However, an applicant does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of” a protected ground.

In Canada, the Immigration and Refugee Board takes the view that “it is for the Refugee Division to determine the ground, if any, applicable to the claimant’s fear of persecution.”  The U.S. is unusual, if not unique, among western nations in not also delegating this responsibility to immigration judges. Also, note that the IRB references the “Refugee Division;” like many countries, Canada’s equivalent of immigration courts is divided into immigration and refugee divisions, in recognition of the special obligations and knowledge that asylum determinations require.  The U.S. immigration court system does not have a separate refugee determination division; asylum claims are heard by the same judges and under the same conditions as all other types of immigration cases.  Furthermore, as noted above, U.S. immigration judges hear cases in an adversarial setting, in which judges assume a passive, neutral role.

The role of asylum adjudicator carries responsibilities that are at odds with the the role of neutral arbiter.  Asylum adjudicators are required to share the burden of documenting the asylum claim; the UNHCR Handbook at para. 196 states that “in some cases, it may be for the examiner to use all of the means at his disposal to produce the necessary evidence in support of the application.”2  And, as discussed above, once the facts are ascertained, it is the adjudicator who should identify the reasons for the feared persecution and determine if such reasons bear a nexus to a protected ground.

During the Department of Justice’s asylum reform discussions in the early 1990s, Gregg Beyer stated that the idea of separate asylum judges was considered, but ultimately rejected.  To my knowledge, EOIR has never conducted an in-depth analysis of the conflicts between the judge’s responsibilities as an asylum adjudicator and his or her role as a neutral arbiter in adversarial proceedings.  I discussed the Board’s incorrect holding in Matter of W-Y-C- & H-O-B- under which genuine refugees may be ordered returned to countries where they will face persecution because the asylum applicants lacked the sophistication to properly delineate a particular social group, a complex legal exercise that many immigration attorneys (and immigration judges) are unable to do.  The problem also extends to other protected grounds.  Would an unrepresented asylum applicant (who might be a child) understand what an imputed political opinion is?  Would most asylum applicants be able to explain that actions viewed as resisting the authority of a third-generation gang such as MS-13 might constitute a political opinion?  Regulations should be enacted making it the responsibility of immigration judges to consider these questions.  Additionally, immigration judges, BIA Board Members and staff attorneys should be required to undergo specialized training to enable them to identify and properly analyze these issues.

Notes:

1. 19 I&N Dec. 658 (BIA 1988).

2. See also the BIA’s precedent decision in Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), which I have referenced in other articles.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

 

fullsizeoutput_40da.jpeg

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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Jeffrey points out the pressing need for better “specialized training” in asylum adjudication for Immigration Judges at both the BIA and Immigration Court levels. Sadly, however, DOJ & EOIR appear to be moving in exactly the opposite direction.

