"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
How horrible is today’s BIA? Well, there are endless examples documented in Courtside and the Jeffrey S.Chase Blog from my friend and Round Table colleague. But, here’s a particularly striking recent travesty from our friend Dan Kowalski over at LexisNexis Immigration Community:
The case is Hylton v. Att’y Gen. Here, the 11th Circuit Court of Appeals, hardly a hotbed of judicial liberalism or anti-Government sentiment, reamed the “Star Chamber BIA” for 1) misreading the plain statutory language, and 2) ignoring controlling Supreme Court precedent to reach an anti-migrant result.
This is merely the latest in a long line of screw-ups resulting from a powerful appellate body that lacks independence, expertise, and the institutional courage to uphold individual rights against the constant overreach of DHS Enforcement (characterized as “partners” by Sessions & Barr — how would you like to be tried by a “court” where the prosecutors and the judges are “in partnership” to extinguish your legal rights and humanity?)
Two major legal errors by supposed “expert judges” in the same case? Oh, and get this! This case misreading the “plain language” of the statute and dissing binding precedent from the Supremes, just to produce an (illegal) order of removal, was deemed so “routine” at the “Falls Church denial factory,” that it was handled by a single appellate “judge” — didn’t even merit consideration by a three-member panel!
That’s what the DOJ’s politically-motivated “deny and deport culture” produces. And, it’s not like this is an aberration; the BIA cranks out this sloppy garbage on a daily basis. Most of it doesn’t get caught by the U.S. Courts of Appeals, who all too often are on their own type of “autopilot” when it comes to the legal rights of migrants — many of them people of color!
For Judge Garland to be credible on any racial justice issue, and for EOIR to provide due process, we need radical, not incremental, change!
A few “takeaways” from one of America’s leading “practical scholars:”
Think about a new start with a “clean slate;”
Deportation is “state violence;”
Immigration Courts are constructed to provide Gov. with an unfair advantage;
No rules, no due process, no justice;
Kudos to the NDPA & the Round Table;
Trump Administration spent inordinate effort improperly skewing the law to insure everything is denied and remove equible discretion from IJs;
Good provisions that provided discretion in the past to alleviate hardship and injustice have been eliminated by Congress: suspension of deportation, JRAD, 212(c), 245(i), registry (not repealed but now virtually useless b/c of 1972 cutoff date).
With the U.S. “on pace to encounter more individuals on the southwest border than we have in the last 20 years,” as Homeland Security Secretary Alejandro Mayorkas said in a statement March 16, immigration at the U.S.-Mexico border has emerged as one of the toughest challenges facing the Biden Administration. Last week, President Biden put Vice President Kamala Harris in charge of “stemming” the flow of migrants, Biden was questioned about the immigration situation at his first official press conference, immigrant detention centers began to fill up once again, and lawmakers from both sides of the aisle made trips to the border to publicize the issue and propose solutions.
Biden’s attempts to address immigration may be new, but the issue is one that has dogged his predecessors for decades. Since the 1970s, Republicans and Democrats alike have tried to address undocumented immigration by constructing ever more draconian policies of border control, deportation and detention—border theater that grabs headlines and sometimes leads to short-term change, but never actually solves the problem.
There’s a reason why the U.S. government has failed for so many years to “control” the border: none of these policies have addressed the real reasons for migration itself. In migration studies, these are known as “push” and “pull” factors, the causes that drive migrants from one country to another.
Today, the countries sending the most migrants to the U.S.-Mexico border–especially the Central American countries of Guatemala, Honduras and El Salvador–are experiencing a combination of push factors that include poverty and inequality, political instability, and violence. And while the current situation may be unique, it is also deeply rooted in history.
Many countries in Central America have struggled with poverty since the time of independence from Spain in the early 19th century. While they are beautiful countries that are rich in culture and history, that colonial past has meant they have historically been home to large, landless, poor, rural populations, including many indigenous people of Mayan descent. In the years after Spanish control, they were typically ruled by small oligarchies that disproportionately held wealth, land and power, and their economies were primary export-dependent, which brought great riches to landowners but also exacerbated and perpetuated inequality and the poverty of the majority. Those dynamics have carried forward to today. More recently, climate change–in particular, drought and massivestorms–has forced the vulnerable rural poor out of the countryside.
. . . .
And while many Central Americans could indeed qualify for asylum based on their experiences of persecution, the previous administration made every effort to limit their ability to obtain it. Now the Biden Administration must decide whether to restore the asylum framework, which has become the only possible path to legal migration (as well as safety and security) for Central Americans and other migrants who—due to these combined push and pull factors—are desperate to come to the United States.
Given the complicated and deep-rooted reasons behind migration, lawmakers cannot control or “solve” the ongoing crisis at the border by simply pouring money and resources into ever more militaristic border theater. It’s no wonder that decades of such policies have done little to change the underlying dynamics.
Instead, if Americans are serious about changing the situation at the border, we need to address the push and pull factors behind Central American migration. We need to acknowledge the reality of the U.S. economy (in particular, that it demands immigrant labor to work low-wage jobs) and work to construct new legal frameworks that reflect that reality. We need to target financial and logistical support to encourage Central American countries to address the poverty and inequality that fuel migration, rather than cutting foreign aid, as the Trump Administration did. We need to do all we can to end the pervasive gang violence that pushes so many migrants out of their homelands. And of course, we must continue to evaluate our own historical and contemporary role in creating the longstanding problems that are pushing Central Americans to migrate.
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Read the rest of Julia’s article at the link. One key truth: many more Central American migrants would qualify for asylum and be legally admitted to our society under a fair application of our asylum laws directed and supervised by real expert judges who scrupulously enforce due process and best practices on a now biased, unfair, and dysfunctional system!
“Stemming the tide” might be neither realistic nor possible at this time. But, controlling it, managing it humanely and legally, and regularizing it, while lessening the “push” factors should be achievable.
It would, however, require bold actions:
Recognizing the primacy of humanitarian protection laws and insisting on due process in implementing them;
Putting experts in humanitarian situations, due process advocates, diplomats, labor economists, and demographers in leadership positions; and
Embracing much larger levels of legal immigration, particularly from Latin America.
Vice President Kamala D. Harris Vice President of the United States (Official Senate Photo)
Unfortunately for Vice President Harris and the rest of us who want humane, realistic immigration policies, there are reasons for our half-century of overall failure on the border.
Bloated government bureaucracies, powerful corporate interests, nativist politicians, and even foreign leaders are heavily invested in expensive and guaranteed to fail “uber enforcement” gimmicks. Failure basically creates a never-ending demand for more: more enforcement agents, “civil prisons,” jailers, deporters, cars, trucks, guns, boats, ammo, walls, fences, technology, courts, judges, prosecutors, lobbyists, “baby jails,” processing centers, foreign aid that goes largely into the pockets of corrupt leaders and their cronies, and a never-ending supply of underground, low-wage, politically neutered workers.
Additionally, we now have an entire political party with an agenda of overt institutionalized racism, dehumanization of the other, and fear-mongering White Nationalist myths driving its bogus populist narrative.
None of these “architects and enablers of border failure and institutionalized racism” are going “quietly into the night.” They will fight tooth and nail to defend their sinecures, profitable empires, and politically useful White Nationalist myths.
The politician who finally breaks the deadly cycle of failure and human misery at our border, while harnessing and realizing the positive power of human migration, will become a hero for future historians and undoubtedly merit a chapter in a new edition of Profiles in Courage.
Sadly, such recognition and adulation is likely to come long after she is gone from the scene. Long term vision and moral courage are not necessarily rewarded with short-term political popularity. Just ask the few Republicans who voted in accordance with the overwhelming, basically uncontested, evidence of Trump’s “high crimes and misdemeanors!”
That’s why it’s a tough challenge even for someone of Vice President Harris’s undoubted intelligence and abilities. It’s up to those of us who believe in a better America to keep her from getting sidetracked and co-opted by the vested interests of failure and White Nationalist myth-makers and purveyors.
Hi all:The Round Table was on the winning team in a (lengthy) decision issued yesterday by the NJ Supreme Court concerning the detention of criminal defendants who are noncitizens based on the possibility of their removal by ICE.
Thanks to Sue Roy, who solicited the Round Table’s involvement, and then drafted our brief!
Except from the decision:
A group of fifty immigration law scholars and clinical professors (Professors), and a second group of twenty-five former immigration judges and members of the Board of Immigration Appeals (Former Judges), submitted comprehensive overviews of the immigration process. They highlight the complex, dynamic, and discretionary nature of the removal process and argue that state trial courts are ill-equipped to evaluate a defendant’s likelihood of removal, which is too speculative even for experts to predict. They submit that a civil immigration detainer, like an individual’s immigration status, is not a reliable indicator that a person will be removed from the country.
The American Immigration Lawyers Association (AILA) and the National Immigration Project of the National Lawyers Guild, the Immigrant Defense Project, and the Harvard Law School Crimmigration Clinic echo concerns about how difficult it is to forecast the risk of removal for a non- citizen. AILA adds that permitting pretrial detention based on a person’s risk of removal will have the disproportionate effect of incarcerating low-level offenders, the vast majority of whom are recommended for release under the CJRA.
Finally, Legal Services of New Jersey (LSNJ) and Make the Road New Jersey, joined by twelve other organizations (Make the Road), highlight the consequences of pretrial detention for non-citizens, their families, and their communities. LSNJ also challenges the need for pretrial detention given the avenues non-citizens have to resolve their criminal cases while in ICE custody. Make the Road adds that allowing pretrial detention based on immigration status undermines trust in law enforcement in immigrant communities and makes it harder for law enforcement to investigate and prosecute crimes.
Below is the summary from petitioner’s counsel, NJ Immigration Attorney Jerry Gonzalez:
Our firm represented Mr. Lopez-Carrera, who was ordered removed and physically removed from the US while his criminal case was pending (he had lost at the BIA and state was trying to get him back).
Props to our Amicus friends!Patrick McGuinness(Immigration counsel), Sue Roy, Eric Mark, Michael Noriega, Raquiba Huq and Professor Joanne Gottesman.Great team work!!!
