PROFESSOR STEPHEN LEGOMSKY IN USA TODAY: Gender Is Clearly a “Particular Social Group” – Congress Must Amend The Law To Insure That Neither Bureaucratic Judges Nor Political Hacks Like Sessions & His Ilk Can Deprive Women & LGBTQ Individuals Of The Protections They Need & Deserve!

https://www.usatoday.com/story/opinion/2019/01/02/gender-related-violence-grounds-asylum-refugee-women-congress-column/2415093002/

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

(Photo: Mario Tama/Getty Images)

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Our asylum laws have some gaping holes. These gaps endanger many groups, but none more so than women and girls who are fleeing domestic violence, honor killings, mass rape in wartime, gang rape by criminal gangs, and other gender-related violence. Congress must explicitly recognize gender-based persecution as a potential asylum ground.

Asylum requires a “well-founded” fear of being persecuted. But not just any persecution will do. The persecution has to occur for one of five specific reasons — your race, your religion, your nationality, your political opinion, or what the law calls your “particular social group.” Gender is notably missing from this list.

That omission is not surprising. U.S. asylum laws, like those of most other western countries, track the language of an international refugee convention that was adopted in 1951. Gender-related violence was simply not on the public radar at that time.

But it is now 2019. The historical excuse will no longer wash. With women’s marches, the MeToo movement, the Brett Kavanaugh confirmation process and women’s stunning midterm electoral successes, gender-related violence is now part of our national consciousness.

Read more commentary:

As a Syrian refugee in US, I watched my country collapse. But there is a path to hope.

Refugees at US-Mexico border are treated like criminals

Bring more refugees to America. They’ll fill vacant jobs and boost our economy.

Without specific congressional recognition of gender-based persecution, women and girls fleeing the most horrific violence imaginable have had to argue that they will be persecuted because of their “particular social group.” Today that is easier said than done. The nation’s highest administrative tribunal that decides asylum claims — the Justice Department’s Board of Immigration Appeals — has been adding more andmore roadblocks to asylum claims that are based on “particular social group.”

This was not always the case. In 1985, the board defined “particular social group” as one in which membership is “immutable.” Gender, of course, meets that definition.

The immutability test makes perfect sense. If you will be persecuted only because of an innocuous characteristic that you can easily change, then you don’t need asylum. But if that characteristic cannot be changed, you have no other practical way to protect yourself. The immutability test thus allows asylum for those who need it and withholds it from those who don’t.

Justice constraints are harmful, irrational

But the board could not leave well enough alone. Along the way it invented two additional requirements. One is “social distinction.” If you claim persecution because of your membership in a “particular social group,” you must now prove that your home society describes that class of individuals as a “group.” Second, you must now prove what the board calls “particularity.” By this it means you must prove that your home society can figure out whether hypothetical other individuals are members of the group.

There are only four problems with those requirements: The board has no convincing legal authority to impose them. No one really understands what they mean. They are nearly impossible to prove. And they make no policy sense: why should the U.S. decision whether to grant asylum to someone depend on whether her home society thinks of the particular class as a “group,” or on whether the home society can tell which other individuals belong to that “group”?

Last June, then-Attorney General Jeff Sessions made this bad situation worse. Overruling board precedent, he announced that, henceforth, anyone fleeing domestic violence (or, for that matter anyone fleeing gang violence) will “generally” be unable to prove either social distinction or particularity and therefore should be denied asylum. Although a federal court has blocked that decision for now, the Supreme Court will likely determine its ultimate fate.

But the problems go beyond that specific case. First, the artificial constraints that the board has imposed for all claims based on “particular social group” are both harmful and irrational. Second, it is only because gender is not on Congress’s list of specifically protected grounds that women and girls have had to fit their claims into “particular social group” in the first place.

Women would still prove need for asylum

What arguments could possibly be made for protecting people from racial or religious persecution but not from gender persecution?

Perhaps the fear is that domestic violence is too endemic, that allowing asylum would open the floodgates. We need not worry, for a woman or girl fleeing domestic violence has multiple legal burdens that minimize the numbers: She must prove that her fear is both genuine and well-founded, that the harm she fears is severe, that her government is unable or unwilling to protect her, that no place anywhere in her country would be safe, and — even if gender is added to the list — that the persecution will be inflicted because of her gender. These are all high bars, and proof requires meticulous, persuasive documentation. Canada has recognized domestic violence asylum claims since the 1990s, and no floodgates have opened.

The U.S. cannot singlehandedly eradicate all violence against women and girls — even here at home. But we can at least avoid being an accomplice. When women and girls arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors is not an option. Congress should restore the original meaning of “particular social group,” and it should recognize that gender, like race and religion, belongs in the list of specifically protected grounds.

Stephen Legomsky is a professor emeritus at the Washington University School of Law, the principal author of “Immigration and Refugee Law and Policy,” and the former Chief Counsel of US Citizenship and Immigration Services in the Obama Administration.

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Steve is absolutely right! This needs a legislative solution. And, while they are at it, Congress also needs to insulate the Immigration Court against future bureaucratic and political shenanigans by creating an independent Article I Immigration Court with a merit-based judicial selection system.

Not coincidentally, the BIA added the intentionally unduly restrictive “particularity” and “social distinction” (formerly “social visibility”) requirements (remarkably, without dissent or even full en banc treatment) only after a group of BIA Judges, including me, who understood both asylum law and women’s rights, and weren’t afraid to vote accordingly, had been removed by Attorney General Ashcroft in a bogus and disingenuous politically motivated “downsizing” following the election of President George W. Bush in 2000. Since then, asylum seekers generally have had a hard time finding justice at the “captive” and politically controlled BIA.

And, the situation has become critical following the tenure of the White Nationalist, misogynist political hack Jeff Sessions as Attorney General. Sessions abandoned even the pretense of fairness, deliberation, impartiality, and judicial temperament in his anti-asylum, anti-Due-Process, anti-women campaign to rewrite the law to fit his preconceived White Nationalist xenophobic agenda — one that he (understandably & fortunately) never was able to push through Congress during his tenure as a Senator.

PWS

01-04-19

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

WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE

“The Devil is in the Details.” Typical for this group of incompetents, nobody at DHS or in the Mexican Government actually appears to be ready to implement this “historic change.”
Expect chaos. After all, the ink wasn’t even dry on Judge Sullivan’s order in Grace v. Whitaker for USCIS to rewrite its credible fear “Policy Memorandum” to comply with law. Want to bet on whether the “credible fear” interviews in Mexico or at the border will be lawful? How about the reaction of Judge Sullivan if they ignore his order? (Nielsen and her fellow scofflaws might want to consult with Gen. Flynn on that one. This is one judge with limited patience for high level Government officials who run roughshod over the law, are in contempt of court, or perjure themselves.)
By screwing around with procedures, the Administration opens itself up for systemic challenges in more U.S. District Courts instead of being able to limit litigation to Courts of Appeals on petitions to review individual removal orders.
Every “panic attack” by this Administration on the rule of law and the most vulnerable energizes more legal opposition. And, it’s not just within the immigration bar and NGOs any more. “Big Law” and many of the brightest recent graduates of top law schools across the country are getting involved in the “New Due Process Army.”
By concentrating asylum applicants at a limited number of ports of entry, pro bono legal groups could actually find it easier to represent almost all applicants.
Representation of asylum seekers generally improves results, sometimes by as much as 5X.
It could be easier for individuals who are free and authorized to work in Mexico to obtain counsel and prepare their cases than it is for individuals detained in substandard conditions in obscure locations in the U.S.
Freed of the intentionally coercive and demoralizing effects of DHS detention, more applicants will be willing to fully litigate their claims, including taking available administrative and judicial appeals.
As more cases reach the Courts of Appeals (primarily in the 5th & 9th Circuits) more “real” Article III Judges will “have their eyes opened” to the absolute travesty that passes for “justice” and “due process” in the Immigration Courts under Trump.
Shoddily reasoned “precedents” from the BIA and the AG are already failing in the Article III Courts on a regular basis. Three “bit the dust” just within the last week. Expect this trend to accelerate.
The 5th and 9th Circuits will find their dockets overwhelmed with Not Quite Ready For Prime Time (“NQRFPT”) cases “dumped” on them by DOJ and EOIR and are likely to react accordingly.
The last massive assault on Due Process in Immigration Court by the DOJ under Ashcroft basically caused a “mini-rebellion” in the Article III Courts. There were numerous “remands for redos” and Circuit Court rulings harshly reversing and publicly criticizing overly restrictive treatment of asylum cases by Immigration Judges and the BIA, particularly in the area of credibility determinations. Expect the Circuit Courts to “reverse and revise” many of the current anti-asylum precedents from the BIA and the AG.
With almost universal representation, a level playing field supervised by Article III Courts, and all Immigration Judges actually forced to fairly apply the generous standards for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca, and by the BIA in the (oft cited but seldom actually applied) Matter of Mogharrabi, I wouldn’t be surprised to see grant rates for Northern Triangle applicants exceed 50% (where most experts believe they belong).
Overall, there’s a respectable chance that the end result of this ill-conceived policy will be an exposure of the rampant fraud, intellectual dishonesty, and disregard for the true rule of law in this Administration’s treatment of bona fide asylum seekers.
Inevitably, however, asylum seekers will continue to die in Mexico while awaiting hearings. DHS politicos probably will find themselves on a regular basis before enraged House Committees attempting to justify their deadly, cruel, and incompetent policies. This will be a “culture shock” for those used to the “hear no evil, see no evil” attitude of the GOP House.
The Administration appears to have “designed” another of their “built to fail” systems. If they shift the necessary Immigration Judges to the border, the 1.1 million backlog elsewhere will continue to mushroom. If they work on the backlog, the “border waiting line” will grow, causing extreme pressure from the Mexican Government, Congress, and perhaps the Article III Courts. Every death of an asylum seeker (there were three just within the last week or so) will be laid at DHS’s feet.

NOTE TO THE NDPA:

The outstanding historical analysis by Judge Emmet Sullivan in Grace v. Whitaker illustrates what we already know: For years, the Executive Branch through EOIR has been intentionally applying “unduly restrictive standards” to asylum seekers to artificially reduce the number of grants in violation of both the Refugee Act of 1980 and our international obligations. This disingenuous treatment has particularly targeted bona fide asylum seekers from the Northern Triangle, those asserting claims based on a “particular social group,” unrepresented individuals, women, and children.

Worse yet, this totally cynical and disingenuous Administration is using the intentionally and unlawfully “skewed system” and “illegal denials” as well as just downright fabricated statistics and knowingly false narratives to paint a bogus picture of asylum seekers and their lawyers as the “abusers” and the Government as the “defenders of the rule of law.” What poppycock, when we all know the exact opposite is the real truth! Only courageous (mostly pro bono) lawyers and some conscientious judges at both the Immigration Court and Article III levels are standing up for the real rule of law against a scofflaw Administration and its outrageous plan to send genuine refugees back into harm’s way.

Nowhere in the racially charged xenophobic actions and rhetoric of Trump, Sessions, and Whitaker, nor in the intentionally derogatory and demonstrably dishonest rhetoric of Nielsen, nor in the crabbed, intentionally overly restrictive interpretations of asylum law by today’s BIA is there even a hint of the generous humanitarian letter and spirit of the Refugee Act of 1980 and the 1951 UN Convention on Refugees or the “non-narrow” interpretation of “particular social group” so well described and documented by Judge Sullivan. On the contrary, we can well imagine folks like this gleefully and self-righteously pushing the refugee vessel St. Louis out to sea or happily slamming the door in the face of desperate Jewish refugees from Europe who would later die in the Holocaust.

Now is the time to force the Article III Courts and Congress to confront this Administration’s daily violations of law and human rights. We can develop favorable case precedents in the Article III Courts, block unethical and intentionally illegal interference by the Attorney General with Due Process in Immigration Court, and advocate changes in the law and procedures that will finally require the Executive Branch and the Immigration Courts to live up to the abandoned but still valid promise of “becoming the world’s best tribunals, guaranteeing fairness and Due Process for all.” And, the “all” certainly includes the most vulnerable among us: refugees claiming asylum!

In the end, through a combination of the ballot box, Congress, the Article III Courts, and informed public opinion we will be able to thwart the rancid White Nationalist immigration agenda of this Administration and return honest, reasonable Government that works within the Constitution and governs in the overall best interests of our country to the United States.

Thanks for all you do! Keep fighting the “good fight!”

Go for it!

Due Process Forever! Scofflaw Administration Never!

PWS

12-21-18

ASHCROFT EVISCERATED THE BIA – NOW SESSIONS PLANS TO POUND THE LAST NAIL INTO THE COFFIN! — Quotes BY “Our Gang” Member Judge Jeffrey Chase!

https://thehill.com/regulation/court-battles/412571-sessions-seeks-to-expand-power-on-immigration-cases

Lydia Wheeler writes The Hill:

Attorney General Jeff Sessions appears to be exploring a rule that would expand his judicial power, and that some say would allow him to drastically reshape federal immigration policy.

In a notice posted this fall, the Department of Justice (DOJ) announced it is planning to propose a change to the circumstances in which the attorney general can take and rule on immigration cases.

Under past practice, immigration experts say attorneys general have only stepped in to affirm or overturn cases once the Board of Immigration Appeals (BIA) has given a ruling. Such interventions by attorneys general have also been rare.

Under the new proposal, the attorney general could make rulings on immigration cases before they get to the BIA.

“It’s very disturbing,” said Thomas Saenz, president and general counsel at MALDEF, the Mexican American Legal Defense and Educational Fund.

He argued the proposed change, which was included in the fall semiannual regulatory agenda released by the White House, would give the attorney general too much power.

“This is an attorney general that has already demonstrated when he has done this under existing rules that he is biased, inhumane and, frankly, probably influenced by some racist views,” Saenz said.

DOJ spokeswoman Sarah Sutton called Saenz’s characterization “absurd and woefully ignorant.”

“It is widely acknowledged that our immigration system is broken and the attorney general has been steadfast in his pursuit of a lawful and functional immigration system where all Americans can thrive,” she said.

“The Department of Justice’s record demonstrates a commitment to the safety and security of all Americans while treating all persons with fairness and dignity. To suggest otherwise is to ignore facts.”

The notice in the regulatory agenda, which maps out agency actions for the coming year, said the cases where the attorney general could intervene would include “those pending before the Board of Immigration Appeals but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.”

Plans for the proposed rule were first listed on the spring regulatory agenda released in May. At that time, the expected release date was September 2018. The action has now been delayed until March.

Sessions has already been aggressive in getting involved with BIA cases even without the proposed rule change.

Since taking office in February 2017, Sessions has stepped in seven times after the BIA has made a decision, and offered five rulings — each adverse to the immigrant.

By comparison, the two attorneys general who served during former President Obama’s eight years in office took over just four cases, said Katrina Eiland, a staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project.

Rulings from the attorney general are enormously consequential because they set precedent for immigration judges to follow.

In June, Sessions essentially made it impossible for victims of domestic or gang violence to qualify for asylum by overturning a BIA decision to grant asylum to a Salvadoran woman who said she was a victim of domestic abuse.

“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote in his opinion.

Some have argued this authority to adjudicate immigration cases is a way for attorneys general to advance immigration policy.

Alberto Gonzales, who served as attorney general under former President George W. Bush, suggested in a 2016 Iowa Law Review article he co-wrote that it could have been a less controversial way for Obama to roll out his Deferred Action for Childhood Arrivals program.

“This authority, which gives the Attorney General the ability ‘to assert control over the BIA and effect profound changes in legal doctrine,’ while providing ‘the Department of Justice final say in adjudicated matters of immigration policy,’ represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations,” the article said, quoting a Fordham Law Review article written by Joseph Landau.

Jeffrey Chase, who served as an immigration judge and a senior legal immigration adviser at the BIA under former President Clinton, said the DOJ’s rule would give Sessions free range to change the law in whatever way he feels, whenever he wants.

He said it would bring the system into an era of uncertainty over what is settled law.

Unlike federal district and circuit courts that are part of the federal judiciary branch, immigration courts fall under DOJ control. Immigration judges are DOJ employees and do not serve lifetime appointments like federal district and circuit court judges.

Immigration advocates say Sessions has already taken steps to cut away at their judicial independence.

DOJ announced in an April memo obtained by The Wall Street Journal that it was setting quotas to expedite immigration cases and NPR Newsreported in May that Sessions had ordered judges to stop putting deportations on hold by closing out cases while immigrants apply for visas and green cards.

Immigration advocates say the plan in the regulatory agenda appears to be another step to further cut back their power.

“It appears to be another move to further control the immigration courts and that’s problematic for due process and fairness in giving immigrants a fair shake in their immigration proceedings,” Eiland said.

Chase said the good news, from his perspective, is the policies set through rulings from the attorney general can be easily undone by a new administration.

Still, experts are alarmed by what they see as a broader effort by Sessions to rewrite immigration law.

“It seems transparent the intent to allow the attorney general to manipulate and distort the process by short-circuiting the normal procedures in order to impose the outcome he seeks,” said Lucas Guttentag, who served as senior counsel to Secretary of Homeland Security under the Obama administration.

But there is a question as to whether DOJ can legally do what it’s planning.

“I don’t know if they’ll get away with it,” Saenz said. “I think there are limits to his discretion and this would probably be very troubling to a court because it circumvents the due process provided in the immigration system.”

Decisions from the BIA and final rulings from the attorney general can be appealed to a federal circuit court, but Chase said Sessions’s rulings have not been final. He has instead sent cases back to immigration judges for further action, which delays the opportunity to appeal.

“He’s been very clever about not leaving any case in a position where it could be [directly] appealed,” Chase said.

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

So, Sessions proposes to essentially strip the BIA of its authority to render major legal precedents. Their primary role would become insuring that U.S. Immigration Judges “toe the White Nationalist lines” laid down by Sessions or his successors. So much for the “expertise” of the BIA or the importance of developing policies through case-by-case litigation. I guess Sessions’s “precedents” have all been “cooked” in advance by restrictionist groups. No need to pay attention to facts or legal arguments that conflict with Sessions’s long-held racist-restrictionist views on immigration.

Session’s proposed “takeover” of the BIA’s appellate functions also raises some interesting issues:

In view of his political statements, can he function as an independent quasi-judicial adjudicator in individual cases? Article IIIs have applied judicial rules of conflict and disqualification to individual IJs and BIA Members. (Indeed, I seem to remember a case in which an Article III got upset because then-Chair Dave Milhollan unwittingly voted in a case that had passed through Appellate.Counsel while he was at INS.) If IJs or BIA Members made political statements and prejudgements of pending issues they would be disqualified from individual cases. Why not Sessions? Judges are not supposed to have prosecutorial roles. But Sessions clearly fancies himself the “chief prosecutor!”
Since he isn’t a true “independent quasi-judicial adjudicator,” and has no particular expertise in immigration adjudication, why should Sessions get Chevron deference?
He’ll probably be gone soon. But, that doesn’t mean his successor will abandon the restrictionist immigration agenda. Indeed, it is almost inconceivable that Trump would nominate anyone who is not a committed White Nationalist restrictionist as a replacement.

Meanwhile, what’s the purpose of an appellate board whose primary function appears to be rubber stamping one-sided political decisions?

PWS

10-24-18

PROFESSOR MAUREEN SWEENEY ON WHY THE BIA DOESN’T DESERVE “CHEVRON” DEFERENCE – JEFF SESSIONS’S ALL OUT ATTACK ON THE INDEPENDENCE OF THE IMMIGRATION JUDICIARY IS EXHIBIT 1!

http://lawprofessors.typepad.com/immigration/2018/08/immigration-article-of-the-day-enforcingprotection-the-danger-of-chevron-in-refugee-act-cases-by-mau.html

Go on over to ImmigrationProf Blog at the above link for all of the links necessary to get the abstract as well as the full article. Among the many current and former Immigration Judges quoted or cited in the article are Jeffrey Chase, Ashley Tabaddor, Dana Marks, Lory Rosenberg, Robert Vinikoor, and me. (I’m sure I’m missing some of our other colleagues; it’s a very long article, but well worth the read.)

In an article full of memorable passages, here is one of my favorites:

Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the Department of Justice is not equipped to fully understand. The agency’s fundamental commitment to controlling unauthorized immigration does not allow it a neutral, open position on asylum questions. The foundational separation and balance of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to deport and must provide robust review to fully enforce the congressional mandate to protect refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in ensuring the full enforcement of all of our immigration law—including those provisions that seek to ensure compliance with our international obligations to protect individuals facing the danger of persecution.

This is a point that my friend and colleague Judge Lory Rosenberg made often during our tenure together on the BIA. All too often, her pleas fell on deaf ears.

The now abandoned pre-2001 “vision statement” of EOIR was “to be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Nothing in there about “partnering” with DHS to remove more individuals, fulfilling quotas, “sending messages to stay home,” securing the border, jacking up volume, deterring migration, or advancing other politically motivated enforcement goals. Indeed, the proper role of EOIR is to insure fair and impartial adjudication and Due Process for individuals even in the face of constant pressures to “just go along to get along” with a particular Administration’s desires to favor the expedient over the just.

Under all Administrations, the duty to insure Due Process, fairness, full protections, and the granting to benefits to migrants under the law is somewhat shortchanged at EOIR in relation to the pressure to promote Executive enforcement objectives. But, the situation under the xenophobic, disingenuous, self-proclaimed “Immigration Enforcement Czar” Jeff Sessions is a true national disgrace and a blot on our entire legal system. If Congress won’t do its job by removing the Immigration Courts from the DOJ forthwith, the Article III courts must step in, as Maureen suggests.

PWS

08-23-18

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!

Jun 9 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.

JEFF CHASE

Jun 3 3rd-Generation Gangs and Political Opinion

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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

LATEST FROM TRAC: IMMIGRATION COURT SYSTEM COLLAPSING UNDER EXPLODING BACKLOG AS TRUMP/SESSIONS “DISSING” OF DUE PROCESS, BLATANT POLITIZATION, INCOMPETENT ADMINISTRATION, AND “GONZO” ENFORCEMENT POLICIES TAKE HOLD — Backlog Soars By An Amazing 32% In Just Over One Year Since Sessions Assumed Control — Now An Astounding 714,000 – Sessions’s Wrong-Headed Actions Geared To Push It Over ONE MILLION With No Sensible End In Sight!

Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. 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.

The pace of court filings has not increased – indeed, case filings are running slightly behind that of last year at this time. What appears to be driving the burgeoning backlog is the lengthening time it now takes to schedule hearings and complete proceedings in the face of the court’s over-crowded dockets.

For example, cases that ultimately result in a removal order are taking 28 percent longer to process than last year – up from 392 days to an average of 501 days – from the date of the Notice to Appear (NTA) to the date of the decision. And compared with the last full fiscal year of the Obama administration, cases resulting in removal take an average of 42 percent longer.

Decisions granting asylum or another type of relief now take over twice as long as removal decisions. Relief decisions this year on average took 1,064 days – up 17 percent – from last year.

Wait times in Houston, San Antonio, Chicago, Imperial (California), Denver, and Arlington (Virginia) now average over 1,400 days before an immigrant is even scheduled for a hearing on his or her case. At many hearing locations hearings are currently being scheduled beyond 2021 before an available slot on the docket is found.

To read the full report, including how long at each court hearing location current cases are waiting before their hearing is scheduled, go to:

http://trac.syr.edu/immigration/reports/516/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through May 2018. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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Wow! The “One Man Supreme Court” is also a “One Man Wrecking Crew” trying his best to bring down the entire U.S. justice system with his remarkable mix of bias, ignorance, cruelty, political grandstanding, and just plain old incompetence. To my knowledge, he’s never run anything larger than a modest sized U.S. Attorney’s Office, and not everyone who worked with him then was enamored by the way he handled that job. In fact, he was so bad that members of his own party his own party helped block him from a U.S. District Judge position because of his perceived racial bias and lack of ability to deal fairly with minorities.

All of this while, the GOP Congress just sits back and “ho hums” about the mess they have created and allowed to fester in the DOJ and their lack of meaningful oversight over Sessions’s destructive, often dishonest, actions and gross mismanagement!

And, destroying the U.S. Immigration Courts is by no means the last or least of his efforts. According to Richard Morosi’s “banner headline top story” in today’s Los Angeles Times, Sessions & Co have so overloaded the U.S. District Courts along the border with non-violent misdemeanor immigration offenders that those courts 1) don’t have time for more serious offenders, major fraudsters, and other real criminals; and 2) are abandoning their values and independence to produce what one former senior prosecutor, Charles La Bella, termed “turnstyle justice” (“not what the federal courts were meant to do”). It’s so horrible that one long-time U.S. District Judge has already quit because he couldn’t take the wanton wastefulness, stupidity, and inhumanity of it all. You can check out Morosi’s full article here: http://enewspaper.latimes.com/infinity/article_share.aspx?guid=aec32f3c-e756-4d4a-acbc-f7e451bd9d87

In other words, Sessions is compromising the actual safety and security of the United States and threatening the integrity of our U.S. Court System to indulge his own racist, xenophobic desire to punish “regular folks, dishwashers, landscapers . . .people who are coming to pick fruit or find menial work to send money back home.”

At least the Chief U.S. District Judge trying to deal with this mess has included defense attorneys along with judges and prosecutors in his new “case management committee.” Compare that with the Immigration Courts, where Sessions, his DOJ politicos, and administrative bureaucrats in Falls Church manage the cases from afar, based solely on political and enforcement considerations. The U.S. Immigration Judges who actually hear the cases, the hard-working (largely pro bono) defense attorneys, and even the local ICE prosecutors are effectively “frozen out” of the system for setting priorities and managing cases. I’ll wager that there is no other court system in the United States that attempts to operate in this bone-headed and obviously counterproductive manner!

Under Sessions, more judges = more backlog! That militates against Congress throwing any more judges, money, and personnel into this mess until the Immigration Courts are removed from the DOJ, a long, long overdue move.

How do you build more backlog with more judges? First, by demoralizing and effectively forcing out some of the most experienced and fairest judges and replacing them with “newbies,” Sessions reduces judicial legal expertise, productivity, and independence, at least in the short run.

Second, by trashing the very promising “prosecutorial discretion” program undertaken by ICE prosecutors with the encouragement and cooperation of the Immigration Judges, he forces “low priority” cases into the court system at the expense of the more difficult and complex cases that then get pushed to the end of the line. Astoundingly, Sessions’s recent legally flawed “beat down” of “Administrative Closing” virtually guarantees that several hundred thousand low priority “closed” cases will be returned to the courts’ active dockets in the near future, thus artificially pushing the backlog beyond 1,000,000!

This is known as “Aimless Docket Reshuffling.” It started under Obama, but has accelerated dramatically under Sessions. This is essentially what is happening with Sessions’s irresponsible prosecution of minor misdemeanants over in the U.S. District Courts along the border.

Third, and this jumped out from the TRAC report, it now takes much longer to complete cases, particularly asylum case and other cases granting relief, because they are all contested by ICE and Sessions is actively trying to “jack” the law against respondents, particularly asylum applicants. A wise Attorney General actually committed to the job of justice for all in America and responsible use of taxpayer-funded resources would work cooperatively with prosecutors, defense attorneys, and Immigration Judges within existing precedents favorable to asylum applicants to encourage “pretrial” of the many well-documented, meritorious asylum cases and other cases for relief (like cancellation of removal) now unnecessarily clogging the dockets so that they could be granted relief on “short-block dockets” by Immigration Judges. In other cases, they could be closed and removed from the docket to pursue alternative forms of relief at USCIS. This would be a great way of attacking the backlog without running over anyone’s Due Process rights! But, that’s not what Sessions is interested in.

Not only are asylum cases becoming unnecessarily complex and time-consuming under Sessions, but his apparent plan to intentionally misconstrue U.S. asylum law to disadvantage bona fide applicants in favor of his restrictionist agenda and personal biases against asylum seekers, women, and Central Americans is almost sure to result in many “losers” for the Government in the Courts of Appeals. This, in turn, is likely to result in massive returns for “do-overs” — just as happened during the Due Process disaster than occurred following the “Ashcroft Purge” of the BIA in 2003!

PWS

06-08-18

Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

Matter of Ding

BIA HEADNOTE:

(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.

PANEL: BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, WENDTLAND

OPINION BY: Judge Roger A. Pauly

DISSENTING OPINION: Judge Patricia A. Cole

KEY QUOTE FROM MAJORITY:

We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).

KEY QUOTE FROM DISSENT:

I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.

The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”

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Judge Cole’s dissent makes sense to me. Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.

While constructions of immigration statutes often divide Article III judges, all the way up to the Supremes, the BIA’s “Post Ashcroft Purge” jurisprudence has been intentionally bland and one-sided — largely without dissent or transparent deliberation. Moreover, as I have observed before, the BIA’s practice under the Ashcroft “Reforms” and the Obama Administration’s “Go Along to Get Along” approach has been largely to issue published precedents by three-judge panels, rather than en banc.

This allows 80% of the BIA’s permanent judges to avoid expressing a view for against any particular precedent. Indeed, some BIA judges appear hardly at all on “precedent panels,” while others appear frequently. Thus, some BIA judges regularly avoid both possible controversy as well as accountability for their legal positions and votes on critical, life-defining issues. Rather a strange way for a so-called “expert deliberative tribunal” to operate, if I do say so myself.

PWS

05-23-18

COURTSIDE HISTORY: LEST WE FORGET: THE “ASHCROFT PURGE” AT THE BIA IN 2003 DESTROYED THE PRETEXT OF JUDICIAL INDEPENDENCE AT EOIR FOREVER – HERE’S HOW! — Read Peter Levinson’s 2004 Paper: “The Facade Of Quasi-Judicial Independence In Immigration Appellate Adjudications”

Levinson–The Facade Of Quasi-Judicial Independence

Read Peter’s full article at the above link (sorry about the difficult formatting — this was my “file copy.”)

Abstract:

Recently the quasi-judicial appellate process for reviewing decisions of immigration judges in noncitizen removal proceedings changed dramatically when the Department of Justice proposed and later implemented a major downsizing of the Board of Immigration Appeals combined with greatly enhanced reliance on single Board members to decide cases. Because the rule restructuring the Board did not limit the Attorney General�s discretion in identifying those who would lose their Board Member positions�and potential criteria referenced by the Department of Justice in that regard were not helpful in explaining how reassigned Board Members differed from colleagues who remained-�this study undertook an examination of case related data.
The study of closely divided en banc precedent decisions of the Board during the period of service by all five subsequently reassigned Board Members showed that adjudicators inclined to favor the position of noncitizens were particularly vulnerable. In fact, four out of the five Board Members who most often supported outcomes favorable to the noncitizen faced reassignment�and the fifth reassigned Member�s stance in favor of the noncitizen in a high profile case of importance to the Attorney General could explain his reassignment. Outcomes in the closely divided cases also suggested that the Attorney General succeeded in moving the Board of Immigration Appeals in a conservative direction just by announcing his downsizing plans�and the result of implementing downsizing the following year was to remake the Board into a largely homogeneous body without significant dissent.
The paper discusses the need for independent immigration adjudicators and points to the judicial nature of the Board�s work. The Board�s experience under Attorney General Ashcroft, the paper concludes, should give new impetus to efforts to separate review of immigration judge decisions from an agency with law enforcement responsibilities. The alternatives recommended by Federal commissions�a specialized court or an independent Executive Branch adjudicatory agency�continue to provide potential solutions.

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Ashcroft certainly “poisoned the well” for judicial independence and Due Process at EOIR. And, frankly, the Obama Administration was also a huge part of the problem.

Well aware of the Ashcroft travesty at EOIR, the Obama DOJ basically covered up the truth and furthered a captive, complacent, “go along to get along” Immigration Court system, overwhelmingly composed of judges from government and prosecutorial backgrounds, because it furthered their own aims of compromising judicial independence to achieve “political goals,” when necessary. As one of my colleagues said, “while the Obama Administration was not Sessions, they certainly made Sessions possible, perhaps probable.”

If Ashcroft and the Bushies “poisoned the well,” Obama let the contamination fester, and Sessions now basically “dumps cyanide into the well” on an almost daily basis.

History is repeating itself in the ugliest possible manner at EOIR. The only question is whether armed with knowledge of the evils of the past, we can change the future to create a system of independent judges who will truly aspire to “be the worlds’ best tribunals, guaranteeing fairness and Due Process for all.”

Join the New Due Process Army! Due Process Forever!

PWS

05-17-18

GONZO’S WORLD — Dem Congressmen Accuse Sessions Of Illegal Ideological Hiring At EOIR, Demand Answers!

Check out this letter outlining continuing corruption, cover-ups, and undermining of Due Process in the Immigration Courts by the highly politicized Sessions DOJ & EOIR:

https://cummings.house.gov/sites/cummings.house.gov/files/Dems%20to%20DOJ%20re.%20EOIR%20Politicization.pdf

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For those of us who served in the DOJ during the Bush II Administration, this is deja vu.

First, the “Ashcroft Purge” at the BIA effectively destroyed judicial independence and impartiality within the Immigration Courts and sent them into a tailspin from which the system never fully recovered. Then, the “Monica Goodling era” resulted in political hiring of “carer officials,” including U.S. Immigration Judges.

The Obama Administration did nothing to correct these abuses and in some cases actually ratified them through their inaction and their “cover up ” of the truth. Now, under Gonzo, the Trump Administration is taking improper political and ideological influence on the U.S. Immigration Courts to a new level of abuse.

It’s highly unlikely that a group of Democratic Congressmen will get much “satisfaction” out of this inquiry. But, hopefully Sessions and his corrupt crew eventually will be held accountable for their lawlessness, bias, and gross misconduct in public office — by history if not by the law.

Just another of the many, many reasons why we need an independent Article I U.S. Immigration Court now!

PWS

04-18-18

HON. ROBERT VINIKOOR TELLS US EXACTLY WHY QUOTAS ARE A TOXIC IDEA FOR US IMMIGRATION COURTS — One Of the “Best Ever” Tells It Like It Is!

https://www.mmhpc.com/2018/04/take-it-from-a-former-judge-quotas-for-immigration-judges-are-a-bad-idea/

Judge (Ret.) Vinikoor writes:

Take it from a former judge: Quotas for Immigration Judges are a Bad Idea.

On March 30^th, the U.S. Department of Justice and Attorney General Sessions announced that Immigration Judges will now be subject to case completion quotas. This unprecedented change will be effective October 1, 2018, and starting then, immigration judges will be subject to performance reviews (tied to job security and raises) that focus on meaningless numbers and disregards due process. As a recently retired immigration judge, I believe this decision is short sighted and not fair to judges, or to the parties that appear in court on either side (government or immigrant and their families), or to our legal system.

Attorney General Sessions says that the current back log in immigration courts is a primary reason for this entirely new quota system; however, I know from experience that quotas will not reduce backlog and will in fact increase our current backlog problems. About 15 years ago, former Attorney General John Ashcroft attempted to reduce backlogs at the Board of Immigration Appeals (the court that hears all the appeals from immigration judges’ decisions). Ashcroft eliminated the Board’s authority to review de novo (or, review as if hearing the case for the first time) decisions of the Immigration Judges with regard to findings of fact and determination of an immigrant respondent’s credibility. As a result, the Board began issuing summary two page decisions, with little or no legal analysis. Those shortened decisions did reduce the amount of time cases were pending before the Board of Immigration Appeals, but had the opposite effect on the actual backlog of immigration cases as thousands of petitions for review were filed throughout the country with the Courts of Appeal. Given the increase in the number of filings and the decrease in the thoroughness of the decision, the Courts of Appeal became extremely hostile to the quality, professionalism and final agency work product of the immigration court judges and particularly the Board. Many cases were remanded, or sent back to immigration judges, for new hearings based on perceived mistakes at the trial level or at the Board, resulting in further delays in court processing times and the issuance of final decisions.

Attorney General Sessions would do well to learn from his predecessor’s mistake. Sessions’ mandate that the judges decide cases “faster” and more “efficiently” ignores the fact that the immigration court judges are currently rendering decisions in a timely manner. However, immigration judges must also follow the constraints of due process, which means giving both sides an opportunity to present their case and then for the judge to fully consider the applicable law and issue a thoughtful decision. A system that evaluates immigration judge performance based on how fast they can complete cases will certainly undermine the quality and thoroughness of decisions. Current law and our legal system requires full and fair hearings, followed by a well-reasoned decision that is consistent with the facts and relevant law. An immigration judge should be evaluated based on quality not quantity. Moreover, quotas will likely produce hastily-made decisions and result in grave errors. As we have seen before, poor decisions will directly result in more appeals to the Board of Immigration Appeals and the Courts of Appeal, causing more delays and running contrary to the goals of the Attorney General.

An equally troubling consequence of the case completion requirement is the possibility of a judge’s decision being influenced by factors outside the facts of the case. For example, the court is asked for a continuance in many cases to await action or decision by the U.S. Citizenship and Immigration Services (USCIS) on pending applications. Such applications are “u” visas for crime victims, I-601A waivers for unlawful presence, I-130 visa petitions for family members of residents or citizens, or I-751 applications for certain individuals married to US citizens. By law, immigration judges cannot make a decision on these applications; USCIS has sole jurisdiction to make those decisions. To date, case law supports judges granting continuances, when it makes sense, in circumstances like these. However, under the new quota system, a judge could be influenced to deny a request for a continuance he or she otherwise would have reasonably granted, solely because of his concern about his completion numbers and keeping his job. That is not justice; it seems more like an assembly line. Similarly, in some cases a continuance may be necessary because of the need for additional evidence or because of a witness’s unavailability. But now, a judge will be hesitant to grant such a continuance if she is concerned about his completion numbers, salary, or job security.

Additionally, an arbitrary case completion number of 700 ignores the wide disparity of cases appearing before the immigration courts. Unrepresented cases at the border or cases in detention often are completed in expedited fashion where little or no relief is sought. However, in many of the interior courts, such as in Chicago where I was a judge, most applicants are represented, present multiple witnesses including experts, and submit sophisticated legal arguments requiring extended trial time. These interior courts complete far less merit cases than at the border, yet the decisions often involve more complex legal issues. To provide context, I’d guess that judges in the interior, working the same hours and pace as judges on the border, probably complete 400 or 500 cases per year. To average the nationwide completion rate completely ignores the wide disparity of decision complexity required in different parts of the country.

Finally, the new quotas are an affront to due process and our legal system. Immigration judges are required by law and the Constitution’s Fifth Amendment to exercise due process in all cases, considering all the facts of case. Judges currently do this and issue decisions in an expeditious manner as soon as possible; judges do not purposefully stall cases. Putting artificial pressure on judges to complete cases more quickly is wrong; Attorney General Sessions is essentially asking the judges to short cut or violate due process, by disregarding thoroughness, fairness, and litigants’ opportunity to be heard, and abandon current law-abiding procedures for case adjudication.

In short, I believe the administration’s plan to impose numeric quotas on immigration judges will not speed up “deportations” if this is their goal, and may result in unforeseen consequences that actual delay the fair hearing process that presently exists.

Judge Vinikoor joined the law firm of Minsky, McCormick & Hallagan, P.C., in 2017 after serving over 30 years as an Immigration Judge.

Judge Vinikoor was appointed as an Immigration Judge in January 1984. During his long tenure on the immigration bench, Judge Vinikoor has authored numerous precedent deciding cases covering topics such as crimes involving moral turpitude, aggravated felony offenses, frauds committed at time of entry and/or adjustment and claims to U.S. citizenship. Judge Vinikoor’s decisions helped define the age limitations for K-4 beneficiaries seeking adjustment of status, the use of Section 245(i) to waive inadmissibility, and the scope of numerous discretionary waivers. A number of published opinions have addressed Judge Vinikoor’s expert analysis in cases involving burden of proof, marriage fraud, and Section 216(c)(4) evidence. During the past 30 years Judge Vinikoor has heard evidence in asylum cases from around the world. His decisions have led to a better understanding of the scope and evidence needed to qualify as a “refugee” under the Immigration and Nationality Act. Upon his retirement from the bench, he was the second most senior Immigration Judge in the country.

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Prior to his retirement in 2017, my good friend and colleague Judge Bob Vinikoor was one of the most widely respected, indeed revered, U.S. Immigration Judges. Indeed, at the time of his retirement, he was #2 in seniority among all U.S. Immigration Judges.

He was widely known for his fairness, scholarship, kindness, practical wisdom, humor, and ability to “move” a docket while respecting everyone’s rights. In a rational judicial system, those in charge would be looking for a way to “clone” someone like Judge Vinikoor and use his knowledge and skills to teach and mentor younger judges, rather than letting him pass into retirement.

In the “Age of Trump & Sessions” — with a blatant effort underway to “dumb down” the U.S. Immigration Judiciary and reduce it to an assembly line operation — it’s highly unlikely that there will be more Judge Vinikoors. That’s a huge loss for everyone, but particularly for the cause of justice in America and for those who depend on the Immigration Court system to deliver potentially life saving Due Process and fairness!

PWS

04-12-18

JOSEPH TANFANI @ LA TIMES: More Critical Reaction To Sessions’s Immigration Court Quotas — “If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars.” (PWS)

http://www.latimes.com/politics/la-na-pol-immigration-courts-20180406-story.html

Joseph Tanfani reports for the LA TIMES:

The nation’s 58 immigration courts long have been the ragged stepchild of the judicial system – understaffed, technologically backward and clogged with an ever-growing backlog of cases, more than 680,000 at last count.

But a plan by Atty. Gen. Jeff Sessions, a longtime immigration hawk, aimed at breaking the logjam and increasing deportations of immigrants in the country illegally has drawn surprising resistance from immigration judges across the country.

Many say Sessions’ attempts to limit the discretion of the nation’s 334 immigration judges, and set annual case quotas to speed up their rulings, will backfire and made delays even worse — as happened when previous administrations tried to reform the system.

“It’s going to be a disaster and it’s going to slow down the adjudications,” warned Lawrence O. Burman, secretary of the National Assn. of Immigration Judges, a voluntary group that represents judges in collective bargaining.

Cases already move at a glacial pace. Nationwide, the average wait for a hearing date in immigration court is about two years, according to data analyzed by the Transactional Records Access Clearinghouse, a research organization at Syracuse University.

But some jurisdictions are much slower. The immigration court in Arlington, Va., where Burman is a judge, has a four-year backlog, meaning hearings for new cases are being scheduled in 2022. Burman says the reality is far worse — the docket says he has 1,000 cases scheduled to begin on the same day in 2020.

. . . .

Another problem: Poorly funded immigration courts still use paper files, slowing access to information, while other federal courts use digital filing systems.

The Executive Office of Immigration Review, the Justice Department office that oversees the courts, started studying the problem in 2001. It has issued numerous reports and studies over the last 17 years, but accomplished little in the way of computerized record keeping.

. . . .

The judges don’t see it that way. Burman and other leaders of the immigration judges’ association, in an unusual public protest, say Sessions’ plan will force judges to rush cases and further compromise the courts’ already battered reputation for fairness.

“Clearly this is not justice,” said the association president, Judge A. Ashley Tabaddor, who sits in Los Angeles, the nation’s busiest immigration court. The plan will “undermine the very integrity of the court.”

Sessions is not the first U.S. attorney general to try to push deportation cases through the system faster.

John Ashcroft, who served under President George W. Bush, unveiled a streamlined approach in 2002, firing what he called softhearted judges from the 21-member Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws.

The result was an increase of cases sent back by federal courts, which reviewed the decisions – and more delays.

Under the Obama administration, immigration judges were ordered to prioritize old cases to try to clear the backlog. But after thousands of unaccompanied minors from Central America surged to the southwest border in 2014, they were told to focus on those cases instead. As the dockets were reshuffled, the backlog kept growing.

Last fall, Sessions ordered 100 immigration judges from around the country to travel to courts on the border to move cases quickly. The Justice Department pronounced it a success, saying they finished 2,700 cases.

Some of the judges were less enthusiastic.

“We had nothing to do half the time,” said Burman, who spent eight weeks in border courts. “I’m not saying it’s a bad idea, but they sent more people than they needed to” while his caseload in Virginia languished for those two months.

Immigration advocates say the answer is more resources: more judges, more clerks, and legal representation for immigrants. They also say the courts should be independent, not under the Justice Department.

“Everybody wants to hear there’s some magical solution to make all this fine. It’s not going to happen,” said Paul Schmidt, a former immigration judge and former chairman of the Board of Immigration Appeals.

“If you’ve got a system that is producing defective cars, making the system run faster is just going to result in more defective cars,’ he said.

Staff writer Brian Bennett contributed to this report.

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Go on over to the LA Times at the above link for Joseph’s complete article.

Those of us in the Immigration Courts at the time of the “Ashcroft debacle” know what a complete disaster it was from a due process, fairness, and efficiency standpoint. Far too many of the cases were returned by the Article III Courts for “redos” because Immigration Judges and BIA Members were encouraged to “cut corners” as long as the result was an order of removal.

Some judges resisted, but many “went along to get along.” Some of the botched cases probably still are pending. Worse, some of the botched, incorrect orders resulted in unjust removals because individuals lacked the resources or were too discouraged to fight their cases up to the Courts of Appeals. And, the Courts of Appeals by no means caught all of the many mistakes that were made during that period. Haste makes waste. I analogized it to being an actor in a repertory theater company playing the “Theater of the Absurd.” Now, Sessions is promoting a rerun of another variation on that failed theme.

Somebody needs to fix this incredibly dysfunctional system before shifting it into “high gear.” And, it clearly won’t be Jeff Sessions.

PWS

04-07-18

HEIDI BOAS @ WILKES LEGAL: Following A Colossal 14-Year Battle, The U.S. Asylum System Saved Rodi Alvarado’s Life – Can Jeff Sessions Undo This Critically Needed, Life-Saving Protection For Thousands Of Women & Children Like Rodi With A Single Stroke Of His Pen?

Issue Spotlight:

Will America Shut Its Doors to Immigrant Survivors of Domestic Violence?

by Heidi Boas, Immigration Attorney

Wilkes Legal, LLC

April 5, 2018

Will the U.S. continue to offer asylum to

immigrant survivors of domestic violence

like Rodi Alvarado Peña?

In January 2018, Wilkes Legal won asylum for an immigrant mother and her children who escaped over a decade of extreme physical, psychological, and sexual abuse that sent our client to the hospital and left one of her children with a permanent physical impairment. Because our client’s domestic partner was a high-ranking military officer in their home country, her pleas for help from government authorities fell on deaf ears, causing her to flee the country for her safety. In recent years, the United States has offered asylum protection to domestic violence survivors like this client. A recent move by Attorney General Jeff Sessions, however, could soon limit or end the ability of domestic violence survivors to receive asylum protection in the United States.

Domestic violence has long been a contentious issue in asylum law. More than two decades ago, advocates began a 14-year legal battle to win asylum for Rodi Alvarado Peña, a Guatemalan woman who suffered a decade of brutal violence at the hands of her husband. Even though Ms. Alvarado repeatedly sought help from the Guatemalan police and courts, the Guatemalan authorities refused to intervene and protect her. When Ms. Alvarado tried to escape from her husband, he tracked her down and beat her unconscious. Ms. Alvarado ultimately fled to the United States and became the subject of a controversial, high profile immigration court case, as multiple administrations considered whether to grant asylum to women whose countries fail to protect them from domestic violence. Ms. Alvarado ultimately received asylum in 2009, but her case did not establish legal precedent that could help other asylum-seekers fleeing domestic violence.

In 2014, the Board of Immigration Appeals (BIA) finally issued a precedential decision recognizing domestic violence as a basis for asylum. In Matter of A-R-C-G-, the BIA granted asylum to a Guatemalan woman whose husband broke her nose, repeatedly raped her, and burned her with paint thinner. The BIA recognized “married women in Guatemala who are unable to leave their relationship” as a group that can qualify for asylum. This landmark case opened the doors to protection for other immigrant survivors of domestic violence whose countries fail to protect them from abuse.

While the United States has made great strides in offering protection to immigrant survivors of domestic violence, Attorney General Jeff Sessions recently took a step that could potentially undo decades of forward progress. As attorney general, Sessions has the authority to refer immigration court cases to himself, overturn decisions of the Board of Immigration Appeals, and set precedent. Last month, Sessions referred an immigration case to himself involving a survivor of domestic violence from El Salvador. If Sessions rules against this woman, he would begin reshaping asylum law for abuse survivors and could potentially shut the doors to countless victims seeking protection in the United States.

In the case under Sessions’ review, a Salvadoran women referred to as A.B. suffered years of domestic violence at the hands of her ex-husband in El Salvador. Even though A.B. separated from her husband and eventually divorced him, her ex-husband returned three years after their separation and raped her. A.B. also testified to receiving threats from her ex-husband’s brother, who is a police officer, and his friend, who told the woman that her ex-husband would kill her and he would help dispose of her body. Although an Immigration Judge denied A.B.’s asylum case, the Board of Immigrant Appeals disagreed with the judge’s ruling and sent the case back to the judge to reconsider his decision. The Immigration Judge again refused to grant asylum to A.B., however, despite the BIA’s precedent decision in Matter of A-R-C-G-, due to other more recent decisions in his jurisdiction.

Now that Sessions has stepped in to review A.B.’s case, he has the authority to determine whether she should be granted asylum. If Sessions denies her asylum case, his decision could have a far-reaching impact, setting precedent that would make it more difficult for other immigrant survivors of domestic violence to qualify for asylum in the future. If Session limits asylum eligibility for these survivors, he will roll back decades of progress in asylum law and close the doors to immigrant victims of abuse who have nowhere else to turn.

Wilkes Legal stands with immigrant survivors of domestic violence and urges Sessions to uphold the BIA’s current precedent, keeping America’s doors open to victims of domestic abuse whose governments fail to protect them.

Visit our website, follow us on Facebook or Twitter, or call our office at (301) 576-0491 to learn more about Wilkes Legal, LLC.

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From his actions to date, Sessions appears to be up to no good. But, by now the “A-R-C-G-/R-A- principles” are deeply ingrained in U.S. protection law as interpreted by the Article III Federal Courts.

I predict that an attempt by Sessions to undo A-R-C-G- protections will be heavy-handed, blatantly biased, and thinly reasoned as have been all of his transparently biased reversals of established legal positions to date.

It’s therefore likely to suffer a fate of emphatic rejection by the Article IIIs much like what happened when Attorney General Michael Mukasey tried to undo years of established legal precedent about proof of crimes involving moral turpitude in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), rev’d & remanded, Matter of Silva-Trevino, 26 I&N Dec. 550 (A.G. 2015).

I’m hardly a “Charter Member of the Mike Mukasey Fan Club.” His poor stewardship over the U.S. Immigration Court system is at least partially responsible for today’s inexcusable mess in our Immigration Courts.

Nevertheless, before becoming Attorney General, Mukasey was a well-respected U.S. District Judge. He’s 10X the lawyer as Sessions! Sessions’s lack of any discernible legal skills, integrity, humanity, and judgement probably bodes well for the “Good Guys” in the long run.

But, that doesn’t mean that there won’t be unnecessary and unconscionable suffering. Sessions is a bully at heart who relies on the fact that the majority of individuals in the U.S. Immigration Court system are unrepresented and therefore unable to defend themselves against his racist/xenophobic policies.

I’m proud to be one of the “Gang of Five” Appellate Immigration Judges (“Board Members” ) who dissented from the BIA’s original outrageously incorrect decision in Matter of R-A-, 22 I&N Dec. 908 (BIA 1999), vacated, Matter of R-A-, 22 I&N Dec. 908 (A.G. 2001) that reversed a clearly correct grant of asylum to Rodi Alvarado. The other dissenters were Judges John Guendelsberger (who wrote the dissent), Lory Diana Rosenberg, Gustavo D. Villageliu, and Anthony C. Moscato.

Not coincidentally, all of us except for Judge Moscato were removed and “exiled” from the BIA during the “Ashcroft Purge of 2003” for the transgression of doing our jobs conscientiously and standing up for a correct interpretation of the asylum law. So much for the “facade of quasi-judicial independence at the BIA.” (Credit to Peter Levinson). And, that’s before the current “descent into the abyss” brought about by Sessions!

We need an independent Article I U.S. Immigration Court now!

PWS

04-05-18

HON. JEFFREY CHASE: Sessions’s Abuses Of “Certification Power” Show Why It’s Past Time To End This Unfair, Unethical, & (Probably) Unconstitutional Mockery of Justice!

https://www.jeffreyschase.com/blog/2018/3/29/the-ags-certifying-of-bia-decisions

Mar 29 The AG’s Certifying of BIA Decisions

The recent flurry of case certifications by Attorney General Jeff Sessions (he has certified four BIA decisions to himself since January) raises the question of the continued appropriateness of the practice. Certification allows a political appointee who heads an enforcement agency, and is subject to the policy agenda of the administration he or she serves, absolute authority to overrule or completely rewrite the decisions of an ostensibly neutral and independent tribunal comprised of judges possessing greater subject matter expertise.

The issue has only become a matter of legitimate concern under the two most recent Republican administrations. In her eight years as Attorney General during the Clinton Administration, Janet Reno decided a total of three cases pursuant to certification. Under the Obama administration, AGs Loretta Lynch and Eric Holder decided a comparable number of cases (four). The number is artificially inflated by the fact that two of those consisted of Holder vacating late-term decisions by his predecessor, Michael Mukasey. In one of the vacated decisions, Mukasey’s reasoning had been rejected by five separate U.S. circuit courts of appeal.

In contrast, during the eight year administration of George W. Bush, his three Attorneys General issued 16 precedent decisions through the certification process. Sessions so far seems to be on a similar pace.

One of Bush’s AGs, Alberto Gonzales, co-authored an article in 2016 defending the use of certification.1 As part of his argument, Gonzales traced the history of the practice to the BIA’s origins as an advisory-only panel in the Department of Labor in the 1920s and 30s. When the Board was transferred to the Department of Justice in 1940, it was provided only limited decision-making authority, but was required to refer to the AG certain categories of cases, including those “in which a dissent has been recorded” or where “a question of difficulty is involved.”

I will add that the early appointees to the BIA were career bureaucrats with no prior expertise or experience in the field of immigration law. To me, such history seems to provide no real justification for the continued practice. The BIA has for decades enjoyed the authority to independently decide a broad class of cases. It’s members all come to the Board with far more expertise and experience in the field of immigration law than the AG possesses (although since the 2003 purge by then-AG John Ashcroft, its make-up is far more conservative). Furthermore, whereas in the past, it was the BIA itself, and later, the Commissioner of INS, requesting certification, at present, the AG is handpicking the cases and certifying them to himself, sometimes in order to decide an issue that wasn’t part of the decision below.