  • Last year, notwithstanding the addition of many new Immigration Judges and retirement of some of the most experienced Immigraton Judges, DOJ cancelled the nationwide Immigration Judge Conference, the only “off the bench” training that most Judges get.
  • Cancellation of the annual training conference or resort to ridiculously amateurish “CD training” was a fairly regular occurrence in the “Post-Moscato Era” (post-2000) of EOIR.
  • Too often so-called “asylum training” at EOIR was conducted by DOJ Attorneys from the Office of Immigration Litigation (“OIL”), Board Members, or Board Staff. The emphasis was basically on “how to write denials that will stand up on appeal” rather than how to recognize and grant legally required protection.
  • Immigration Judges with “special insights” into the situation of asylum seekers seldom were invited to be speakers. For example, one of my most distinguished colleagues was Judge Dana Leigh Marks of the San Francisco Immigration Court. Judge Marks successfully represented the applicant in the landmark U.S. Supreme Court case INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)  (as the INS Deputy G.C. & Acting G.C. I was helping the Solicitor General with the “losing argument” in behalf of my “client.”) Cardoza-Fonseca established the “well founded fear” standard for asylum and probably is the most important case in the history of U.S. asylum law. Yet, I never remember hearing Judge Marks on any panel at the Annual Conference, let alone one dealing with asylum.
  • One notable exception were the “mandatory” presentations by the U.S. Commission on International Religious Freedom (“USCIRF”), an independent Government agency. Led by Senior Advisor on Refugee Issues Mark Hetfield (now President and CEO of HIAS) the USCIRF provided examples of bias in asylum adjudication and explained how Immigration Judges and the BIA sometimes erred by filtering religious claims through our “Americanized Judeo-Christian prism” instead of taking time to understand the unique conditions affecting religion and religious freedom in each country.
  • There was never much positive follow-up on the USCIRF observations. I was probably one of the few Immigration Judges who regularly consulted and discussed the reports and findings of the USCIRF in my decision-making (even many experienced asylum advocates often overlooked this invaluable resource).
  • I remember at my “Immigration Judge Basic Training” in 2003 being told to prepare for the fact that most of my “oral decisions” would be asylum denials. I was skeptical then and found that quite to the contrary, the majority of asylum cases that got to Individual Hearing in Arlington were eminently “grantable.” Pretty much as I had unsuccessfully argued for years with my colleagues while I was on the BIA. For the most part, the U.S. Courts of Appeals eventually reaffirmed much of what my long-since banished “dissenting colleagues” and I had been saying all along about the overly restrictive application of U.S. asylum law by the BIA and many U.S. Immigration Judges.
  • There is absolutely nothing in the recent anti-asylum campaign (based on distorted narratives, no facts, or just plain intentional misinformation) by Attorney General Jeff Sessions and EOIR leadership that would lead me to believe that any type of fair, professional, properly balanced asylum training for Immigration Judges and BIA Appellate Immigration Judges is in the offing.
  • All of this adds up to the pressing need for the elimination of USDOJ control over the U.S. Immigration Courts, the creation of an independent U.S. Immigration Court, and the restructuring of the Immigration Courts into a true Due Process oriented court system, rather than a mere “whistle-stop on the deportation railroad!”

PWS

02-05-18

Related posts:

  1. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  4. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

MAKING GONZO PROUD: BIA TRASHES DUE PROCESS FOR PSG ASYLUM SEEKERS IN NEW PRECEDENT Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018) — Read Hon. Jeffrey’s Chase’s Commentary Here!

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Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018)

BIA HEADNOTE:

“(1) An applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.

(2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.”

PANEL: BIA Appellate Immigraton Judges MALPHRUS, MULLANE, and LIEBOWITZ

OPINION BY: Judge Garry D. Malphrus

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The Impact of the BIA’s Decision in Matter of W-Y-C- & H-O-B-

In Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018), the Board of Immigration Appeals held that “an applicant seeking asylum…based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.”  My question is: “why?”

Delineating a particular social group is very complicated, even for experienced immigration lawyers.  When I put together the advanced asylum panel for the 2016 Immigration Judges’ legal training conference, an asylum specialist from the Department of Justice’s Office for Immigration Litigation (“OIL”) chose to lecture the immigration judges on a common error in the crafting of proposed social groups.  It is worth noting that OIL (which defends immigration judge decisions when they are appealed to the U.S. circuit courts) felt that immigration judges needed such instruction.   Prior to this decision, the BIA had issued 8 precedent decisions defining particular social groups since 2006.  Two of those decisions (issued in 2014) were required in order to clear up confusion caused by the language of the previous four decisions on the topic.

When describing the concept of asylum to non-attorney clients, I have completely given up on trying to explain to them what a particular social group is.  I’ve noticed that during asylum interviews, the DHS asylum officers have reached the same conclusion; they simply ask the asylum applicants if they were a member of “a group,” with no attempt to explain the unique properties of particular social groups.  Let’s also remember that there are many unaccompanied children applying for asylum, and that some are not represented because EOIR has opposed efforts to require the agency to assign them counsel.

The impact of requiring asylum applicants to clearly delineate such a complex term of art is significant.  Many of the “surge” cases filed by individuals fleeing violence in Central America are asylum claims based on membership in a particular social group.  With some 660,000 cases presently overwhelming the immigration court system, the decision in W-Y-C- & H-O-B- should help speed adjudication by allowing immigration judges and the BIA to issue boilerplate denials where social groups are not clearly delineated, and further prevent time-consuming remands where better defined groups are proposed on appeal (perhaps after a pro se respondent was able to obtain counsel).  But at what cost is this efficiency achieved?