Issue: In these consolidated appeals, the Court considers whether the Criminal Justice Reform Act (CJRA or Act), N.J.S.A. 2A:162-15 to -26, empowers judges to detain defendants who are non-citizens to prevent immigration officials from removing them from the country before trial.
Holding: The CJRA favors pretrial release over detention; it authorizes judges to detain defendants when the State has shown, by clear and convincing evidence, that no conditions of release would reasonably assure the eligible defendant’s appearance in court when required, would protect the public, or would prevent the defendant from obstructing the criminal justice process…. The Court agrees with the Appellate Division that the CJRA does not authorize judges to detain defendants to thwart their possible removal by ICE.
Enjoy the light reading!
Jerry
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Many thanks to all involved, with particular thanks to Judge Sue Roy for her energy, scholarship, advocacy and continuing dedication to due process under law. It’s an honor to work with and be inspired by you, my friend.
CELEBRATING WOMEN’S HISTORY MONTH WITH THE BOYS FROM THE EIGHTH CIRCUIT!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
PANEL: SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
OPINION BY: Judge Arnold
Because you have to “see it to believe it” that these three guys actually graduated from law school and got promoted to the Federal Judiciary, the opinion is set forth in full here:
United States Court of Appeals For the Eighth Circuit ___________________________
No. 20-2248 ___________________________
Yeemy Guatemala-Pineda
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent ____________
Petition for Review of an Order of the Board of Immigration Appeals ____________
Submitted: February 17, 2021 Filed: March 26, 2021 ____________
Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges. ____________
ARNOLD, Circuit Judge.
After Yeemy Guatemala-Pineda entered the United States unlawfully, she applied for asylum so she wouldn’t have to return to her home country of El Salvador.
1Merrick B. Garland is serving as Attorney General of the United States, and is substituted as respondent pursuant to Federal Rule of Appellate Procedure 43(c).
She feared that if she returned there gangs would persecute her because of her religious activities. After a winding course of immigration proceedings that began more than ten years ago, the Board of Immigration Appeals ultimately denied her request for asylum. We deny the petition for review since we think substantial evidence supports the BIA’s decision.
Guatemala-Pineda, whom we will call Pineda as her real name is Yeemy Michael Pineda, attempted to enter the United States in 2010 at age 22 but was apprehended by immigration authorities and charged with being inadmissible as an alien without proper documentation. See U.S.C. § 1182(a)(7)(A)(i)(I). She conceded that the charge was true but applied for asylum, which protects, among others, refugees present in the United States who are unable or unwilling to return to their home country because they have a well-founded fear that others will persecute them on account of their religion. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Pineda testified before an immigration judge that she was a practicing Christian who had participated in a church project of door-to-door evangelization that specifically targeted gang members. She related that a handful of gang members had at one time “cornered” and “grabbed” her during a church function and tried to recruit her to their gang, explicitly telling her that they did not want to see her working with the church. Though they also threatened to “take [her] by force” and find her wherever she went, they did not otherwise physically harm her.
After that incident Pineda stopped attending church, opting instead to participate in religious services at other people’s homes. During one of these home services, Pineda testified, gang members appeared outside and demanded that the group stop singing. She believed they were the same gang members who had threatened her before; they specifically called her by name and said they were “coming for” her. Two weeks later, at another home gathering, gang members again appeared outside, announced they were armed, and demanded that she come outside
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or “they were going to get” her. The people inside threw themselves on the ground and waited about two hours until the gang members departed.
At that point, Pineda testified, she obtained a job selling clothes in San Salvador, which was about ninety minutes from her home. She explained that gang members did not bother or threaten her while at work, though one time she had to crouch down when she heard gunshots directed toward another person.
The immigration judge concluded that, even though Pineda had not demonstrated past persecution, she did have a well-founded fear of future persecution, and so granted her application for asylum. When the government appealed to the BIA, the BIA remanded the case to the immigration judge to consider, among other things, whether Pineda could reasonably relocate within El Salvador to avoid future persecution. On remand, Pineda testified that, if forced to return to El Salvador, she would return to her mother’s house because she had no other place to go. She noted that her entire family lives in the same city and that she could not relocate to another city as a single Christian woman. She also elaborated on her time working in San Salvador, explaining that she commuted alone and worked three to five days a week for a few months before leaving for the United States. Pineda also testified that, though she did not experience difficulties from gang members in San Salvador or while commuting, thieves did steal her paycheck three or four times and her cell phone twice, often while she was riding on a bus.
Pineda also presented testimony from an expert on Central American gangs. He testified that El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no
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protective family network, making “internal relocation a very, very difficult proposition.”
The immigration judge again granted Pineda’s request for asylum, concluding that she had carried her burden to show that internal relocation was unreasonable, as “[s]he is a young single woman returning to a country the size of Massachusetts where abuse and violence against women is one of the principal human rights problems.” The judge acknowledged that Pineda had worked in San Salvador for three months without interference from gangs but pointed out that during that time she had been robbed of her paycheck or cell phone at least five times and “did not proselytize in the streets.” In sum, there were simply no other parts of the country “that are any better than the area that gave rise to [Pineda’s] original claim.” On appeal, however, the BIA pointed out that Pineda was able to avoid gang persecution while working in San Salvador. It also noted that, even though Pineda was the victim of crimes during her commute, it was unclear whether she could have avoided these and similar crimes by moving to San Salvador instead of commuting from her hometown. The BIA therefore remanded for the immigration judge “to reconsider the overall reasonableness of any relocation by the respondent throughout El Salvador.”
On remand, Pineda’s case was assigned to a different immigration judge. The new judge concluded, after receiving additional arguments from the parties and what he termed “extensive country condition evidence,” that Pineda had failed to shoulder her burden to show that she could not relocate elsewhere in El Salvador since she was able to avoid gang persecution while working in San Salvador. The BIA upheld that determination.
In her petition for review from that holding, Pineda challenges the determination that she failed to show she could not safely relocate to another part of El Salvador. We review both the BIA’s decision and the immigration judge’s decision to the extent the BIA adopted the findings or reasoning of the immigration judge. See
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Degbe v. Sessions, 899 F.3d 651, 655 (8th Cir. 2018). We will uphold the decision so long as substantial evidence supports it. See Cinto-Velasquez v. Lynch, 817 F.3d 602, 607 (8th Cir. 2016). When applying that “extremely deferential” standard, we will not reverse “unless, after having reviewed the record as a whole, we determine that it would not be possible for a reasonable fact-finder to adopt the BIA’s position.” See Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004).
Since Pineda does not contend that she has shown past persecution, she must show she has a well-founded fear of future persecution to prevail. See 8 U.S.C. § 1101(a)(42)(A); see also 8 C.F.R. § 1208.13(b). But “[a]n applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant’s country of nationality.” 8 C.F.R. § 1208.13(b)(2)(ii). Because Pineda has not demonstrated past persecution, and the gangs she fears are not government or government sponsored, she bears the burden to show that relocation would not be reasonable. See id. § 1208.13(b)(3)(i). In these circumstances relocation is presumed to be reasonable. See id. § 1208.13(b)(3)(iii).
We hold that substantial evidence supports the BIA’s determination that Pineda could relocate to another part of El Salvador if forced to return. We believe that a reasonable factfinder could give substantial weight to the lack of gang harassment Pineda suffered while working in San Salvador for a number of months. Even if gangs generally have significant reach throughout the country and are able to locate people like her quickly, as Pineda maintains, the fact that they did nothing to her for months as she worked in San Salvador is hard to overlook. And even though the first immigration judge to preside over Pineda’s proceedings found that internal relocation would not be reasonable, that does not necessarily mean that substantial evidence did not support the second immigration judge’s decision. It might just go to show that the reasonableness of relocation in this case is one on which reasonable people could disagree.
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To bolster her case, Pineda emphasizes that she suffered other serious harm in San Salvador when she had paychecks and cell phones stolen from her. Pineda is right that, to prevail, she need not show that she suffered other serious harm on account of a protected ground, such as religion. See Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1048 n.5 (8th Cir. 2004). But that other harm must rise to “the severity of persecution” for her to carry the day. Id. “Persecution is an extreme concept,” involving things like death or the threat of death, torture, or injury to one’s person or freedom. See De Castro-Gutierrez v. Holder, 713 F.3d 375, 380 (8th Cir. 2013). Pineda did not describe anything that occurred to her during her commutes to and from San Salvador or her employment there that approaches this high standard.
We therefore conclude that substantial evidence supports the BIA’s determination, considering that Pineda worked for months in San Salvador without trouble from gangs. Though we recognize that Pineda’s expert opined that she was at risk, we think the BIA did not unreasonably focus on there being no evidence that she was persecuted during the months she worked in San Salvador. We have upheld a decision on this kind of question based on less, as, for instance, where an asylum seeker had stayed in another part of a country without being harmed for five weeks. See Molina-Cabrera v. Sessions, 905 F.3d 1103, 1106 (8th Cir. 2018).
Though we sympathize with Pineda’s subjective fear of returning alone to a different part of El Salvador, we cannot say that the BIA’s relocation determination is unsupported by substantial evidence. Because we uphold this portion of the BIA’s decision, we do not consider whether substantial evidence supported the BIA’s conclusion that the government of El Salvador was unwilling or unable to control the gangs that Pineda feared.
Petition denied.
______________________________
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No, it’s not, as Judge Arnold disingenuously claims “something on which reasonable people could disagree.” No reasonable adjudicator qualified in asylum law and due process could reach this ridiculously wrong result!
Naturally, not understanding asylum law (why would that be a requirement for an Article III Judge, just because it’s probably the #1 and certainly most hotly contested topic in Federal Civil Litigation these days), Judge Arnold and his “boys club” out on the Great Plains fail to give this credible respondent “the benefit of the doubt” to which she is entitled under UNHCR guidance.
Indeed, as I used to tell my former BIA colleagues, usually to little avail before launching another dissent, “if reasonable people could differ, the result should be clear — the respondent wins because she gets ‘the benefit of the doubt.’” Sadly, even at a time when the BIA functioned at a much much higher level than it does today, it was the Immigration Judge and immigration enforcement who often in practice got the “benefit of the doubt” from many of my former colleagues, not the asylum applicant.