Law Professor Margaret H. Taylor has noted that the practice of AG certification “might be seen as objectionable because it conflicts with a core value of our legal system: that disputes are resolved by an impartial adjudicator who has no interest in the outcome.”2 Taylor further points out that many such decisions were issued in the final days of an AG’s term, meaning that the AG “refers a controversial issue to himself and renders a decision upending agency precedent on his way out the door.”3

In an article calling for the implementation of procedural safeguards on the AG’s certification power, the author accurately notes that the practice of “agency head review” is common and non-controversial.4 However, Professor Stephen Legomsky has pointed out that the strongest arguments for agency head review – inter-decisional consistency, and agency control (by politically-accountable officials) over policy – don’t translate well to the process of deciding asylum applications, for example.5 This harks back to a point I made in an earlier article – that immigration judges (including BIA Board member) are the only judges in the otherwise enforcement-minded Department of Justice, and that the Department has never really grasped the concept of independent decision-makers existing under its jurisdiction.

Legomsky pointed out in the same article that the BIA, as an appellate authority, “can yield the same consistency as agency head review” through the issuance of en banc decisions; adding that the AG could require the Board to decide certain cases en banc.6 Interestingly, the BIA has given up the use of en banc decisions in recent years. It has not decided a precedent decision en banc even in cases of major import, or following remands from the AG or circuit courts.

Sessions’ use of certification thus far is unique in his redetermination of what the case he chooses is even about. In Matter of Castro-Tum, the DHS appealed an immigration judge’s decision to administratively close proceedings in which an unaccompanied minor did not appear on the grounds that it had met its burden of establishing proper notice of the hearing on the minor respondent. The BIA actually agreed with DHS and remanded the matter. However, Sessions has now turned the case into a referendum on whether any IJ or the BIA has the legal authority to administratively close any case, an argument that was never raised below. In Matter of A-B-, an immigration judge, in defiance of the BIA’s order to grant asylum on remand, refused to calendar the case for a hearing for an excessive length of time, and then disobeyed the Board’s order by denying asylum again for spurious reasons. Somehow, Sessions decided to certify this case to decide whether anyone seeking asylum based on membership in a particular social group relating to being a victim of private criminal activity merits such relief. His ultimate decision could curtail asylum eligibility for victims of domestic violence, members of the LGBTQ community, targets of gang violence, and victims of human trafficking.

Furthermore, two of the cases certified by Sessions involve tools of docket management, i.e. administrative closure and continuances. As immigration judges are the only judges within the Department, and as the BIA has set out uniform procedures for the proper use of these tools, how can the AG justify his need to weigh in on these issues, which clearly do not involve the need for intra-department consistency (as no other component of the department employs such tools), or for control by a politically-accountable official to ensure the coherent expression of agency policy?

Once again, the solution is to create an independent, Article I immigration court, allowing IJs to continue to decide cases with fairness and neutrality free from such policy-driven interference.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes:

Alberto Gonzales and Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L.Rev. 841 (2016).

Margaret H. Taylor, Midnight Agency Adjudication: Attorney General Review of Board of Immigration Appeals Decisions, 102 Iowa L. Rev. 18 (2016).

Id.

Laura S. Trice, Adjudication by Fiat: The Need for Procedural Safeguards in Attorney General Review of Board of Immigration Appeals Decisions, 85 N.Y.U. L. Rev. 1766 (2010).

Stephen H. Legomsky, Learning to Live with Unequal Justice: Asylum and the Limits to Consistency, 60 Stan. L. Rev. 413, 458 (2007).

6. Id.

JEFF CHASE

BIA’S PLANNED EXPANSION TO 21 JUDGES LIKELY TO RESULT IN EVEN MORE PRO-ENFORCEMENT BIAS!

2018-03980

The DOJ has finalized regulations (see above link) that would expand the authorized number of Appellate Immigration Judges serving as Board Members on the BIA from the current 17 to 21. Currently, there are 15 Appellate Immigration Judges actually on duty, including the Chair and Vice Chair.

The BIA once was authorized 23 Board Members, prior to the infamous “Ashcroft Purge of 2003” which artificially reduced the number of Appellate Immigration Judges to eliminate those judges perceived as “too liberal” by Ashcroft and his cronies. Because the number 12 was arbitrary, the BIA in fact never was able to operate properly with that reduced number of judges.

The DOJ therefore resorted to a number of “gimmicks” to keep the operation afloat while concealing their politicized mismanagement of the appellate function. Among the gimmicks were using senior BIA staff members as “Temporary Board Members,” misuse of “summary affirmances” to rubber stamp orders of removal, so-called “single-Member decisions” that often were in conflict with each other, elimination of authority to review facts “de novo,” and a “presumption against en banc precedents” used to suppress dissent. However, given that the BIA was carefully constructed with only judges likely to “go along to get along” with Administration enforcement views, there wasn’t likely to be much dissent anyway.

The immediate result of the “Ashcroft purge” was tanking of the BIA’s credibility and decision quality that quickly outraged many U.S. Courts of Appeals. This, in turn, resulted in boatloads of reversals and remands from the Courts of Appeals for new decisions, as well as pointed criticism in published Court of Appeals decisions, and media criticism from some of the most outspoken Article III Court of Appeals Judges.

Finally, Ashcroft’s successor, Attorney General Alberto Gonzalez, had to take steps to slow down the “deportation express” and restore at least some semblance of quality and civility to the adjudication process at both the BIA and Immigration Court levels. However, Gonzalez chose largely to blame Immigration Judges for the drop-off in quality, rather than acknowledging the DOJ’s primary role in creating the problems.

In the abstract, with an increasing case load and more Immigration Judges being appointed, an increase to 21 judges at the BIA seems logical. However, given the BIA’s already “DHS-leaning” jurisprudence, and the overtly anti-immigrant, restrictionist views expressed by Attorney General Sessions, it’s likely that expansion will mean further “packing” the BIA with judges who are biased in favor of the Administration’s alt-right restrictionist immigration enforcement agenda. That will be bad news for migrants and anyone else expecting the BIA to honor its long-forgotten pledge to “guarantee fairness and due process for all.”

Just another reason why America needs an independent Article I U.S. Immigration Court (including an open “merit-based” judicial selection system) now!

PWS

02-27-18

ARLINGTON IMMIGRATION COURT REPORT: JUDGE THOMAS SNOW WILL BE SERVING AS APPELLATE IMMIGRATION JUDGE/TEMPORARY BOARD MEMBER (“TBM”) AT BIA IN FALLS CHURCH FOR AT LEAST FOUR MONTHS — No Word On What Will Happen To His Arlington Docket!

Hon. Thomas “Frosty the Snowman” Snow, flanked by Hon. John Milo “JB” Bryant (on right, in the funny looking dark suit) and by Judge Rodger B. “Marine” Harris and me (on left) departing for my last “Thursday Judges’ Lunch” on the day of my retirement, June 30, 2016.

Judge Snow has previously served as a TBM, as well as the Acting Director of EOIR and the Acting Chief Immigration Judge, as well as a Senior Executive in the International Affairs Section of the Criminal Division of the USDOJ. So, he is no stranger to “The Tower” in Falls Church where the BIA is located. He also has been an Adjunct Professor of Law at UVA and William & Mary, his two alma maters.

Judge Snow is widely respected by both private practitioners and DHS Counsel as a due-process-oriented, fair, scholarly, patient, and unfailingly polite jurist. His overall asylum grant rate has been approximately 70%.

He will join 15 permanent Appellate Immigration Judges, as well as Judge Keith Hunsucker and two Senior BIA Attorney Advisors who also serve as TBMs. Of course, the BIA once had a sufficient number of permanent judges, over 20 at one time, prior to AG John Ashcroft’s purge. That “purge” crippled the BIA’s effectiveness and reputation as a due-process-oriented appellate court as part of a successful effort to remove so-called “liberal judges” from their appellate positions.

Normally, TBMs serve for renewable 120 day appointments. My sources were unaware of what arrangements have been made for the docket Judge Snow leaves behind at the Arlington Immigration Court, where approximately 30,000 cases are pending and Individual Merits hearings are scheduled as far out as 2021-22.

If someone out there in “Courtsideland” knows the fate of Judge Snow’s Arlington docket, please share with everyone by posting in the “comments” box below.

Good luck to Judge Snow in his new temporary assignment.

PWS

02-11-17

When women arrive at our shores asking only that they not be beaten, raped or murdered, delivering them to their tormentors isn’t an option.

Justice constraints are harmful, irrational

Women would still prove need for asylum

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