Hon. Lory D. Rosenberg – Page 2 – immigrationcourtside.com

🎾 COURTSIDE TAKES THE (TENNIS) COURT WITH JEFFREY S. CHASE 🏆 — Penetrating Analysis By “Resident Pro” Jeff Chase of The Serves, Returns, Volleys, In & Out of Bounds In The “Blanco v. AG” Match, Recently Played On The Court of Appeals (3d Cir.) – It’s Not Wimbledon, But Chase’s Tips Guaranteed to Improve Your Game, or Your Money Back💸!

https://www.jeffreyschase.com/blog/2020/8/13/follow-the-bouncing-ball-persecution-and-the-shifting-burden-of-proof

Follow the Bouncing Ball: Persecution and the Shifting Burden of Proof

On July 24, the U.S. Court of Appeals for the Third Circuit reversed the BIA as to what constitutes past persecution. In Blanco v. Att’y Gen., the asylum-seeker had been abducted by police in his native Honduras because he had participated in marches in support of the LIBRE party. Police officers there detained him for 12 hrs in an abandoned house, where he was subjected to multiple beatings lasting 40 to 60 minutes each. The police also threatened to kill him and his family if he continued to participate in LIBRE party marches, and further insulted him with racial slurs. Learning that other LIBRE supporters had been killed by the police, the petitioner moved from city to city within Honduras over the next 14 months. However, he received three letters and one phone call during that time threatening that he and his family would be killed if he did not leave the country.

The immigration judge believed the petitioner, but nevertheless denied asylum, finding the harm to have not been severe enough to constitute past persecution. The B.I.A. agreed, saying that the treatment was “more akin to harassment” than persecution. The B.I.A. also found that the petitioner had not even established a well-founded fear of future persecution, concluding that there wasn’t a ten percent chance that a mere supporter who had last participated in a demonstration almost 2 years earlier would be persecuted.

The 3d Circuit reversed. It first quoted the oft-cited phrase that “persecution does not encompass all forms of unfair, unjust, or even unlawful treatment.” But the court continued that it has found persecution to include “threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.” Of course, the facts described above include multiple threats to life, as well as confinement and torture. So then how did the Board find what was obviously persecution several times over to be “more akin to harassment?”

As the Third Circuit explained, the BIA and the immigration judge committed three errors. The first was in finding that the past harm was not severe enough. But the court noted that persecution does not require severe injury; in fact, it requires no physical injury at all, as evidenced by the fact that a death threat alone may constitute past persecution. Thus, the court corrected the Board in holding that “physical harm is not dispositive in establishing past persecution.”

The court next corrected the Board’s discrediting of the threats on the ground that it was not “imminent,” citing the fact that the threat was not carried out in the 14 months until the petitioner’s departure. The court observed that in order to constitute persecution, a threat must be concrete and menacing, but explained that neither term relates to its immediacy. Rather, concrete and menacing go to the likelihood of the threatened harm, and excludes threats that are merely “abstract or ideal.” The court rejected the idea that an asylum-seeker must wait “to see if his would-be executioners would go through with their threats” before qualifying for protection, which “would upend the fundamental humanitarian concerns of asylum law.”

The last error pointed to by the court was the Board’s failure to weigh the various harms cumulatively. The court distinguished between the Board’s claim to have considered the harm cumulatively, and its actual analysis, which considered the individual instances of harm in isolation.

The court observed that, having shown past persecution, there was a presumption that the petitioner possessed a well-founded fear of persecution, which is what one must prove to merit asylum. But as both the IJ and the Board erred in their conclusion regarding past persecution, no determination regarding whether ICE had rebutted the regulatory presumption was ever reached.

* * *

Although Blanco did not reach the question of what happens following a showing of past persecution, I would like to continue the conversation in order to discuss this point. I don’t believe that the shifting burden of proof that arises upon a showing of past persecution is properly taught by EOIR in its training. For that reason, years ago, when I was still with EOIR, I conducted a training in which I tried to clarify the concept by using a tennis analogy. I will attempt to recreate the lesson here.

Imagine the asylum applicant as serving in a tennis match. In tennis, only the serve must go into one specific box on the court, as opposed to anywhere on the opponent’s side of the net. Here, I have marked that service box “past persecution,” as it is only by “serving” into that specific box that the asylum-seeker can create a presumption of well-founded fear, and thus shift the burden of proof to the government.

In the above illustration, the respondent has served into the “past persecution” box by establishing facts that constitute past persecution. This doesn’t require a showing of severe or extreme persecution; any harm rising to the level of what has been found to constitute persecution will suffice. Examples includes multiple instances of lesser harm that cumulatively rise to the level of persecution (see, e.g. Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998); a concrete and menacing threat (not accompanied by actual physical harm); or persecution in the guise of criminal prosecution or conscription.

Once the respondent establishes past persecution, the ball is then in the DHS’s “court.” The only way DHS can “return the serve” to the respondent’s side of the net (i.e. shift the burden of proof back to the asylum applicant) is to demonstrate either (1) changed circumstances such that the respondent no longer has a well-founded fear of persecution on account of a protected ground; or (2) that the respondent could reasonably safely relocate to another part of the home country. If DHS can’t prove either of the above, the respondent has “won the point” of establishing persecution.

Only if DHS succeeds in establishing one of those two points is the ball returned to the respondent. But just as in tennis, after the serve is returned, the respondent is no longer limited to hitting into the service box only. The respondent now has a wider court in which to win the point:

Just as there are three boxes on each side of a tennis court (i.e. the two service boxes and the backcourt), the respondent now has three options for meeting the burden of proof.

The two service boxes (closest to the net) represent the two ways in which one who has suffered past persecution can still merit a grant of “humanitarian asylum” even where there is no longer a basis to fear future persecution.

The first of these is where a humanitarian grant is merited based on the severity of the past persecution. This is the only time that the severity of the past persecution matters. (I believe that errors such as those committed in Blanco arise because the immigration judge remembers learning something about the severity of the past persecution, but isn’t quite clear on the context in which it arises.)