Our adversarial system presents court decisions as entailing a winner and loser.  However, there are no winners when someone entitled to asylum is nevertheless denied and ordered deported.  This point was underscored by a recent article in The New Yorker, documenting that for many, deportation is truly a death sentence (Sarah Stillman, “When Deportation is a Death Sentence,” Jan.18,2018 https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence).

In a recent blog post concerning the treatment of children in immigration court, I referenced Matter of S-M-J-, a BIA precedent decision from 1997 (21 I&N Dec. 722).  The decision contains the following words of wisdom:  “Although we recognize that the burden of proof in asylum and withholding of removal cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”  Noting the shift from the non-adversarial nature of affirmative Asylum Office  interviews (then a part of the INS, now within DHS) to the adversarial immigration court proceedings, the Board concluded that “a cooperative approach in Immigration Court is particularly appropriate.”

This approach underscores a major difference between asylum and other types of legal status.  A person applying for lawful permanent status through, for example, cancellation of removal or via an immigrant visa is not an LPR until they are granted such status by an immigration judge or DHS.  However, as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28, “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one.  He does not become a refugee because of recognition, but is recognized because he is a refugee.”

Paragraph 205 of the UNHCR Handbook delineates the duties of the asylum applicant and the adjudicator.  While the applicant’s duties involve truthfully providing detailed facts, supporting evidence where available, and “a coherent explanation of all of the reasons invoked” in his asylum application, the adjudicator, in addition to ensuring that the applicant presents his or her claim as fully as possible and then assessing credibility and evaluating the evidence, must also “relate these elements to the relevant criteria of the 1951 Convention, in order to arrive at the correct conclusion as to the applicant’s refugee status.”

It is this last requirement upon the adjudicator that is at odds with the Board’s decision in W-Y-C- & H-O-B-.  Under the decision, an asylum applicant may already have satisfied all of the refugee requirements (which of course includes establishing a well-founded fear of suffering persecution if returned to their country of nationality), yet be denied asylum and ordered deported to suffer serious harm simply because they lacked the legal sophistication to articulate a very complicated formula for delineating a particular social group.  Why wouldn’t the present Board invoke a cooperative approach as required by the nature of asylum and its international law obligations, as an earlier BIA did in Matter of S-M-J-?  Why shouldn’t the immigration judge (perhaps with assistance from the DHS attorney) step in where the applicant is not able and analyze the facts presented pursuant to the relevant case law to help formulate a particular social group (as some IJs do at present)?

In summary, the Board’s recent decision will allow immigration judges to deny asylum to credible applicants who clearly meet the refugee criteria.  By setting a nearly impossible standard for non-attorneys (including children) to meet, it can result in those deserving of protection being sent to countries where they may face rape, torture, or death.

Why?

Copyright 2017 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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OK. Let’s make this real simple. As opposed to asylum, which is discretionary, withholding of removal based on fear on account of a “particular social group” is mandatory relief under the Act.  The BIA is saying that even if the Respondent were entitled to mandatory withholding of removal based on a “particular social group,” they will refuse that mandatory protection if the respondent failed to articulate each and every specific element of the “PSG” before the Immigration Judge!

And, just how would unrepresented children and other unrepresented individuals, many in detention, be able to articulate all of the complex elements of a PSG? (And that’s even before the Trump/Gonzo/White Nationalist proposal to illegally strip undocumented children of any Due Process rights and let them be deported at will by CBP!)

Clearly, in Matter of W-Y-C-& H-O-B-, the BIA has abandoned any pretense its essential mission of “guaranteeing fairness and due process for all.” I’m sure that becoming “Conductors on Gonzo’s Deportation Railroad” will be career enhancing for the BIA Judges. But, in actuality, they should be ashamed!

And, what are the views of the other dozen or so BIA Appellate Judges who weren’t on this panel. Do they all agree with this travesty of justice? Is there nobody in this “Gang of 15” willing to stand up for Due Process and fairness for vulnerable asylum seekers? It raises the question of “Why have a BIA at all if it can’t and won’t protect fairness and due process for asylum seekers?”

I dissent!

PWS

01-26-18

 

 

Related posts:

  1. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations!