http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-19/C:15-2619:J:Posner:aut:T:fnOp:N:1898108:S:0
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The case, full text at the above link, is VELASQUEZ‐BANEGAS, v. LYNCH.
I agree with Judge Posner’s bottom line that protection should have been granted on this record. But, I think that he was overly harsh on the Immigration Judge.
These would be difficult cases for any judge at any level of our system. One of the significant problems is that the Appellate Division of the Immigration Court, the Board of Immigration Appeals (“BIA”) has failed to provide adequate positive guidance on granting protection.
The overwhelming number of BIA precedent cases dealing with asylum, withholding of removal, and relief under the Convention Against Torture are denials by the BIA. But, even with asylum grant levels leveling off and actually falling slightly over the past several years, the majority of applicants for protection actually qualify for some form of relief at the trial level based on fear of persecution or torture.
The unnecessarily negative approach of the BIA in its precedent decisions both gives a misleading negative guidance to Immigration Judges and creates the impression with U.S. Court of Appeals Judges that the system is even more skewed against applicants than it actually is.
Although I agreed with the majority in Velasquez, I think that the concluding paragraph of the Judge Ripple’s dissent also makes some good points:
“Immigration cases always pose a special burden on United States judges. As Jacques Maritain so eloquently put it: “We are all wounded souls.” See Jacques Maritain, Réflexions sur lʹAmerique 87–91 (1958). Every American, including every United States judge, has a family memory that includes ancestors who came from some place where life was not as good as it is here. The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety, and security that we enjoy. When the individual suffers from a medical condition that cannot be treated as well in the country to which he is returned, basic humanitarian values make the task even more difficult. No doubt, those who must make necessary policy choices and those who must enforce those choices feel, or should feel, that same angst. But immigration must be regulated, and, in this Country, national policy is set by Congress and enforced by the Executive. Our own task as judges is limited. Because the immigration judge’s determinations were supported by substantial evidence, I respectfully dissent.”
Food for thought.
PWS
01/23/17