This rule is a codification of the BIA’s holding in a 1989 precedent decision, Matter of Chen. In a concurring opinion in that decision, former Board Member Michael Heilman pointed out that our asylum laws are designed to conform to our international law obligations. He continued that the source of those obligations, the 1951 Convention, came into effect years after the majority of those refugees it was meant to protect, i.e. those who had suffered past persecution during WW II, were clearly no longer at risk from the same persecutors following the defeat of the Axis powers

From this history, Heilman concluded that “the historical underpinnings of the Convention, from which the Refugee Act of 1980 receives its genesis, would have to be totally ignored if one were inclined to adopt the position that present likelihood of persecution is also required where past persecution has been established.”

The majority of the Board adopted this position only where it deemed the past persecution sufficiently severe, and it was that view that the regulations codified in 1990.

Years later, a second basis for humanitarian asylum was added to the regulations for those who suffered past persecution but had their presumption of well-founded fear rebutted by the government. This second category (represented by the second service box in the third illustration) applies to those who might reasonably suffer “other serious harm” in their country of origin. This rule (which became effective in January 2001) looks to whether the asylum applicant might suffer harm as severe as persecution, but unrelated to any specific ground or motive. Thus, an asylum-seeker who suffered past persecution but whose original basis for asylum has dissipated due to changed conditions may merit a humanitarian grant where their return might give rise to mental anguish, put their health at risk due to the unavailability of necessary medical treatment or medication, or subject them to abject poverty or severe criminal extortion, to provide a few examples.

Lastly, an asylum applicant who no longer has a well-founded fear due to changed conditions in their country of origin may still “win the point” by establishing a different well-founded fear of persecution under the new conditions.

Copyright 2020 Jeffrey S. Chase. All rights reserved. Reprinted With Permission.

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You’ll have to go to the original at the above link to see all of Jeffrey’s great “tennis court illustrations!”

Reminded me of my own, less than illustrious, career on the tennis court. Here’s the anecdote I shared with Jeffrey:

I loved it, Jeffrey, even though in my life many of my shots and serves “went over the fence.” Indeed, I once ended an inter-fraternity tennis match with a forfeit after hitting all of my opponent’s tennis balls into the Fox River which at that time bordered the LU Tennis Courts in Appleton. It was kind of like a “mercy killing” since I was being totally creamed anyway, and it was a hot day. I found Immigration Court a much more comfortable fit for my skill set.

I also appreciate Jeff’s citation of Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998). I was on that panel, along with my colleagues Judge Lory Rosenberg and Judge Jerry Hurwitz, who wrote the opinion. The record will show that it was one of the few published BIA precedents where the three of us, members of the “Notorious Panel IV,” agreed. Perhaps that’s why it got published. Our colleagues probably figured that any time the three of us were in harmony, it must be an auspicious occasion worth preserving for the future!

In any event, of all of the more than 100 published decisions in which I participated during my tenure on the BIA, O-Z- & I-Z- on the issue of “cumulative harm” proved to be one of the most useful during my tenure at the Arlington Immigration Court. Attorneys on both sides, knowing my tendencies, liked to frame their arguments in many cases in terms of “it is” or “it isn’t” O-Z- & I-Z-.

I think that “cumulative harm” is one of the most important, and these days most overlooked or wrongly ignored, concepts in modern asylum law. It was really one of the keys to favorable resolution of many asylum cases based on “past persecution.” But, that goes back to a time when the law was applied to protect worthy asylum seekers, rather than to reject them, often on specious grounds as happens on today’s “deportation railroad.”

PWS

08-14-20

🛡⚔️⚖️ROUND TABLE RIPS REGIME’S FRAUDULENT PROPOSED REGS ELIMINATING ASYLUM IN 36-PAGE COMMENTARY — “The proposed rules are impermissibly arbitrary and capricious. They attempt to overcome, as opposed to interpret, the clear meaning of our asylum statutes.”

Knightess of the Round Table

Asylum Ban Reg Comments_July 2020_FINAL

INTRODUCTION

In their introduction, the proposed regulations misstate the Congressional intent behind our asylum laws.2 Since 1980, our nation’s asylum laws are neither an expression of foreign policy nor an assertion of the right to protect resources or citizens. It is for this reason that the notice of proposed rulemaking must cite a case from 1972 that did not address asylum at all in order to find support for its claim.

The intent of Congress in enacting the 1980 Refugee Act was to bring our country’s asylum laws into accordance with our international treaty obligations, specifically by eliminating the above- stated biases from such determinations. For the past 40 years, our laws require us to grant asylum to all who qualify regardless of foreign policy or other concerns. Furthermore, the international treaties were intentionally left broad enough in their language to allow adjudicators flexibility to provide protection in response to whatever types of harm creative persecutors might de- vise. In choosing to adopt the precise language of those treaties, Congress adopted the same flexibility. See e.g. Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804), pursuant to which national statutes should be interpreted in such a way as to not conflict with international laws.

The proposed rules are impermissibly arbitrary and capricious. They attempt to overcome, as opposed to interpret, the clear meaning of our asylum statutes. Rather than interpret the views of Congress, the proposed rules seek to replace them in furtherance of the strongly anti-immigrant views of the administration they serve.3 And that they seek to do so in an election year, for political gain, is clear.

In attempting to stifle clear Congressional intent in service of its own political motives, the ad- ministration has proposed rules that are ultra vires to the statute.

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

Read our full comment at the above link.

Special thanks to the following Round Table Team that took the lead in drafting this comment (listed alphabetically):

Judge Jeffrey Chase

Judge Bruce Einhorn

Judge Rebecca Jamil

Judge Carol King

Judge Lory Diana Rosenberg

Judge Ilyce Shugall

Due Process Forever! Crimes Against Humanity, Never!

PWS

07-14-20

ROUND TABLE NEWS: Getting The Due Process Message Across — 9th Cir. Orders Regime To Respond To Round Table’s Amicus Briefs in Matter of A-B- Challenges!

Lory Rosenberg — Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Round Table stalwarts Judge Jeffrey S. Chase and Judge Lory Diana Rosenberg report:

Notice of Docket Activity

The following transaction was entered on 03/03/2020 at 3:25:28 PM PST and filed on 03/03/2020

Case Name: Sontos Diaz-Reynoso v. William Barr

Case Number: 18-72833

Document(s): Document(s)

Docket Text:

Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)

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Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!

Knjightess — Knightess of the Round Table

PWS

03-08-20

HON. JEFFREY S. CHASE: The Message From Barr’s Improper Intervention in Matter of R-A-F-: Forget The Law, You Are My Stooges! — Only An Independent Article I Immigration Court Will End This Mockery of Due Process & Fundamental Fairness!

https://www.jeffreyschase.com/blog/2020/3/1/the-real-message-of-matter-of-r-a-f-

The Real Message of Matter of R-A-F-

On February 26, the Attorney General (or more likely, someone authorized to speak on his behalf) issued a precedent decision in Matter of R-A-F-. My take on the import of this decision seems to be different than most. Let me first provide some background.

Most people seeking asylum in this country also apply for a lesser form of protection called withholding of removal under Article III of the U.N. Convention Against Torture (“CAT” for short). Whereas asylum provides a path to U.S. permanent residence, CAT only prevents someone with a deportation order from being sent to a country in which they are likely to suffer torture. CAT generally only comes into play where the applicant isn’t found eligible for asylum, something which is happening more frequently as the present administration churns out new bars and obstacles to eligibility.

To provide an example, someone who establishes they will likely be murdered or raped if returned to their country may be barred from even applying for asylum if they didn’t file their application within one year of their arrival in this country, or if they did not apply for asylum in a third country they passed through en route to the southern border. Even if allowed to apply, they may still be denied asylum if the immigration judge does not determine that their persecution would be for the proper motive. But while our asylum laws as written allow some leeway as to whom the government will afford permanent status in the U.S., the same government is bound by international treaty not to send an individual to a place where they would suffer persecution. It is often CAT that fills the gap between those who are not permitted to remain permanently but should nevertheless not be repatriated.

The U.S. was one of 154 countries to sign the U.N. Convention Against Torture. However, it was the only country to add a “specific intent” requirement to its internal regulations implementing the convention, requiring a finding that the torture “be specifically intended to inflict severe…pain and suffering,” and specifically excluding acts that result “in unanticipated or unintended severity of pain or suffering.”1 The specific intent requirement seriously undermines the purpose of the law, as many are forced to rely on CAT specifically because they couldn’t prove the proper intent of their persecutor that is required for asylum. It is thus necessary for the specific intent provision to be interpreted in the least restrictive manner for CAT to function in its intended way.

In 2002, the BIA had its first chance to interpret how the specific intent requirement should be applied in a case called Matter of J-E-. At the time, the BIA was comprised of judges holding diverse views of the law. As a result, the Board was sharply split on the issue. The more restrictive reading won out, but 6 judges dissented.2 Five of them were no longer on the BIA a year later following then Attorney General John Ashcroft’s infamous purge of Board judges whom he viewed as too liberal.

An important point that was glossed over in the majority opinion in Matter of J-E- and its progeny is that where governments do intentionally maintain horrific conditions in its prisons or mental institutions that are intended to punish those institution’s populations, they tend to be smart enough not to admit to it. To illustrate this point, I refer to a November 12, 2019 report of the Washington Post finding that although the Trump Administration characterized its outrageous treatment of unaccompanied immigrant children as an unintended consequence of the volume of immigrants seeking asylum at the border, such outcome “also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions.”

Cognisant of this fact, in his dissenting opinion in Matter of J-E-, Hon. Paul W. Schmidt found the specific intent requirement to be satisfied by a “clearly documented acceptance of extreme mistreatment amounting to torture as a routine aspect of detention in Haiti.” Concluding that the Haitian government “cannot claim it does not know what happens to detainees in its prisons,” Judge Schmidt found the specific intent requirement to have been met. Hon. Lory D. Rosenberg began her companion dissenting opinion in the case by quoting from the Second Circuit that “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture.”3

In late 2018, the BIA again rejected such arguments and reiterated the majority view of J-E- in another precedent decision, Matter of J-G-R-P-. This time, the BIA did so in a three-judge panel decision in which there were no dissents. As this decision was published less than 16 months prior to the A.G.’s decision in R-A-F-, there was really no need at the time the A.G. issued R-A-F- for another decision on the topic.

I thus believe the real motive behind issuing the decision was not to give guidance, but rather to serve warning. While published precedential decisions have always received broad attention, individual BIA appellate judges have felt safe affording relief in sympathetic cases in unpublished decisions where the outcome is generally known only to the parties involved.

A colleague recently made me aware of a job posting within EOIR for an attorney to work not for the Immigration Courts or the BIA, but rather within the office of EOIR’s director, James McHenry, who has imposed the administration’s political will on the agency’s judges with a heavy hand. The job description included “review(ing) court cases including appeals cases for adherence to procedural requirements, proper interpretation and application of statutes, regulations and precedents,” and “recommend(ing) action on precedent-setting issues to senior officials.” In other words, McHenry was looking to hire what is commonly referred to as a “snitch” to sort through decisions that might not pass muster with the likes of Stephen Miller, and flag them for corrective action. One such shameless staffer apparently flagged R-A-F- in this manner, and through the resulting A.G. certification, the case will serve as a cautionary tale for a group of BIA judges that certainly hasn’t forgotten the fate of the Matter of J-E- dissenters.

The decision in question was issued in September by Appellate Immigration Judge Linda Wendtland, whose retirement party was held this past week. Judge Wendtland is by no means a liberal, and worked the majority of her career for the Department of Justice; prior to her appointment to the BIA, she had been an assistant director with the DOJ’s Office of Immigration Litigation. But Judge Wendtland is highly knowledgeable of the law, and is reasonable and fair (all endangered qualities on the present BIA).

Looking to Judge Wendtland’s decision below, it would be difficult to find a more sympathetic applicant than R-A-F-. The respondent seeking CAT protection is in his 70s, and suffers from Parkinson’s disease, dementia, Major Depressive Disorder, traumatic brain injury, PTSD, and chronic kidney disease. The evidence of record established that if returned to his native Mexico, R-A-F- faced a significant risk of being institutionalized in a facility in which he could be subject to physical and sexual abuse, physical and chemical restraints, and containment in cages and isolation rooms, all without access to justice. Judge Wendtland agreed with the Immigration Judge that such treatment rose to the definition of torture.

Based on her reputation and body of work, Judge Wendtland is undoubtedly someone who had earned the right to have her decision in R-A-F- accorded deference. However, these are different times. And instead of deference, the A.G. (who, of course, knows next to nothing about immigration law or the specific matter in question) chose to unceremoniously refer to himself and then slam the BIA’s decision. The legacy of such action will be fully felt the next time a single judge at the BIA has the opportunity to affirm a similarly sympathetic grant of relief, but will instead choose not to do so out of fear and self-preservation. This is not how justice should be afforded to our country’s most vulnerable population.

Notes:

8 C.F.R. § 1208.18(a)(5).

I am proud to note that the authors of the two dissenting opinions, Paul W. Schmidt and Lory D. Rosenberg, and former BIA judge Cecelia Espenoza, who joined in both dissents, are presently members of the Round Table of Former Immigration Judges.

Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Reprinted with permission.

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

Thanks, Jeffrey my friend, for the “shout out” for the dissents of Lory, Cecelia, and me in Matter of J-E-!

I recently reached the same conclusion as Jeffrey about R-A-F-, although in less scholarly, measured, and elegant terms: https://immigrationcourtside.com/2020/02/28/barr-to-his-wholly-owned-immigration-judges-just-deny-cat-protection-any-ol-ground-will-do-matter-of-r-a-f-27-in-dec-778-a-g-2020/.

I have said before that I always respected Judge Wendtland. She was a scholarly, industrious, fair-minded, “center right” jurist. While I had been exiled from the BIA before she was appointed, she seemed like a judge with whom I would have enjoyed having a continuing dialogue, much like my more conservative, yet thoughtful and scholarly, friend the late Judge Lauri Steven Filppu. And, we probably would have ended up on the same side of a number of issues coming before the BIA.

It’s both disheartening and enraging to see that even “conscientious conservative” jurists like Judge Wendtland get no real respect and deference from the likes of Billy Barr and his toady colleagues. And, the function of having Director McHenry “ride heard” on the BIA is both unethical and stupid, since he is not an Immigraton Judge himself. Indeed, the gross incompetence with which todays’ EOIR is managed suggests that the Director’s sole role should be to attend to the failing administrative and support structure of the Immigration Courts in a nonpartisan, apolitical manner under the direction of, not overseeing, the BIA Chair and the Chief Immigration Judge.

This system is broken! Every time an Article III Circuit Court signs off on an order of removal resulting from this unconstitutional, unethical, and grossly mismanaged morass, those Article III Judges enable the regime’s continuing fraud, waste, and abuse, and shirk their sworn constitutional duties.

PWS

03-02-20

ROUND TABLE OF FORMER IMMIGRATION JUDGES CONTINUES TO HELP THE NEW DUE PROCESS ARMY SUCCEED: This Time It’s An Amicus Brief In Support Of Respondent’s Successful Cert. Petition In Pereida v. Barr

https://lawprofessors.typepad.com/immigration/2019/12/breaking-news-supreme-court-grants-review-in-criminal-removal-case.html

Dean Kevin R. Johnson reports for ImmigrationProf Blog:

Wednesday, December 18, 2019

BREAKING NEWS: Supreme Court Grants Review in Criminal Removal Case

By Immigration Prof

Share

The Supreme Court has accepted another criminal removal case for review. Today, t he Court granted cert in Pereida v. Barr. The issue in the case is whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act. The complaint in petitioner’s state criminal case alleged that he “use[d] a fraudulent Social Security card to obtain employment.” Petitioner pleaded no contest to the charge. The Board of Immigration Appeals found Pereida ineligible for cancellation for removal and the Eighth Circuit denied the petition for review.

KJ

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Many thanks to the pro bono team at Orrick for “helping us to help others.”

I’m proud to be a member of the Round Table and am deeply grateful for the efforts of Judges Jeffrey Chase, Lory Rosenberg, John Gossart, Carol King, and others who got this group organized and “up and running” and who keep track of all the (almost daily) requests for our assistance.

I can’t help wondering what would happen if we had an Administration that worked cooperatively with the available resources to solve problems, honored expertise, promoted justice, resisted evil, and made Due Process for all a reality!

Instead, we have an ugly, cruel group of racist inspired neo-fascists and their tone-deaf supporters actively working against our laws, our Constitution, and the best interests of our country. In other words, a kakistocracy that has institutionalized “malicious incompetence.”

Due Process Forever; “Malicious Incompetence Never!”

PWS

12-19-18

DUE PROCESS: “Roundtable of Former Immigration Judges” Gets AILA Award For Due Process Advocacy!

https://www.aila.org/advo-media/press-releases/2019/aila-presents-the-roundtable-of-former-immigration

AILA Presents the Roundtable of Former Immigration Judges with the 2019 Advocacy Award

AILA Doc. No. 19062032 | Dated June 19, 2019

CONTACTS:

George Tzamaras

202-507-7649

gtzamaras@aila.org
Belle Woods

202-507-7675

bwoods@aila.org

WASHINGTON, DC – The American Immigration Lawyers Association (AILA) will recognize the Roundtable of Former Immigration Judges, with the 2019 Advocacy Award for outstanding efforts in support of AILA’s advocacy agenda. The roundtable will accept the award this week during AILA’s Annual Conference in Orlando, FL.

The Round Table of Former Immigration Judges was formed in June 2017 when seven former Immigration Judges and BIA Members united for an amicus brief in Matter of Negusie. In the two years since, the group has grown to more than 30 members, dedicated to the principle of due process for all. Its members have served as amici in 14 cases before six different circuit courts, the Attorney General, and the BIA. The group has made its voice heard repeatedly in support of the rights of victims of domestic violence to asylum protection, and has also lent its arguments to the issue of children’s need for counsel in removal proceedings, the impact of remote detention in limiting access to counsel, and the case against indefinite detention of immigrants. The Round Table of Former Immigration Judges has submitted written testimony to Congress and has released numerous press statements. Its individual members regularly participate in teaching, training, and press events.

Cite as AILA Doc. No. 19062032.

And here are Judge Chase’s “acceptance remarks” in behalf of our entire group:

Thank you; we are humbled and honored to receive this award. Due to the time constraints on our speeches, I don’t have time to either name all of the members of our group, or to thank all those to whom thanks is due. So I will do that in a blog post.

In terms of advocacy, we are all advocates – everyone in this room, all AILA members. The past experience of our group as former judges gives us more of a platform. But it is a special group, in that so many have chosen to spend their post-government careers or their retirement actively fighting to make a difference in these trying times.

In fighting to make that difference, we must all speak for those who have no voice, and must serve as the conscience in a time of amoral government actions. Those whom we advocate for had the courage and strength to not only escape tragedy and make their way to this country, but once here, to continue to fight for their legal rights against a government that makes no secret of its disdain for their existence. We owe it to them to use our knowledge and skills to aid them in this fight.

In conclusion, I will quote the response of one of our group members who isn’t here tonight upon learning of this award: “It’s nice to be recognized. Now let’s get back to work.”

Thank you all again.

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Congrats to all of my 30+ wonderful colleagues in “The Roundtable.” It’s an honor to be part of this group. Also, many, many thanks to all of the firms and individual lawyers who have provided hundreds of hours of pro bono assistance to us so that we could have a “voice.” It’s been a real team effort!

PWS

06-21-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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

PWS

05-20-19

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them; illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies.That’s what the “New Due Process Army” is all about.

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the “best ever.” I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University. In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, what’s the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

GOOD NEWS: En Banc 9th Cir. Will Rehear C.J.L.G. v. Sessions On Children’s Right To Counsel in Removal – Oral Argument Set For Dec. 10, 2018 — “Our Gang’s” Amicus Brief Appears To Have Helped!

Lee Brand, Partner at Simpson Thacher & Bartlett LLP in Palo Alto, CA and his amazing group of brief write gave us the good news this afternoon and sent along these orders granting the rehearing en banc and setting OA:

CJLGOrder 2 CJLGOrder

Many thanks to Lee and his dedicated group of superstar members of the “New Due Process Army” without whom this effort would not have been possible.

Here’s a copy of the Amicus Brief from “Our Gang of Retired Judges:”

2018.03.15 CJLG Amicus Brief of IJs

This is one of many important Federal Court and BIA cases in which “Our Gang” under the leadership of Judge Jeffrey Chase and Judge Lory Rosenberg have filed amicus briefs informing the courts of the realities of Immigration Court practice and the current sad state of Due Process in the courts. We’re working on some additional “assignments.” We’ll keep fighting for fairness, Due Process, and judicial independence as long as we’re “alive and kicking.”

Here’s a brief report form Jeffrey:

I am sending this to our now much larger full group. One of the early amicus briefs in which 11 members of our gang participated was filed in support of a motion for rehearing en banc before the 9th Cir. in CJLG v. Sessions. In that case, an IJ went forward with the asylum hearing of a 15 year old respondent who was unable to retain counsel, telling his mother that she would represent him. Not surprisingly, asylum was denied based on the respondent’s inability to state a cognizable social group and to establish the government was unable/unwilling to control. The ACLU filed a petition for review in the 9th Cir. arguing that minors should be assigned counsel in removal proceedings, which was dismissed by a 3 judge panel.

Today, the 9th Cir. granted the motion for rehearing en banc; oral arguments are set for Dec. 10.

So far, of the cases in which our gang submitted amicus briefs, there have been successful outcomes in Negusie (before the BIA), and in Matumona v. Sessions in the 10th Cir., in which OIL stipulated to remand for the BIA to consider the arguments raised on appeal (which concerned the impact of remote detention centers on the respondent’s ability to retain counsel).

It’s an honor to be a member of “Our Gang” and to have the opportunity to work with the many outstanding pro bono counsel and firms throughout the country who are part of the “New Due Process Army.” The efforts of these wonderful lawyers represent the real commitment to the “rule of law” in immigration and stand in sharp contrast with the jaundiced views and insults to the legal profession publicly proclaimed by Jeff Sessions.

If you are a retired Immigration Judge or BIA Appellate Immigration Judge and would like to join our collegial group effort, please contact Jeffrey, Lory, or me. It’s a rewarding experience and a great opportunity to use your expertise to “make a difference.” It’s also a great chance to keep in touch with your judicial colleagues. It’s not all work (that’s where our wonderful pro bono lawyers come in) — we also have some fun, good times, and fond recollections in the process. (Judge Gus “Hang 10” Villageliu has promised free (non-web) surfing lessons to all new members once hurricane season is past!)

Due Process Forever!

PWS

09-20-18

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

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

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

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

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

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

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

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

PWS

08-23-18

HON. LORY DIANA ROSENBERG — “MOTHER & CHILD REUNION” — A Satirical Update Of An “Oldie But Goodie”

Family Reunion and Detention Lyrics, to Mother and Child Reunion, Paul Simon,
Lory Rosenberg (originally parodied in 2015, re 2014 “surge”), revised in 2018.

No, I would not give you false hope

On this strange and mournful day

But a parent-child reunion,
Just might be a long time away.

Oh, desperate client of mine,
Your babies ripped from your arms
And taken by ICE from you,
Without any thought of harm.
Cause racism works this way,
In the course of enforcement,
Over and over again,

No, I would not give you false hope
As the days keep passing by,
Because some of these parents and children,
May never reunify.

Oh, parents who fled their homes,
In fear that their kids would die,
And begged for protection here,
But found it to be a lie.
Cause racism works that way
Under the Trump regime
Over and over again.

Oh, desperate client of mine

They’ve taken your liberty

Imprisoned your child with you

By claiming you’d surely flee

But deterrence breaks the law, and

Jail is no good for kids,

Under the Flores case

No I would not give you false hope

On this strange and mournful day

So the end of

family detention
Is surely a long time away.Oh, desperate client of mine
Though you left your home in fear

The mistreatment that you’ve fled
Has only continued here

.

The cold and indignity,
The meals that your child can’t eat,
The memories you must erase

No I would not give you false hope

On this strange and mournful day

But release from family detention Is likely a lawsuit away
Yes, release from family detention Is likely a lawsuit away.

~END~

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

Thanks, Lory!

PWS

07-28-18

THE HILL: Nolan Says Sessions Got It Right In Matter of A-B- — Not Me!

http://thehill.com/opinion/immigration/392409-sessions-domestic-abuse-decision-didnt-change-asylum-law-just-applied-it

Family Pictures

Nolan writes:

. . . .