As my friend Dan Kowalski over at LexisNexis Legal Community summed up: “Proves the point that ‘the only true refugee is a dead refugee.’” Unlike the various BIA Judges and Circuit Judges involved in this deadly travesty, Dan actually understands asylum law, due process, and human values.
One might fairly ask the question of why “practical scholars” like Dan are on the “outside” and lesser talents are on the Federal Bench at all levels? The answer has much to do with why there is an “institutionalized racism crisis” in today’s American justice system. “Trial By Ordeal,” really isn’t that great a “look” for 21st Century American Justice! (Any more than is institutionalized racism and “The New Jim Crow”).
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Conveniently, this “gang of three” CJs showed little real understanding of 8 C.F.R. 208.13 as it existed at the time of the BIA’s second decision, which states:
adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
Just on the information regurgitated in their opinion, Ms. Guatemala-Pineda showed by expert witness testimony and by her own credible testimony and experiences that there is no “reasonably available relocation alternative” in El Salvador. There clearly is “ongoing civil strife” in El Salvador. And, anyone with even minimal knowledge of the country would know that (to put it charitably) the “administrative, economic, and judicial infrastructures” are somewhere in the zone between dysfunctional to non-existent. She also credibly pointed out why it would not be reasonable under the circumstances to require her to leave her mother’s home and move to San Salvador.
Forcing someone to commute to a job 90 minutes away, for 3-5 days per week work, in what is perhaps the most dangerous city in the country, during which she already suffered “three or four paycheck robberies and a cell phone robbery” in about three months — that’s a total of five robberies” in a relatively short span — is by no means a “reasonable internal relocation alternative” based on all relevant factors!
Additionally, that she felt unable to proselytize in accordance with her religious beliefs in San Salvador also indicates that relocation there is unreasonable. Freedom to carry out reasonable religious commitments without fear of harm is a fundamental human right.
Very interesting to compare how GOP Circuit Judges treated very clear interference with Ms. Guatemala-Pineda’s ability to fulfill her religious beliefs in this case with how many GOP judges in the U.S. swoon over every minor interference with right wing religious beliefs — even those grounded in obvious bigotry — in the U.S. Here, by contrast, the GOP Circuit Judges fobbed off the interference with Ms. Guatemala-Pineda’s evangelical activities — at one point she felt unable to worship publicly at her church — as of no particular concern.
Not to mention that Ms. Guatemala-Pineda’s expert confirmed that:
El Salvador is “the most violent country in the world for women” and that four things put Pineda “at not only high but very predictable risk” of harm should she return to El Salvador: her religious practices and activities, her past refusal to comply with gang demands, her flight from El Salvador to escape gang threats, and the ability of gangs to learn of her return. Further, he opined, Pineda would be at high risk anywhere in El Salvador because she is a young, single woman with no protective family network, making “internal relocation a very, very difficult proposition.”
In plain terms, it’s only a matter of time before Ms. Guatemala-Pineda is persecuted, seriously harmed, or killed if returned to El Salvador. But, her life, as a woman of color, is obviously of little concern to the “gang of three.”
Let’s look at it another her way. Suppose we were tell Judges Smith, Arnold, and Staus that they had to relocate in a way that meant every third or fourth paycheck would be stolen and that they would be robbed of their cellphone every three months, with no recourse to a functioning police system. (Note that these dudes would be much better able to absorb such losses of income and expensive property than Ms. Guatemala-Pineda.) Or, that we were going to relocate their cushy ivory tower jobs to a place where they would be required to commute 90 minutes by public transportation every day. Or, that they might occasionally have to get down behind the bench to avoid rampant gunfire. Or, that they no longer could worship at their church of choice or openly engage in religious activities in their communities, but must limit themselves to “in-home worship” — not just during the pandemic, but permanently. Or, they had to live in a place where “GOP-Judiciacide” was at the highest level in the world and the police offered little or no protection, indeed were often involved themselves in abuse and killings of judges or turned a blind eye to the perpetrators.
Think our “tone-deaf group of guys in robes” would take a different view of “reasonable” if they put themselves in Ms. Guatemala-Pineda’s place and it were happening to them? You betcha!
A few other things to note about this gross miscarriage of justice:
Two panel members were appointed by Bush II, one by Trump;
Ms. Guatemala-Pineda originally won her case before the Immigration Judge, who after hearing all the evidence and carefully considering relocation found that Ms. Pineda has shown that there was no “reasonably available relocation alternative” in El Salvador;
The BIA baselessly remanded the case on ICE’s appeal to a new IJ to get the “preferred result” — a denial of relief and potential death sentence for a woman of color (See, e.g., Jeff “Gonzo Apocalypto” Sessions & Matter of A-B-);
In a functioning system staffed by asylum experts, this case could easily have been granted at the Asylum Office rather than kicking around the dysfunctional EOIR system for a decade — two merits hearings before the IJ — two appeals to the BIA — and Circuit Court review — all to REACH A CLEARLY INCORRECT AND UNJUST RESULT THAT NO TRUE ASYLUM EXPERT I KNOW WOULD AGREE WITH!
And, we wonder why EOIR has more than doubled the number of IJs yet still almost tripled their uncontrolled backlog to a mind-boggling 1.3 million cases! Ten years to turn an easy asylum grant into a denial (yet other cases are rushed through to denial on an assembly line without any real deli]beration or analysis) might give us a hint of why the system is totally dysfunctional and completely unfair (not to mention patently unconstitutional)!
Since EOIR is known for its incompetent record keeping, I’m willing to bet that there are thousands, perhaps hundreds of thousands, of additional “lost in space” files, warehoused somewhere that are simply “off docket” and unaccounted for.
Cases like this aren’t “academic exercises” — the judicial attitude that “screams off the pages” of this gross miscarriage of justice. They have real life, potentially deadly consequences for real humans beings, the most vulnerable of human beings, like Ms. Guatemala-Pineda. She has the same right to live as do the Circuit Judges, the BIA Judges, and the second Immigration Judge who got her case wrong!
After a decade, this monstrosity is the best our “justice system” can offer? Gimme a break! I think I could choose any three students over at the CALS Asylum Clinic at Georgetown Law who would run circles around the cavalier analysis of these three supposedly “senior jurists” in this case! Cases like this basically are indictments of our Article III system, not to mention the ongoing mockery of justice at EOIR.
The anti-asylum, anti-immigrant bias, incompetent adjudication, and systemic mis-management at EOIR are of monumental proportions! The gross inconsistencies, lack of overall immigration, human rights, sensitivity to racial justice, and “practical due process” expertise at the appellate level of the U.S. Courts and particularly at the Supremes is very disturbing and threatens the very existence and legitimacy of our legal system.
Judge Garland has the power to start fixing this, today! He must vacate all the bogus Trump-era anti-immigrant precedents; toss the entire BIA, and replace them with real judges who possess the required subject matter expertise and overriding commitment to due process and fundamental fairness; establish merit-selection criteria for Immigration Judges honoring experience representing asylum applicants in court, immigration knowledge, human rights expertise, commitment to due process for individuals under law, sensitivity to racial justice, and demonstrated practical problem solving experience.
Then, apply those criteria to new Immigration Judge selections as well as to retention decisions for all current Immigration Judges. And, for Pete’s sake, “can” the incompetent bureaucracy and get some real professionals in there who can run an independent court system — starting with a functioning nationwide e-filing system and some competent judicial training as well as assisting IJs in managing their own dockets rather than constantly interfering and trying to “micromanage” from Falls Church and the 5th Floor of the DOJ (a process known as “Aimless Docket Reshuffling,” honed by the Trump kakistocracy @ DOJ).
When you’re done, Judge Garland, you’ll have: 1) many fewer bad decisions heading off the the Courts of Appeals; 2) a functioning Immigration Judiciary of experts who can help keep order and provide helpful expert guidance to the rest of the now out of control system; and 3) a great source of “battle trained and proven” well-qualified, progressive judicial talent who can change the trajectory of the now often moribund (yeah, even some of the younger Trump appointees are basically “brain dead,” so the term fits) and dilatory Article III Judiciary and who are also available to fill other high-level policy positions with competence, common sense, and humanity.
You’d also go down in history as a judge who got out of the ivory tower and actually solved pressing problems, implemented our Constitution, and built a better, fairer court system that made a difference in human lives and the future of our nation. Perhaps, even something like “thorough teamwork and innovation, built the world’s best courts guaranteeing fairness and due process for all.” That’s quite a legacy for future generations.
I can only hope Judge Garland finally pays attention to what’s happening across the river in Falls Church and takes immediate action to end the deadly and debilitating clown show 🤡🦹🏿♂️ @ EOIR. Otherwise, I fear he will find himself buried in immigration litigation and his tenure mired in the muck of responsibility for grotesque racial injustice and “running” the worst, most incompetent, unfair, and blatantly unconstitutional “court” system in America!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! Hey Hey, Ho Ho, The Deadly EOIR Clown Show ☠️🤡 Has Got to Go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Hey, maybe next year, we could all celebrate Women’s History Month with some decisions incorporating serious scholarship by progressive women judges that actually recognize, honor, and institutionalize relief from the unfair struggles faced by refugee women and people of color.
Leon Krauze in the WashPost tells us what’s really happening at the border. WARNING: It has little to do with the myths and false narratives being peddled by the GOP, the Administration, and the media.
The current emergency at the border has found the U. S. media at its most solipsistic. Coverage seems more focused on whether the emergency should be called “a crisis” (it should) and what the political fallout for the Biden administration will be. With few exceptions — like the remarkable work of MSNBC’s Jacob Soboroff or Politico’s Sabrina Rodriguez — many news outlets seem utterly uninterested in the stories of the migrants themselves.
This is wrong because it fails to provide one crucial piece of the puzzle: the very concrete context of human suffering.
. . . .
This by no means excuses the stories of anguish and confinement that have emerged over the last few weeks from within the facilities set up by the Biden administration to deal with the number of young migrants crossing the border, nor does it absolve the president himself from delivering on his promise of a humane immigration system, diametrically opposed to Trump’s cruel policies, designed in collaboration with unapologetic racist xenophobes like Stephen Miller.
The Biden administration can and should do better. But the current debate cannot ignore the very concrete despair facing thousands of immigrant families who, under the direct threat of violence or abuse, chose to push their young children to the United States, in search of safety.
If the alternative was famine, gang violence, kidnapping, rape or sexual slavery, wouldn’t you bet it all on the journey north? If more people understood this, the political debate and the coverage surrounding the crisis would be much more empathetic and we would get closer at delivering concrete, humane solutions.
Now, let’s hear more “simple truth” from Suzanne Gamboa over at NBC News:
Suzanne Gamboa, Political Editor, NBCLatino, NBC NewsDate: October 21, 2013 Place: Washington, DC Credit: Maria Patricia Leiva/OAS Creative Commons License
America’s immigration impasse — an endless loop across different administrations — is largely self-inflicted, because Congress has repeatedly failed to acknowledge one simple thing: Immigration happens.
Accordingly, immigration laws must be continually adjusted, reformed and revised, experts say.
“People will always want to come to the U.S., and the U.S. will always need people,” said former Commerce Secretary Carlos Gutierrez, who was a top immigration adviser to President George W. Bush.
Until there is a system that allows enough legal immigration to meet the economy’s needs, there will be illegal immigration, Gutierrez said.
“That’s just part of how our economy is set up. It’s part of demographics,” Gutierrez said. “Our birthrate is not high enough to be able to fill the needs of our economy.”
The coronavirus pandemic reinforced the importance of immigrant labor to the American economy, including labor by the undocumented.
All of those people and many other immigrants, including young immigrants — often called “Dreamers” based on never-passed proposals in Congress called the DREAM Act — will play a key role in helping the economy recover from its pandemic bust.
But immigration requires periodic calibration, and the economics and the changing patterns are lost in the politics.
“People are going to move — as they are all around the world — where they think they can find places to better feed their children. That’s the bottom line, and that’s the history of migration to the United States,” said Luis Fraga, director of the Institute for Latino Studies at the University of Notre Dame.
. . . .
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Everyone should read the rest of the stories at the above link.
Degrading Ourselves As A Nation Won’t Stop Human Migration
By Judge (Ret) Paul Wickham Schmidt
“Courtside” Exclusive
March 26, 2021
Notwithstanding the endlessly disingenuous and self-centered alarmist rhetoric coming from all directions on the border mess, often mindlessly regurgitated by the press (not just Fox News), the real “crisis” involves the human lives at stake and the unnecessary human misery we are causing by failing to establish, professionally staff, and fairly and competently operate the legal refugee and particularly asylum systems required by law. This “due process crisis” actually has devastating and debilitating practical effects, starting with the dysfunctional immigration, refugee, and asylum system and the beyond dysfunctional Immigration Courts.
Heck, we don’t even pretend to comply with Constitutionally-required due process of law for asylum seekers who present themselves to us seeking life-saving refuge. Most of those who show up at legally-established border ports are told that the border is “closed” and that there is no way for them to apply. OK, so they attempt to cross between ports and immediately present themselves to the Border Patrol. But, they also are told there is no way to apply and are orbited back to some of the most dangerous countries in the world without any process whatsoever, let alone due process of law. Who are we kidding with all our dishonest pontificating about “the rule of law?”
It’s a strange way to implement the statutory command that any foreign national “irrespective of . . . status, may apply for asylum,” along with a constitutional guarantee that “No person shall . . . be deprived of life, liberty, or property without due process of law.” Gee, you don’t even need one of those fancy Ivy League law degrees to understand that language. You just have to be able to read, comprehend, and act.
What you do have to do to get where we are today is to view asylum seekers and other migrants (predominantly people of color) as less than human — “non-persons” in a constitutional sense. It’s what some of us call “Dred Scottification of the other” and it has accelerated over the past four years — not just in immigration.
The whole idea of a “court system” being run by the Executive who also is the chief of enforcement is beyond constitutionally preposterous. It’s a “negative tribute” to the Supremes and other Article III life-tenured judges who have grown so distant from their own humanity and immigration stories as to become willfully blind to the ongoing farce that constitutes “justice” and “due process of law” for asylum seekers and other immigrants in the U.S.
Today’s nearly non-existent “asylum system” is a deadly and illegal “catch 22,” with the Supremes sitting in their marble palace refusing to do the primary task that justifies their continued existence: enforce the Constitution against Government misbehavior and in favor of the “little guys” and the “vulnerable.” No thanks, not up to the job!
The real tragedy is that there are plenty of folks out here with the knowledge, integrity, courage, and ability to establish a legal system that would actually comply with out laws, our Constitution, and further offer the hope of constructively addressing some problems before refugees arrive at our borders. But, they remain “benched,” even by the Biden Team. So the “good guys”are going to keep attacking the corrupt and broken system in court and at the polls for as long as it takes to get some course correction — years, decades, centuries — ask most African Americans how long it takes to achieve the true justice that America promises to all, but historically has only delivered to some.
In the long run, a fair system would undoubtedly accept many more legal refugees and asylum seekers. That’s what happens in refugee situations — it’s the core of what we call “forced migration” — when you sign on to international conventions intended to prevent the “next holocaust,” and you fairly and humanely apply the rules meant to protect refugees and those who face torture. And, as they have in the past, the overwhelming number of refugees and asylees, like the overwhelming majority of immigrants (essentially all of us, except Native Americans) will adapt, fit in, and contribute to the health, wealth, and future of our nation. They will change, but so will we — ultimately for the better!
Sure, America wouldn’t be as white, “Christian” (to the extent that adherence to a nominal Christian denomination, rather than actually performing Christ’s extremely difficult, self-sacrificing, risky, compassionate mission, defines Christianity), and nominally heterosexual as it was when White Nationalist myths and whitewashed history ruled the roost. But, it would be a better nation — one that actually has a chance of prospering, realizing the full potential of all its residents, and leading the world in the 21st century. A nation that could devote more human, natural, and monetary resources to building and exporting greatness, rather than to an endless stream of cruel, inhuman, stupid, and wasteful enforcement and deterrence gimmicks.
Bottom line, folks are going to come to America, as they have throughout history. Some will stay, some won’t. But, come they will, unless and until those like Trump and the GOP create such a mess that our own people start fleeing to foreign shores. Immigration, regardless of status, is a sign of strength. Xenophobia a sign of fatal weakness.
Our real choice isn’t whether we want to “close” borders, bar refugees, and abuse children as the Cottons, Cruzes, Millers, and Hawleys advocate. It’s whether we create a robust, orderly, rational legal system to screen, regulate, and distribute the inevitable flow or whether, as we have for the past decades, we force millions to reside and work underground — part of an “extralegal” or “black market” system that pols of both parties and those who profit from that underground system have created.
Sprawling mismanaged enforcement bureaucracies, dysfunctional “courts,” armies of publicly-paid lawyers defending the indefensible, for-profit civil prisons, big agriculture, hospitality giants, loads of upwardly mobile professionals who need child care to pursue careers, communities that live off of marketing ethnic culture, meat packing conglomerates, architects and construction firms who are “building America,” even news media fixated on hyping the problem rather than fixing it (see, e.g., yesterday’s Biden press conference), the list of those who profit from a talented, hard working, reliable, loyal, yet politically and socially disenfranchised, workforce is endless.
Even the GOP’s “Cotton-Cruz crowd” benefits from having an imaginary enemy to rant and rail and gin up hate against — safe in the knowledge that the tanking of our economy, upheaval of society, and possible threat to their privilege that would result from realizing their disingenuous call to boot the entire undocumented population will never happen. Their kids and grandkids can continue to reap the privilege that comes from exploiting an essential, yet politically neutered, workforce. It’s really more about institutionalizing racism to maintain economic and political power over the eventual non-white majority that drives their bogus and ugly narratives.
We can degrade ourselves as a nation, but it won’t stop human migration!
🇺🇸⚖️🗽🧑🏽⚖️Due Process Forever! It’s a vision based on a written promise, not a “pipe dream!”
Anna Marie Gallagher, Esquire Executive Director CLINIC PHOTO: CLINIC website
I wake every morning to follow news of our sisters and brothers, thinking especially of the children, who have set out from places like El Salvador, Guatemala, Honduras, Venezuela, Cuba, Nicaragua and Haiti–even as far as Cameroon and the Democratic Republic of the Congo–to seek protection at our doorstep. My heart aches for them and I pray for their safety.
Today’s readings remind us of our obligation, as followers of Christ, to speak the truth and follow the light. The truth is that people are suffering, both young and old, and desperately seeking safety and welcome in our country. Yet U.S. authorities and policies are often hostile to receiving them. Their arrival at our doors is deemed a “crisis.” As followers of Christ, we must and we will stand up, act bravely and generously, to speak the truth and welcome them.
The real crisis is not at the border, but within the families forced to make the difficult decision to leave, and in the hearts of those who refuse to follow Jesus’ light. We, as Christians, must walk in the path of light as Jesus instructs, and do the right thing. We must make room at our table and remember that we all belong to each other. We must take Jesus’ words to heart and remember to love the mother, the father and the child at the border as if they were our own.
This is not a crisis for us, although it certainly is for the men, women, and children who are fleeing. For us it is an opportunity to act out our faith precisely as Jesus taught.
As these sojourners leave their homes in search of safety, they may repeat a prayer similar to this: “Even though I walk in the dark valley I fear no evil; for you are at my side.” The rhythm of the words and their meaning must comfort them, knowing that God is their companion. What happens when they arrive here is up to us. We could look to God and ask what He would do, but we already know the answer.
Anna Gallagher is Executive Director of the Catholic Legal Immigration Network, Inc. (CLINIC).
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Unfortunately, too many folks promote a bogus picture of what’s at stake at our border. The “alternatives” they trumpet are basically increasing family separation and suffering in Mexico or somewhere else as pointed out in this Politico article by Jack Herrera:
The result is a new form of family separation — but instead of happening at the hands of federal agents in American government facilities, it’s taking place, family by family, in camps like the one Janiana lives in. The fact that minors won’t be expelled like everyone else has rapidly spread by word of mouth across the length of the border. And while many families choose to stick together, the pressure to separate weighs heaviest on the most vulnerable — families who fear death, whether from persecutors who have followed them to the border, or from extreme hunger.
For Janiana, the possibility of being sent back to Honduras reads as a death sentence. She shows me the scars from her torture at the hands of a powerful gang back home that her family got on the wrong side of. Fearing further reprisals, Janiana fled with her sister’s children, a teenage nephew and teenage niece as well as the niece’s several-month-old son. The children haven’t been reconnected with their mother yet, who successfully entered the U.S. to begin the process of claiming asylum in 2019, before the pandemic. Staying in Mexico, Janiana says, was never an adequate long-term solution and increasingly feels intolerable. She says the family already tried to make a new life in the southern state of Oaxaca, but danger pursued them there, where her nephew was murdered.
Today, Janiana says her only hope is that the U.S. will begin to accept asylum seekers again, especially as the country gets a better hold over the pandemic. At the moment, she says with resignation, “all we can do is wait.” Though there is one painful exception on her mind: If she were somehow able send the baby across alone, he might be allowed to stay.
“It breaks my heart to even think about it,” she says.
Why not get the trained Refugee Officers, Asylum Officers, Immigration Judges, ORR child services officers, and pro bono lawyers in place to comply with our legal obligations in a robust, timely, fair, and efficient manner?
Why not put experts, like Wendy Young of Kids in Needs of Defense, who understand how our system should work in charge of the welfare of the children? Why not put someone who understands the practical and legal needs at the border, like former Immigration Judge Ilyce Shugall, in charge of the Immigration Court response? Why not put someone like retired Judge Paul Grussendorf, who has also been an Asylum Officer and a UNHCR representative, in charge of the Asylum Office response? Why not put retired Assistant Chief Immigration Judge Robert Weisel, who worked with the UNHCR after retirement, in charge of coordinating the response with NGOs and the private sector?
Yes, the Trump regime definitely left a dismantled and dysfunctional immigration bureaucracy and structure behind. But, just repeating that time after time sounds more like an excuse than a plan or a solution.
Sure, it won’t happen overnight. But, it won’t happen at all without different folks in charge at the “retail level.” I see little evidence of any progress on a real long-term plan and the short-term response is also an unnecessary mess, given that the Biden Team has had more than four months since the election to get a new structure and new personnel in place.
While there are a few “bright spots,” like Michelle Brané and Katie Tobin, I sincerely doubt that the group in charge right now is capable of solving the practical problems in rebuilding and improving our asylum and immigration systems. Nowhere is that more obvious than at EOIR, where the dysfunctional “clown show” 🤡 stumbles on, for no apparent reason.
Many of us keep trying, to no avail, to warn Judge Garland that he literally is sitting on a powder keg with the fuse lit and burning.💣 I guarantee that the next “manufactured crisis” will be when the current group of asylum cases coming from the border hit the broken, dysfunctional, ridiculously and unnecessarily backlogged, grotesquely mismanaged, ill-prepared, and anti-asylum-biased “Immigration Courts.” Waiting for the inevitable disaster, rather than bringing in a new “A Team” from the NDPA to start solving the problems now, is a monumental mistake by Judge G.
Why not fix the system to run the way it should, rather than spreading myths, throwing spitballs, and ignoring the unfolding human tragedy that can’t be solved with draconian enforcement and lame “don’t come” messages directed at forced migrants fleeing for their lives?
“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Morales Lopez v. Garland, 5th Cir., 03-19-21, unpublished
PANEL: Southwick, Graves, and Engelhardt, Circuit Judges
OPINION BY: James E. Graves, Jr., Circuit Judge
KEY QUOTE:
Morales Lopez argues that the IJ improperly determined that she did not make a sufficient showing of past persecution and a well-founded fear of future persecution. Regarding past persecution, Morales Lopez argues that the IJ erroneously (1) required each incident of harm to rise to the level of persecution, (2) failed to consider all relevant incidents of harm, (3) required a showing of physical harm, and (4) failed to consider significant liberty deprivations suffered by Morales Lopez and her children. Morales Lopez further argues that (5) the substantial evidence compels a finding of past
10
Case: 18-60251 Document: 00515788451 Page: 11 Date Filed: 03/19/2021
No. 18-60251
persecution and (6) the IJ erred by failing to consider Morales Lopez’s psychological harm.
Regarding a well-founded fear of future persecution, Morales Lopez argues that the IJ erroneously (1) applied a preponderance-of-the-evidence standard instead of a reasonable-possibility standard; (2) failed to evaluate Morales Lopez’s fear of future persecution using the four-part test set forth in In re Mogharrabi; (3) conflated the past-persecution and well-founded-fear- of-future persecution analyses, (4) required Morales Lopez to offer direct proof of her persecutors’ motives, and (5) mischaracterized Ungar’s testimony. Morales Lopez further argues that (6) the substantial evidence compels a finding of a well-founded fear of future persecution.
Although we neither agree with nor reach all of Morales Lopez’s arguments, we agree with her overarching point: the IJ and the BIA improperly determined that Morales Lopez did not make a sufficient showing of past persecution and a well-founded fear of future persecution. We address Morales Lopez’s arguments in turn.
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Hon. James E. Graves, Jr. U.S. Circuit Judge Fifth Circuit PHOTO: Wikipedia
Too bad this is unpublished. Once again, a Circuit Court has to provide the detailed analysis required by due process after the supposedly “expert” BIA commits error after error!
When they get below the “caption line” in an opinion, things go south fast for EOIR judges. I’d attribute that to a deadly combination of poor judicial selection, defective training, a “culture of prejudgement and denial,” large-scale overuse and misuse of the woefully inadequate and outdated “contemporaneous oral decision” format (not used by any other “court” for decisions of this importance and complexity), “haste makes waste” gimmicks, absurd “quotas,” inane “performance ratings,” constant political interference with decision-making, disastrously incompetent unprofessional docket management, and maliciously incompetent “leadership” from the DOJ. It’s an ungodly and inexcusable mess.
Sadly, my grim description doesn’t begin to capture just how embarrassingly unjust, unfair, dysfunctional, and just plain terrible EOIR’s “killer clown show” 🦹🏿♂️🤡 is. Not to mention that it is clearly unconstitutional, and a “livingrepudiation of due process” as currently constituted and operated. Put this pathetic imitation of a “court system”out of its misery before it causes any more destruction of human lives and irreparable damage to our justice system!
Judge Garland, where, oh where, are you in American justice’s hour of need? Stop this disgraceful mockery of justice, humanity, and common sense! Now!
In the meantime, as I had warned, Judge Garland’s previously sterling record as a jurist 👨🏻⚖️ is being tarnished daily by association with some of the worst jurisprudence out there, courtesy of America’s Star Chambers,🏴☠️ a/k/a “Clown Courts,” 🤡🦹🏿♂️ now wholly owned by HIM, and “operated” in HIS name!
🇺🇸⚖️🗽Due Process Forever! Clown Courts🤡🦹🏿♂️ & Star Chambers☠️🏴☠️⚰️, Never!
Donald M. Kerwin Executive Director Center for Migration Studies
In a new essay for the Center for Migration Studies of New York (CMS), CMS’s Executive Director Donald Kerwin writes:
The number of unaccompanied children and asylum-seekers crossing the US-Mexico border in search of protection has increased in recent weeks. The former president, his acolytes, and both extremist and mainstream media have characterized this situation as a “border crisis,” a self-inflicted wound by the Biden administration, and even a failure of US asylum policy. It is none of these things. Rather, it is a response to compounding pressures, most prominently the previous administration’s evisceration of US asylum and anti-trafficking policies and procedures, and the failure to address the conditions that are displacing residents of the Northern Triangle states of Central America (El Salvador, Guatemala, and Honduras), as well as Venezuela, Cuba, Haiti, and other countries…
The real immigration crisis is not at the border, but in the failure to respond effectively to the conditions driving forced migration, to establish orderly and viable legal immigration policies, to legalize the increasingly long-tenured undocumented population, and to reform and invest sufficiently in the US asylum and immigration court systems.
Thanks Don for speaking out against the scandalous GOP complete “border BS,” all too often parroted by the so-called “mainstream press.” Read the rest of Don’s essay at the link.
Don has spent his entire career solving migration and human rights problems. The Biden Administration and everyone who believes in American democracy should listen to “practical experts” like Don, rather than ignorant, racially-motivated GOP politicos and White Nationalist nativists spouting the “same old, same old” myths, fear-mongering, and unhelpful “non-solutions.”
If xenophobic rhetoric, cruelty, officially-sanctioned child abuse, evading our own legal and humanitarian responsibilities, and “enforcement only” were the “solutions,” the “problem at the Southern Border” — which has existed in one form or another for over a half century, would long ago have been solved. We can’t solve humanitarian situations that create forced migration with unilateral law enforcement gimmicks and cruelty toward the humans fighting for their lives. Human migration long pre-existed the formation of nation states and establishment of national boundaries.
Administration after administration, of both parties, have squandered time and taxpayer money on unsuccessful efforts to “enforce their way” out of forced migration situations. Contrary to GOP blather, Democratic Administrations have been almost as fixated as the GOP with unsuccessfully “detaining, deterring, and enforcing” their way out of human problems that demand more thoughtful human solutions.
All Administrations at some point prematurely claim that their efforts have “succeeded.” None actually have succeeded in addressing the causes of the migration. Therefore, none of these “false solutions” proves “durable.”
Significantly, Don is one of the few commentators to fully grasp the integral connection between the Trump regime’s complete destruction of the integrity of the Immigration Courts and its lawless, yet highly ineffective, border policies.
Real solutions don’t kill, harm, and maim refugees and forced migrants, encourage criminal cartels and corrupt foreign officials to prey on them, and stack up desperate humans in dangerous conditions just across the border because US Government officials were too biased and incompetent to operate under any semblance of the rule of law.
We can abide by our own laws, international norms, our Constitution, human decency, and common sense. It isn’t rocket science.
But, it does require a combination of expertise, courage, humanity, and practical problem solving that has been conspicuously absent from our governing structure since 2017, and severely undervalued before that.
Also, it’s certainly not that the Biden Administration has suddenly re-established due process and the rule of law at the border. Far from it!
The vast majority of those arriving at the border, even those who are applying at legal ports of entry, are unceremoniously and summarily removed without any process at all, let alone due process of law. This is all based on a largely bogus Trump-initiated exercise of authority by the CDC to use COVID-19 as a pretext to suspend the rule of law and constitutional due process at the border.
Moreover, we shouldn’t forget that even with the Biden Administration’s gradual efforts to re-establish a legal process for asylum seekers, unaccompanied children are still being held in Government detention for far longer than the 72-hours permitted under law. This problem won’t be solved, as some GOP nativists incredibly suggest, by dumping kids back across the Mexican Border, returning them to danger in their home countries without regard to their individual situations, or forcing them to turn to smugglers to make their way to relative safety in the interior of the U.S.
Nor will it be solved by long-term detention in disgraceful and inhumane “Baby Jails!” Ask my Georgetown Law colleague and author Professor Phil Schrag of the CALS Asylum Clinic about that!
Interestingly, some of the biggest complainers spreading the “open borders myth” are Greg Abbott and other Texas GOP politicos who have prematurely “reopened their state” in the middle of a pandemic in blatant contravention of best medical and public health advice. So, you can summarily dismiss their “crocodile tears” and bogus “hand wringing” about public health and safety.
That’s particularly true since the GOP is just coming off a massive example of how their incompetent mis-governance of Texascaused unnecessary misery and loss of life among Texas residents as a result of a highly predictable and long-foreseen “weather emergency.” Why does the mainstream media often continue to treat these “political hacks,” who couldn’t “govern” their way out of a paper bag, as credible spokespersons on anything, let alone human rights situations of which they have no expertise whatsoever?
🇺🇸🗽⚖️Due Process Forever! Re-Establish The Rule Of Law, Including Full, Robust Humanitarian Protections At The Border& In Our Disgracefully Dysfunctional Immigration “Courts.”
With respect to the new evidence that Cuesta Rojas presented to the BIA regarding corroboration, the BIA stated in summary fashion in its opinion that “the newly submitted evidence does not address or resolve the credibility concerns raised by the Immigration Judge,” and then added that it declined to “remand [the] proceedings to the Immigration Court for further consideration” of that evidence.
At oral argument before us, the government represented that, in the event we were to vacate and remand the agency’s
continue[] to be a common government method for controlling independent public expression and political activity.”
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decision even without addressing these findings regarding corroboration as such, the evidence concerning corroboration just described that the BIA appeared not to consider in depth would be treated as part of the record for the IJ to review. And we understand, in consequence, that the documents in question — which purport to corroborate two attacks that resulted in injuries to Cuesta Rojas, his political activity in Cuba, and the concern it drew from Cuban authorities — will be given such weight as it may warrant.
In light of that representation, and the fact that our ruling as to the discrepancies finding suffices to require us to vacate and remand, see Mukamusoni, 390 F.3d at 122 (explaining that it is error to treat an asylum applicant’s testimony as if it were “weaker than it actually was” and to then “demand[] a higher level of corroboration” on that mistaken basis than otherwise would be required); see also Mboowa, 795 F.3d at 229 (explaining that “[i]n the ordinary course we do not . . . attempt to read the tea leaves” in the event that a central aspect of the agency’s credibility assessment is flawed); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 25-26 (1st Cir. 2007) (en banc) (similar),7 we need
Cf. also 8 C.F.R. § 1208.13(a) (“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.”); 8 U.S.C. § 1158(b)(1)(B)(ii) (similar).
7
– 29 –
not resolve the aspects of Cuesta Rojas’s petition for review that concern the IJ and the BIA’s corroboration findings. Rather, consistent with the government’s representation about what the record will consist of on remand, we remand those matters to be decided by the agency in a manner consistent with this opinion, and on the understanding that the new evidence that Cuesta Rojas supplied that the BIA appeared not to evaluate in depth will be given the weight that is warranted.
IV.
We grant the petition for review, vacate the decisions of the IJ and BIA denying Cuesta Rojas’s application for asylum, withholding of removal, and CAT protection, and remand for further proceedings consistent with this opinion.
2) 8th Cir. — BIA Bobbles “No Brainer” In Absentia Reopening By Ignoring Evidence!
This court concludes that the BIA abused its discretion by applying a heightened evidentiary standard and disregarding record evidence in concluding Petitioners failed to overcome the presumption of delivery of the NOH. In determining whether a noncitizen has overcome the presumption of delivery by regular mail, the agency considers (1) the noncitizen’s affidavit; (2) affidavits from family members or others with personal knowledge of whether notice was received; (3) the noncitizen’s due diligence, after learning of the in absentia order, in seeking to redress the situation; (4) prior applications for relief, demonstrating the noncitizen had an incentive to appear, and any prima facie evidence in the record or the respondent’s motion of statutory eligibility for relief; (5) previous attendance at immigration hearings, if applicable; and (6) any other evidence indicating possible nonreceipt of notice. See Diaz, 824 F.3d at 760 (citing Matter of M-R-A-, 24 I. & N. Dec. 665, 674 (BIA 2008)); see also Ghounem v. Ashcroft, 378 F.3d 740, 744-45 (8th Cir. 2004) (while a strong presumption of effective delivery is appropriate where service is made by certified mail, a weaker presumption and lesser evidentiary requirements are appropriate where service is by regular mail). Petitioners provided two affidavits, sought to redress the situation by moving to reopen proceedings shortly after the order of removal was entered, applied for relief and protection for removal, had no occasion to appear for any prior immigration hearings, and regularly
-3-
attended immigration appointments both before and after the removal order was entered. Considering this evidence, this court concludes that remand is necessary so that the agency may consider all relevant evidence Petitioners proffered—both favorable and unfavorable—under the weaker evidentiary standard applied in cases where notice has been delivered by regular mail.
The petition for review is granted, the decision of the BIA is vacated, and the case is remanded for further proceedings.
_________________
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Ah, haste makes waste. Been saying it for years! It also harms and potentially kills☠️⚰️🪦 vulnerable individuals seeking fairness and undermines the credibility of our entire justice system. Other than that, what’s the problem?
It’s really nice that the 1st and 8th Circuits cared enough and took the time to do a proper judicial analyses of these cases, to make up for the BIA’s shortcomings. But, frankly, that’s not the way the system should work!
Obviously, constant remands and “churning” of cases wrongly decided at several levels of EOIR is one of many self-created problems fueling the astounding 1.3 million case backlog. And, to state the obvious, that unnecessary backlog and the lack of effective expert judicial guidance on applying asylum law fairly and efficiently is actively hampering the Biden Administration’s efforts to re-establish the rule of law at the border after four years of unmitigated disaster and dismemberment of our asylum legal system by the defeated regime. It’s just a variation on “Aimless Docket Reshuffling” which was on steroids at EOIR under the Trump regime.
And, most respondents, particularly unrepresented ones, can’t count on this type of careful, searching analysis from Article III Circuit Courts. Unhappily, many Circuit decisions simply “paper over”EOIR’s errors by hiding behind the deferential “standard of review” as an excuse to rubber stamp the BIA without a thorough examination of the merits. For starters, this whole system of supposedly fair and impartial expert judges actually controlled by Executive Branch politicos doing the bidding of DHS Enforcement is clearly unconstitutional under Fifth Amendment due process as currently constituted and “operated” (using that term lightly) under EOIR.
As I predicted, it hasn’t taken long for Judge Garland’s name to become associated with some really bad jurisprudence and boneheaded defenses stemming from the broken DOJ. And, this is just the beginning!
Sure, most of us are going to “cut him a break” on these travesties that actually originated during the Trump regime. But, “the pipeline” and volume is such that if Judge Garland doesn’t “pull the plug” on EOIR and OIL soon, he will “own” this ongoing disparagement of American justice — lock, stock, and barrel! The chance to make a “favorable first impression” evaporates rapidly, in government as well as the private sector.
And, patience runs thin when you are being beat up and your clients treated unfairly by a “star chamber” ☠️ under the control of someone who should know better.👨🏻⚖️ Much better!
EOIR must be put out of its misery, as well as the misery and irreparable harm it causes humanity. 🏴☠️ Sooner, rather than later! Come on, Judge G — step up to the plate before it’s too late! ⚾️
There, of course, are pressing humanitarian issues to address along the U.S./Mexico border. But to say that this issues are a result of “open border policies” is simply wrong. No major party political leader to my knowledge is calling for “open borders.” Rather, the “open borders” mantra is something that Republican politicians invoke to attack immigration policies that they do not like.
Democrats have another explanation for the current situation at the border. House Speaker Nancy Pelosi told ABC News’ “This Week” that the policies of the Trump administration, which radically transformed immigration enforcement from 2017-21, are to blame for the recent increase in unaccompanied migrant children at the southern border,
“This is a humanitarian challenge to all of us,” Pelosi said. “What the administration has inherited is a broken system at the border and they are working to correct that in the children’s interests.”
Thanks, Kevin, for adding some reality and perspective to the discussion. You can read Abbott’s statement at the link. Notably, the Republicans have offered no constructive solutions to this humanitarian issue, either in or out of power, other than to engage in child abuse and continually violate the laws, both international and domestic.
The criticism from the likes of Abbott, who as “Governor” of Texas has presided over a power grid disaster that actually killed and threatened the health of Texas residents and who has thumbed his nose at public health recommendations that save lives, is particularly disingenuous. And, naturally, the dangerous and deadly results of Abbott’s and the GOP’s mis-governance of Texas have fallen disproportionately on Latinos and other communities of color. The Abbott/GOP response has been to attempt to disenfranchise citizens of color in Texas!
The same can be said of GOP House Minority Leader Kevin McCarthy whose main contribution to America’s safety and security has been to whitewash the deadly assault on our Capitol that his “supreme leader” orchestrated. Again, a person with no credibility.
Those seeking a more nuanced and accurate picture of what’s really happening at the Southern Border should read the lengthy report of Arelis Hernandez in the WashPost:
Migrants are not overrunning U.S. border towns, despite the political rhetoric
Leaders in Texas border towns say their economies are suffering because of pandemic restrictions on cross-border travel.
. . . .
City officials and nonprofit organizations can’t force families to stay in the hotels but Darling, the McAllen mayor, said so far no one they track has left isolation prematurely.
“We tell them if they want to leave on our buses, they need to follow our rules,” he said. The city has spent nearly $200,000 of taxpayer money it hopes will be reimbursed by the federal government, but Abbott’s rejection of Federal Emergency Management Agency funding from the Biden administration will complicate matters for localities.
Darling said his city is full of compassionate people, and they are doing the rest of the country a favor in taking care of migrant families on the front end of their journeys.
Along the border, faith organizations, local emergency managers and immigration advocates say they have learned from previous surges how best to coordinate. They are preparing to receive flights and buses full of asylum seekers, mostly recently released families with small children, to ease capacity issues that critics say the Department of Homeland Security officials should have anticipated.
Coronavirus restrictions have put capacity limits on shelters run by community organizations on the U.S. side of the border, but so far the numbers are not at 2019 levels, said Pastor Michael Smith of the Holding Institute in Laredo. Shelters and temporary detention facilities operated by the U.S. Health and Human Services’ contractors, however, are over capacity.
But without more orderly intervention, the numbers could overwhelm. The Biden administration plans to deploy FEMA to the border to help with the migration surge as the administration tries to quickly scale up space to temporarily hold and process migrants and unaccompanied children — many between the ages of 13 and 17.
“The failure to have an administrative process is causing a humanitarian crisis,” Smith said during a news conference organized by Laredo activists. “There are solutions to the issues, but they are not solutions that call for militarizing the border.”
“We need robust infrastructure at our ports of entry to handle people seeking asylum,” said Tannya Benavides, of the No Border Wall coalition. “We need more lawyers and judges, not more troops or technology.”
Arelis R. Hernandez Southern Border Reporter Washington Post
Great article by Arelis! I highly recommend it. My only caveat is that we need not just more lawyers and judges, certainly correct, but better Immigration Judges who are experts in asylum law, have experience representing asylum seekers, and can fairly, efficiently, and consistently identify those with valid claims to protection under the law before it was perverted by the Trump regime. Also, the Government could use more qualified Asylum Officers who could screen and finally adjudicate the grantable cases, under correct legal criteria set forth by better-qualified Immigration Judges and a completely new due-process-human rights-oriented BIA without even having to send the cases to court.
These are the bold steps necessary to get out of the cycle of “same old, same old” — which inevitably ends with harsh measures directed at asylum seeking families and children that do nothing to address the causes of forced migration. “Enforcement-only deterrent measures” never have solved, and never will solve, the long-term problem in a constructive manner. The cycle of failed, yet expensive and inhumane deterrents, just keeps repeating itself Administration after Administration.
I have already suggested tapping into retired Asylum Officers and other retired USCIS Adjudicators with the necessary asylum expertise. I’m betting that my retired Round Table colleague, and former Asylum Officer and UN Official, Judge Paul Grussendorf would be available to help lead such an effort.
To solve this problem, the Biden Administration must put some expertswho understand the practicalities of refugee and asylum situations in place and let them solve the problem. It should come as no shock that the current gangs at DHS and EOIR —largely holdovers who participated in the Trump regime’s cruel, failed, and illegal “enforcement only” policies at the border — are not going to be able to get the job done. At least they can’t without some effective “adult supervision” from those committed to humane, legal, and timely processing of asylees and other migrants in full compliance with due process and best practices.
The Trump regime eschewed any attempt to build a fair, effective, timely asylum adjudication system that complied with domestic and international law as well as due process. Instead, they concentrated on eradicating the entire U.S. refugee and protection system through regulations (many enjoined), Executive Orders (some enjoined), bogus administrative “precedents,” and stacking the Immigration Courts with overtly anti-asylum or “go along to get along” “judges.” Right now, the entire system is in shambles — the most obvious example being the totally dysfunctional mess at EOIR!
To “win the game,” the Biden Administration needs to get the right players on the field. While there has been some notable progress, that hasn’t happened to date. And, with politicos like Abbott and McCarthy stirring the pot daily, time is running to get the “A Team” in place to combat their lies, distortions, and nonsense.
The union is hopeful that President Biden will reverse the decision, but they have yet to see action. “I know the new administration is extremely busy; I think this is a very important and significant issue,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, a union that represents many high-skilled federal employees.
As the administration begins to process asylum seekers in the “Remain in Mexico” program and otherwise roll back Trump’s asylum blockades, the court system will need to run efficiently and fairly. As it is, the immigration court backlog—largely created by Trump policies—is at 1.3 million cases.
Trump’s decertification of NAIJ “was to retaliate against NAIJ for our strong voice and our strong call to demand transparency and accountability,” said Amiena Khan, NAIJ president. The union’s previous president, A. Ashley Tabaddor, is now chief counsel at U.S. Citizenship and Immigration Services. The union is hopeful that Biden will take action, though nothing has yet been forthcoming.
“We are very supportive of the current Biden administration and appreciate his strong support for unions and collective bargaining,” said Khan.
Biden’s position on unions in other contexts has been clear. Some labor historians have said he is the most pro-labor president in their lifetimes. In an executive order in January, Biden directed the Office of Personnel Management to make recommendations concerning raising the minimum wage for federal employees to $15 per hour. In February, Biden voiced support for Amazon workers’ right to organize, an unprecedented level of support from a sitting president.
Almost immediately, the immigration judges’ union asked if he would follow up by voluntarily recognizing their union. No action has been taken. A White House spokesperson has not yet responded to a request for comment.
Merrick Garland has now been confirmed as attorney general, perhaps setting the stage for quicker movement. But the union says that, despite immigration judges being part of the Justice Department, an attorney general appointment isn’t needed to reverse the decision. The administration can voluntarily recognize the union.
. . . .
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Over the last four years, the NAIJ was was one of the few “inside sources” of truth about the Trump Administration’s misconduct and gross mismanagement — “malicious incompetence” —at the DOJ. Obviously, in the Trump Administration speaking truth to power was a punishable offense. NAIJ was no exception.
This union representing Immigration Judges was illegally “decertified” in an absurd decision by the FLRA finding that IJs were now “management officials” on the basis of actions that had reduced them to little more than “deportation clerks” carrying out the regime’s White Nationalist, xenophobic agenda.
Not only did IJs continue to have no control whatsoever over their staff and working conditions, but they were unceremoniously stripped of their already-limited authority to professionally manage their dockets and to exercise independent discretion. They were subjected to due-process-killing “deportation quotas” and bogus “performance evaluations” by unqualified and largely out of touch “supervisors” — few, if any, of whom handled full dockets themselves — that would have been more suited to entry level deportation officers than supposedly independent and impartial “judges.” Meanwhile, the real primary cause of uncontrollable backlogs and endless delays at EOIR — “Aimless Docket Reshuffling” by politicos at EOIR HQ and the DOJ, and horrible, anti-due process, out of touch with reality “precedents” by biased AGs and the BIA — continued unabated.
Always subject to control by their “handlers” at EOIR HQ and DOJ, IJs were further humiliated by being barred from teaching at professional seminars and writing for scholarly publications. Their dockets and roles were defined by highly unqualified politicos who had never presided at an immigration hearing in their careers! Talk about screwed up!
Who ever heard of a “judiciary” that operates like a totally dysfunctional bureaucratic agency — that has most recently been run by non-judicial personnel who lack expertise, experience, and a commitment to due process — but were focused on carrying out an overtly anti-immigrant, anti-human rights, anti-due-process White Nationalist political agenda!
To add to this outrageously politically-biased scenario, to reach its ludicrous result the FLRA had to steamroll both their prior precedent on the same issues and overrule the decision of their own Regional Director.
Presently, the NAIJ is the only organization providing due-process oriented training directly to Immigration Judges. The leadership of the NAIJ stand out as some of the most qualified, courageous, and talented judges on the immigration bench.
Judge Garland and the Biden Administration simply can’t afford to leave the NAIJ out in the cold if they intend to fix the now totally-screwed-up EOIR and bring constitutionally-required equal justice under law to the broken and reeling DOJ. You simply can’t promote racial justice in America while running a “court” that has institutionalized racial biases and mocks, tramples, and ignores due process and equal justice on a daily basis!
FULL DISCLOSURE: I am a proud retired member of the NAIJ!
Anybody remember the last time we interpreted the law or facts in favor of a human? https://www.flickr.com/photos/rasputin243/ Creative Commons License
“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”
Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and
33
legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7
3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.
After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded
2
again that Mr. Ni had failed to show a material change in country conditions.
This conclusion is unsupportable. Mr. Ni’s evidence of worsening
conditions in China largely mirrored his wife’s evidence, which had led us
to grant her petition for review. Mr. Ni’s evidence was even stronger than
his wife’s because China had recently adopted a regulatory crackdown on
practicing Christians. We thus grant Mr. Ni’s petition for review.
“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”
America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!
Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!
Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field.Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!
The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!
Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!
Determining Political Opinion: Problems and Solutions
Regarding political opinion, the refugee law scholar Atle Grahl-Madsen famously explained that refugee protection “is designed to suit the situation of common [people], not only that of philosophers…The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.”1 A recent decision of the U.S. Court of Appeals for the Second Circuit provides an opportunity to reflect on this premise.
In Zelaya-Moreno v. Wilkinson, a young man was targeted for recruitment by MS-13. On two occasions, Zelaya directly announced to the gang’s members his reason for refusing to join: because gangs were bad for his hometown and country. Both times, the gang members responded by beating him, fracturing his arm the second time. They also threatened to kill him if he continued to refuse to join. The questions raised are whether Zelaya’s instinctive, simply-worded response expressed a political opinion, and if so, did that opinion form part of the reason for the beatings and threat?