This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.

The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.

And second, that she has not established that her husband abused her because he perceived her to be a member of this group.

Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.

The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.

In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.

Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.

Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.

Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.

He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:

Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;

That membership in that group is a central reason for the alleged persecution; and

That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.

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

Read Nolan’s complete article over at The Hill at the above link.

I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.

I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.

PWS

06-17-18

“GANG” OF RETIRED US IMMIGRATION JUDGES IMMEDIATELY CONDEMNS LATEST OUTRAGEOUS ATTACK ON ASYLUM LAW, DUE PROCESS, & HUMAN RIGHTS BY SESSIONS IN MATTER OF A-B-!

http://www.aila.org/infonet/retired-ijs-and-former-members-of-the-bia-issue

Retired Immigration Judges and Former Members of the Board of Immigration Appeals Statement in Response to Attorney General’s Decision in Matter of A-B-.

As former Immigration Judges with decades of experience at the trial and appellate level, we consider the Attorney General’s decision an affront to the rule of law. As former judges, we understand that in order to be fair, case law must develop through a process of impartial judicial analysis applying statute, regulations, case law, and other proper sources to the facts of the case.

The life-or-death consequences facing asylum applicants makes it extremely important to keep such analysis immune from the political considerations that appointed cabinet members are subject to.

The BIA’s acknowledgment that a victim of domestic violence may qualify for asylum as a member of a
particular social group was the culmination of a 15 year process through the immigration courts and BIA. The issue was certified by three different Attorneys General (one Democrat and two Republican), who all chose in the end to leave the final determination to the immigration judges and the BIA. The private bar, law enforcement agencies (including DHS), the BIA, and the circuit courts all agreed with this final determination.

What is more, a person who suffers persecution that is perpetrated by private parties whom their government cannot or will not control, is equally eligible for asylum protection under both US law and international refugee treaties.

For reasons understood only by himself, the Attorney General today erased an important legal development
that was universally agreed to be correct. Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them. We hope that appellate courts or Congress through legislation will reverse this unilateral action and return the rule of law to asylum adjudications.

Sincerely,

Honorable Steven R. Abrams

Honorable Sarah M. Burr

Honorable Jeffrey S. Chase

Honorable Bruce J. Einhorn

Honorable Cecelia Espenoza

Honorable Noel Ferris

Honorable John F. Gossart, Jr.

Honorable William P. Joyce

Honorable Carol King

Honorable Elizabeth A. Lamb

Honorable Margaret McManus

Honorable Susan Roy

Honorable Lory D. Rosenberg

Honorable Paul W. Schmidt

Honorable Polly A. Webber

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AILA Doc. No. 18061134. (Posted 6/11/18)

List of Retired Immigration Judges and Former BIA Members
The Honorable Steven R. Abrams served as an Immigration Judge in New York City from 1997 to 2013 at JFK Airport, Varick Street, and 26 Federal Plaza. From 1979 to 1997, he worked for the former Immigration and Naturalization Service in various capacities, including a general attorney; district counsel; a Special U.S. Attorney in the Eastern District of New York and Alaska. Presently lectures on Immigration law in Raleigh, NC.
The Honorable Sarah M. Burr served as a U.S. Immigration Judge in New York from 1994 and was appointed as Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills and Varick Street immigration courts in 2006. She served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus and also as the supervising attorney in its immigration unit. She currently serves on the Board of Directors of the Immigrant Justice Corps.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a sole practitioner and volunteer staff attorney at Human Rights First. He also was the recipient of the American Immigration Lawyers Association’s annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable Bruce J. Einhorn served as a United States Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law in Malibu, California, and a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford, England. He is also a contributing op-ed columnist at D.C.-based The Hill newspaper. He is a member of the Bars of Washington D.C., New York, Pennsylvania, and the Supreme Court of the United States.
The Honorable Cecelia M. Espenoza served as a Member of the Executive Office for Immigration Review (“EOIR”) Board of Immigration Appeals from 2000-2003 and in the Office of the General Counsel from 2003- 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer and Senior FOIA Counsel. She is presently in private practice as an independent consultant on immigration law, and a member of the World Bank’s Access to Information Appeals Board. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997-2000) and the University of Denver College of Law (1990-1997) where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on Immigration Law. She is a graduate of the University of Utah and the University of Utah S.J. Quinney College of Law. She was recognized as the University of Utah Law School’s Alumna of the Year in 2014 and received the Outstanding Service Award from the Colorado Chapter of the American Immigration Lawyers Association in 1997 and the Distinguished Lawyer in Public Service Award from the Utah State Bar in 1989-1990.
The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and an attorney advisor to the Board from 2013 to 2016, until her retirement. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.
The Honorable John F. Gossart, Jr. served as a U.S. Immigration Judge from 1982 until his retirement in 2013 and is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in
2
AILA Doc. No. 18061134. (Posted 6/11/18)

immigration court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor of law at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor of law at the University of Maryland School of Law also teaching immigration law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland and the former Maryland Institute for the Continuing Education of Lawyers. He is also a past board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. Subsequent to retiring from the bench, he has been the Managing Partner of Joyce and Associates with 1,500 active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary Board member for six months between 2010 and 2011. She previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues. The Honorable Elizabeth A. Lamb
Judge Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench after twenty-seven years in January 2018. She received a Bachelor of Arts degree from the Catholic University of America in 1973, and a Juris Doctorate from Brooklyn Law School in 1983. Judge McManus was an attorney for Marion Ginsberg, Esquire from 1989 to 1990 in New York. She was in private practice in 1987 and 1990, also in New York. Judge McManus worked as a consultant to various nonprofit organizations on immigration matters including Catholic Charities and Volunteers of Legal Services from 1987 to 1988 in New York. She was an adjunct clinical law professor for City University of New York Law School from 1988 to 1989. Judge McManus served as a staff attorney for the Legal Aid Society, Immigration Unit, in New York, from 1983 to 1987. She is a member of the New York Bar.
The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to 2004. She is the founder of IDEAS Consulting and Coaching, LLC., a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. Sue has been in private practice for nearly 5 years, and two years ago, opened her own immigration law firm. Sue is the NJ AILA Chapter Liaison to EOIR, is the Vice Chair of
was appointed as an Immigration Judge in September 1995. She received
a Bachelor of Arts degree from the College of Mt. St. Vincent in 1968, and a Juris Doctorate in 1975 from St.
John’s University. From 1983 to 1995, she was in private practice in New York. Judge Lamb also served as an
adjunct professor at Manhattan Community College from 1990 to 1992. From 1987 to 1995, Judge Lamb
served as an attorney for the Archdiocese of New York as an immigration consultant. From 1980 to 1983, she
worked as senior equal employment attorney for the St. Regis Paper Company in West Mark, New York. From
1978 to 1980, Judge Lamb served as a lawyer for the New York State Division of Criminal Justice Services in
New York. She is a member of the New York Bar.
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AILA Doc. No. 18061134. (Posted 6/11/18)

the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Pro Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, virginia. He previously served as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995) extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1986-87 and 1979-81. He was the managing partner of the Washington, D.C. office of Fragomen, Del Rey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He served as an adjunct professor of law at George Mason University School of Law in 1989, and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects; and speaks, writes and lectures at various forums throughout the country on immigration law topics. He also created the immigration law blog immigrationcourtside.com.
The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando Immigration Courts. Previously, she practiced immigration law from 1980 to 1995 in her own private practice in San Jose, California, initially in partnership with the Honorable Member of Congress, Zoe Lofgren. She served as National President of AILA from 1989 to 1990 and was a national officer in AILA from 1985 to 1991. She has also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in this field, and is a graduate of Hastings College of the Law (University of California), J.D., and the University of California, Berkeley, A.B., Abstract Mathematics.
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AILA Doc. No. 18061134. (Posted 6/11/18)

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

The AP already picked up our statement in this article:

https://townhall.com/news/us/2018/06/12/sessions-excludes-domestic-gang-violence-from-asylum-claims-n2489683

U.S. Sen. Dianne Feinstein, a California Democrat, said the decision was “despicable and should be immediately reversed.” And 15 former immigration judges and Board of Immigration Appeals members signed a letter calling Sessions’ decision “an affront to the rule of law.”

“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”

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

Also, I was quoted in this article by Alan Pyke posted yesterday in ThinkProgress:

https://thinkprogress.org/jeff-sessions-asylum-domestic-violence-5e1a3e1aa996/

Marching orders, not friendly advice

The attorney general also took care to remind the judges that his decisions aren’t advice from a fellow lawyer but binding instructions from their one true boss. Though they are termed “judges” and wear robes behind a bench in court, the immigration judiciary is essentially a staff arm of the Attorney General rather than the independent arbiters that most envision when hearing their job titles.

Sessions’ frank expression of expectations was jarring to retired immigration judge Paul Schmidt. When attorneys general addressed the training conference in the past, Schmidt said, they stuck to the kind of collegial rah-rah stuff common to executives addressing underappreciated staff — but also stressed an expectation of careful, diligent, and independent professional conduct.

“I’ve never seen an AG come and basically tell the judges they’re part of the border enforcement effort. It’s outrageous,” Schmidt said. “Whether they’re inside DOJ or not, this is supposed to be an administrative court that exercises independent judgment and decisionmaking. And he’s reduced to to where they’re little enforcement officers running around carrying out the AG’s border policies.”

Sessions did go briefly off-book on Monday to offer one conciliatory note, looking up from his notes after calling the current backlog in immigration courts“unacceptable” to acknowledge that it’s been a tougher problem than he expected. “We thought we could get those numbers down, but they’re not going down yet,” Sessions said, before returning to his prepared remarks. He did not acknowledge that his own policies have contributed to the swelling of the backlog, which hit an all-time high in May.

Immigration court backlog hits all-time high, days before Sessions speech to immigration judges

Sessions is redrawing lines more tightly atop an already perversely narrow system.

A separate ruling last Friday helps underline the severity of the limits on traumatized migrants’ rights to seek protection in the United States. In a decision pertaining to the immigration courts’ handling of those accused of providing “material support” to terrorist organizations abroad, the Board of Immigration Appeals decided even labor compelled with death threats counts as grounds to bar someone from the United States.

The Salvadoran woman whose appeals gave rise to the case had been married to a sergeant in El Salvador’s army during a bloody civil war there. Guerrillas kidnapped the woman and her husband, made her watch as he dug his own grave and was shot dead, then made her wash clothes and do other menial chores for the rebel fighters while in captivity.

This clothes-washing and death-avoiding makes her, in the DOJ’s immigration overseers’ eyes, a terrorist no better than the unnamed group — presumably the Marxist-Leninist revolutionary Farabundo Martí National Liberation Front (FMNL) — who killed her husband in front of her and forced her into servitude.

The board denied her appeals and used the case to set a broader line across all immigration courts. Violently coerced labor while imprisoned by a terror organization will permanently bar you from crossing the U.S. border to seek protection. If you try it, we’ll send you back to your captors — presumably after first taking your kids away from you, pursuant to Sessions’ new policy mandating all immigrants crossing the border without documentation be referred to criminal court and thus separated from any minors who accompanied them.

This piece has been updated with additional context about Sessions’ immigration policies and further perspective from immigration policy experts.

Read Alan’s full analysis at the above link. According to many observers, the “small aside” by Sessions in the article is the closest he’s ever come to accepting responsibility for a mess that he, the Trump Administration, and the two previous Administrations actually have caused with their horrible and highly politicized mismanagement of the U.S Immigration Courts.

For the most part, the ever disingenuous Sessions, has tried to shift blame for his gross mismanagement to the victims: migrants (particularly asylum seekers); private attorneys (particularly those heroic attorneys performing pro bono); and the beleaguered, totally demoralized U.S. Immigration Judges themselves who have been stripped of dignity, wrongfully accused of laziness, and placed under inane, sophomoric, “performance standards” — incredibly developed by Sessions and other politicos and “Ivory tower” bureaucrats who have never themselves been Immigration Judges, have no idea what is happening in Immigration Court, and are driven entirely by political bias and/or a desire to keep their comfy jobs on the 5th floor of the DOJ or in the Falls Church Tower — well away from the results of the havoc they are wreaking on local Immigration Courts every day!