The Immigration Judge recognized Zelaya’s statement to the gang to be a political opinion for asylum purposes. However, the IJ wasn’t persuaded from the record that Zelaya’s opinion was why the gang beat him. As expressed by the IJ, the beatings were caused by “Zelaya’s refusal to join the gang, irrespective of the reasons.” It doesn’t seem that the IJ considered whether the gang members imputed a political opinion to the act of refusal per se.
On appeal, the BIA took a far more extreme position, stating that because gangs are not political organizations and their activities are not political in nature, “expressing an opinion against their group is not expressing a political opinion.” This happens to be a position that EOIR and DHS (in defiance of much circuit case law and expert opinion to the contrary) later sought to codify in regulations that fortunately remain enjoined at present.
The Second Circuit in Zelaya-Moreno rejected the Board’s narrow view of political opinion. In fact, the court only last year, in its decision in Hernandez-Chacon v. Barr, recognized the act of resisting rape by members of the very same gang in El Salvador as the expression of a feminist, anti-patriarchy political opinion. Significantly, the victim in that case hadn’t stated any opinion to the gang members; it was only years later in front of the immigration judge that she gave her reason for resisting as “because I have every right to.”
As it has done in other decisions, the Second Circuit emphasized the need for a “complex and contextual factual inquiry” in political opinion determinations. It conducted a survey of cases in which political opinion was found, and of others in which it wasn’t. Unfortunately, the majority upheld the decision that Zelaya had not expressed a political opinion to the MS-13 members, stating that “[s]o far as the record shows, his objection to them is not rooted in any sort of disagreement with the policies they seek to impose nor any ideology they espouse.”
“So far as the record shows” is critical. I haven’t seen the record in this case, but I believe it might serve to demonstrate that while Grahl-Madsen correctly assigned equal validity to the opinions of the commoner and the intellectual, in practice, claims brought by members of the former group often require assistance from the latter in persuading adjudicators of the political nature of their words or actions.
For example, in Hernandez-Chacon, context for the petitioner’s resistance was provided by the affidavit of a lawyer and human rights expert who was able to articulate the patriarchal gender bias in Salvadoran society from which a political opinion could be gleaned from the asylum-seeker’s act of resistance alone. In another decision cited by the court, Alvarez-Lagos v. Barr, the Fourth Circuit was able to rely on the explanation of two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.”
In Zelaya-Moreno, the dissenting judge (in an opinion worth reading) was able to draw a political inference from the facts alone. It seemed that the two judges in the majority required more. But in finding the statements or actions of an applicant alone to be insufficient, is our present system of refugee protection genuinely designed to suit the situation of common people as well as philosophers?
In the view of the dissenting judge, yes. In that judge’s words, Zelaya “sought refuge here after standing up to MS members, refusing their demands that he join them, and informing them that he did not support them and considered them a blight on his native El Salvador. Our asylum laws protect individuals like Zelaya-Moreno who face persecution for such politically courageous stands.”
But in the view of the majority, Zelaya had expressed nothing “more than the generalized statement ‘gangs are bad.’ Thus, we cannot conclude that Zelaya holds a political opinion within the meaning of the statute, and therefore that the BIA erred in concluding that he was not eligible for asylum on this ground.” Would additional documentation providing the complex, contextual analysis the court mentioned earlier in its decision have delivered the two judges in the majority to the place already reached by their dissenting colleague?
The United Nations High Commissioner on Refugees is a good reference source on such issues. In its Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, UNHCR stated at para. 45 that in its view, “political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.” It continued at para. 47 that powerful gangs such as MS-13 may exercise de facto power in certain areas, and their activities and those of certain State agents may be closely intertwined. At para. 50, UNHCR stated that “rejecting a recruitment attempt may convey anti-gang sentiments as clearly as an opinion expressed in a more traditional political manner by, for instance, vocalizing criticism of gangs in public meetings or campaigns.” And at para. 51, UNHCR added that “[p]olitical opinion can also be imputed to the applicant by the gang without the applicant taking any action or making a particular statement him/herself. A refusal to give in to the demands of a gang is viewed by gangs as an act of betrayal, and gangs typically impute anti-gang sentiment to the victim whether or not s/he voices actual gang opposition.”
Had this document been included in the record, would it have been enough to persuade the majority that the BIA had erred in rejecting Zelaya’s claim that he was targeted on account of his political opinion? If so, how many pro se asylum applicants would understand the need to supplement their claims to provide this context, or know what type of document would be sufficient, or how to find it?
The Seventh Circuit had foreseen this problem 15 years ago. In a 2006 decision, Banks v. Gonzales, the court opined that Immigration Court needs its own country experts, who would operate much as vocational experts do in disability hearings before the Social Security Administration’s judges. In my opinion, an alternative approach would be for EOIR to follow the example of the Immigration and Refugee Board of Canada, which maintains National Documentation Packages that are referenced in all cases by adjudicators of refugee claims.
During my time in government, I oversaw the creation of country condition pages on EOIR’s Virtual Law Library, which were built, and continue to be updated, by EOIR’s Law Library staff. However, EOIR did not see fit to make its contents part of the records of hearing in asylum cases. It is for this reason that UNHCR’s Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador, which contains much of the same language as the Guidance Note quoted above, and which expresses the specific conclusion that “persons perceived by a gang as contravening its rules or resisting its authority may be in need of international refugee protection on the grounds of their (imputed) political opinion,”2 is found on EOIR’s own website on the country page for “El Salvador,” yet wasn’t even considered in Zelaya-Moreno.
Considering the growing number of pro se applicants, the lack of legal resources available to those held in remote detention facilities, and the short time frame to prepare for hearings in certain categories of cases, I can’t see why the EOIR country pages should not be made part of the hearing record here as in Canada. It’s possible that such a policy would have led to a different result in Zelaya.
Furthermore, the BIA hears plenty of cases involving expert opinions supporting the conclusion that those resisting gangs such as MS-13 were harmed on account of their political opinion. Issuing precedent opinions recognizing the context that politicizes statements and actions such as Zelaya’s would result in much greater efficiency, consistency, and fairness in Immigration Court and Asylum Office adjudications.
Realistically, I harbor no illusions that the recent change in administration will bring about such enlightened changes to asylum adjudication anytime soon. But we must still continue to argue for such change. As the dissenting opinion in Zelaya stated in its conclusion: “[w]hile it may be too late for Zelaya-Moreno, the BIA and the Department of Justice can right this wrong for future asylum seekers. I urge them to reconsider their approach to anti-gang political opinion cases to ensure those who stand up to fearsome dangers are welcomed into this country rather than forced back to face torture and death.” As noted above, it wouldn’t take much effort on EOIR’s part to accomplish this.
Notes:
Atle Grahl-Madsen, The Status of Refugees in International Law, 228, 251 (1966) (quoted in Deborah E. Anker, The Law of Asylum in the United States (2020 Ed.) § 5:17, fn. 3.
UNHCR Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador at 29-30.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Reprinted with permission.
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Truly wonderful, Jeffrey! One of your “best ever,” in my view! (And, they are all great, so that’s saying something.)
Imagine what could be achieved at the BIA with real judges, experts in asylum law, thoughtful, practical analysis, intellectual leadership, and inspiration to a fairer future, rather than the current Clown Show 🤡🦹🏿♂️ inventing bogus ways to ”get to no!”
As Jeffrey demonstrates, we could choose to protect rather than to reject. There has always been a tendency to do the latter at the DOJ; but, under White Nationalist nativist Jeff Sessions and his successors it has gone “hog wild” — rejection has been falsely portrayed as a “duty” rather than an extremely poor choice and an abdication of moral and legal responsibility!
Today’s BIA is basically incapable of problem solving. Time and again their strained, stilted anti-immigrant, anti-due-process, pro-worst-practices interpretations not only spell doom for those coming before them, but also promote inefficiency and backlogs in an already overwhelmed system. They also send messages of disdain and disrespect for the rights and humanity of people of color that redounds throughout our struggling U.S. Legal System.
I’ll keep saying it:Whatever positive message Judge Garland and his team at DOJ intend to send about racial justice will be fatally undermined as long as “Dred Scottification” and disdain for the due process rights of migrants is the “order of the day” at the one Federal Court System the DOJ runs: The U.S. Immigration Court! As long as EOIR is a “bad joke” the rest of Judge Garland’s reforms will fall flat!
The right judges 🧑🏽⚖️ at the BIA could turn this thing around! Remains to be seen if it will happen. But, it’s not rocket science. It just requires putting the right folks in charge, in place, and giving them the support and independence to engage in “creative problem solving.”
Judge Garland should be confirmed next week. And the confirmation hearings for Lisa Monaco (DAG) and Vanita Gupta (AAG) have been scheduled.
Some additional points:
The dissenter in the Second Circuit’s decision in Zelaya-Moreno v. Wilkinson is Judge Rosemary Pooler. Judge Pooler has had a long and distinguished career. Perhaps she would like to cap it off by becoming Chair of the BIA and leading by example;
Shows the importance of experts, which is probably why the BIA has gone out of its way to demean them and encourage IJs to ignore their evidence;
Jeffrey’s analysis supports my “Better BIA for a Better America” 🇺🇸program;
As Justice Sotomayor says: “It is not justice.” That’s my view on today’s EOIR!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Oh Boy! Three material mistakes in one asylum case! Do you think our superiors in the enforcement bureaucracy will give us extra credit on our ‘move ‘em out without due process quotas?’ Being a Deportation Judge sure is fun!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published
PANEL:GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges
OPINION BY: Judge Barbara Milano Keenan
KEY QUOTE:
Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.
Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.
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After eight years of bouncing around the system at various levels THIS “NotQuite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!
Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!
This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.
Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!
I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!
Adina Appelbaum Director, Immigration Impact Lab CAIR Coalition PHOTO: “30 Under 30” from Forbes
Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.
Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?
Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.
Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.
To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!
Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!