What a way to “manage” one of the nation’s largest and most important court systems! The real blame here goes to Congress which created this awful mess, yet has done nothing to remove this joke of a system from the toxic incompetence of the DOJ and create an independent court system where fairness, Due Process, quality, respect, and efficient, unbiased decision-making will be the hallmarks!

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

UPDATE:

The fabulous Dan Kowalski @ LexisNexis also reminds me that our statement was the “banner, above the fold” headline on today’s bibdailyonline!

Here’s the link which also includes tons of other “great stuff” that Dan publishes!

http://www.bibdaily.com/

PWS

06-12-18

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

Cantarero – Amicus Brief

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

HERE’S THE TITLE PAGE AND TOC:

No. 18-60115

In the United States Court of Appeals for the Fifth Circuit

WENDY YESSENIA CANTARERO LAGOS & HENRY OMAR BONILLACANTARERO,

Petitioners,

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

Respondent.

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

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

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

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

Counsel for Amici Curiae

May 23, 2018

TABLE OF CONTENTS

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

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

Because particular social group jurisprudence is unduly
complex and applicants face various access-to-justice
barriers, Immigration Judges and Board Members will
frequently clarify an applicant’s proposed particular social
group ……………………………………………………………………………………. 9

The decision below disregards prior precedent in which Immigration Judges and Board Members have clarified an applicant’s proposed particular social group or allowed an applicant to present a revised particular social group on
appeal ………………………………………………………………………………… 21

This Court should vacate the decision below because its ambiguous holding will encourage Immigration Judges to be intolerant of applicants’ efforts to revise their PSGs and will enable the Board to issue boilerplate decisions denying relief ….. 28

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

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT

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

3

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

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

4

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

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

HERE’S THE “CAST OF CHARACTERS:”

APPENDIX BIOGRAPHIES OF AMICI CURIAE

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

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

App. 1

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

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

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

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

App. 2

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

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

App. 3

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

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

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

App. 4

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

App. 5

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

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

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

App. 6

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

App. 7

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

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

App. 8

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

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

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

Due Process Forever!

PWS

05-25-18

WITH HELP FROM GIBSON DUNN, “GANG OF 16” RETIRED US IMMIGRATION JUDGES FILES AMICUS BRIEF OPPOSING AG’S INTERFERENCE IN MATTER OF A-B-

HERE’S THE BRIEF:

AB-Brief Amici Curiae of Sixteen Former Immigration Judges and Members of t…

HERE’S THE “STATEMENT OF INTEREST:”

Amici Curiae are sixteen former immigration judges and members of the Board of Immigration Appeals (“Board”). Out of respect for the law to which they have dedicated their careers, Amici feel compelled to file this brief in support of Respondent. Amici are deeply concerned about the procedural violations in this case—in particular the Attorney General’s certification of a question that was not properly considered by the Immigration Judge and was not considered at all by the Board. This complete disregard for established procedure is alarming. It plainly violates binding federal regulations governing the narrow circumstances under which Attorney General certification is permitted and it raises serious due process concerns.

Ultimately, it is within Congress’s authority—not the Attorney General’s—to define the boundaries of asylum. And Congress has already determined that a person can qualify for asylum based on persecution that independently might constitute private criminal activity.

Amici urge the Office of the Attorney General not to take any further action on a question that is not properly before it, and therefore urge that the referral order be vacated.

HERE’S THE TOC:

TABLE OF CONTENTS

Page INTRODUCTION ………………………………………………………………………………………………………….. 1 STATEMENT OF INTEREST OF AMICI CURIAE………………………………………………………….. 1 BACKGROUND ……………………………………………………………………………………………………………. 6 ARGUMENT …………………………………………………………………………………………………………………. 8

This case is not properly before the Attorney General ……………………………………. 8

Federal regulations require that the Immigration Judge issue a
decision on asylum before certifying a case to the Board. ……………………. 9

The Attorney General may only review a Board decision, but there
was none………………………………………………………………………………………. 12

Bypassing the Board nullifies critical procedural safeguards…………………………. 13

The Board, a neutral and independent body, with deep knowledge
of its own precedent, should consider the effect of new case law on
that precedent in the first instance. ………………………………………………….. 13

Bypassing the Board raises serious due process concerns…………………… 14

The Attorney General cannot override Congress’s judgment under the
guise of a procedural mechanism……………………………………………………………….. 16

“Persecution” can be carried out or threatened by private actors that the government cannot or will not control………………………………………………………… 19

CONCLUSION…………………………………………………………………………………………………………….. 21

HERE’S THE “GANG OF 16”

 The Honorable Steven Abrams served as an Immigration Judge at the New York, VarickStreet, and Queens Wackenhut Immigration Courts in New York City. Prior to his appointment to the bench, he worked as a Special U.S. Attorney in the Eastern District of New York, and before that as District Counsel, Special Counsel for criminal litigation, and general attorney for the former Immigration and Naturalization Service (“INS”).

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

 The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board from 2007 to 2017. He now works in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. He received the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

 The Honorable George T. Chew served as an Immigration Judge in New York from 1995 to 2017. Previously, he served as a trial attorney at the former INS.

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 The Honorable Bruce J. Einhorn served as an Immigration Judge in Los Angeles from 1990 to 2007. He now serves as an Adjunct Professor of Law at Pepperdine University School of Law, and is a Visiting Professor of International, Immigration, and Refugee Law at the University of Oxford.

 The Honorable Cecelia M. Espenoza served as a Member of the Board from 2000 to 2003 and in the Executive Office for Immigration Review (“EOIR”) Office of the General Counsel from 2003 to 2017 where she served as Senior Associate General Counsel, Privacy Officer, Records Officer, and Senior FOIA Counsel. She now works in private practice as an independent consultant on immigration law. Prior to her EOIR appointments, she was a law professor at St. Mary’s University (1997–2000) and the University of Denver College of Law (1990–97), where she taught Immigration Law and Crimes and supervised students in the Immigration and Criminal Law Clinics. She has published several articles on immigration law. She received the Outstanding Service Award from the Colorado Chapter of AILA in 1997.

 The Honorable Noel Ferris served as an Immigration Judge in New York from 1994 to 2013 and as an attorney advisor to the Board from 2013 until her retirement in 2016. Previously, she served as a Special Assistant U.S. Attorney in the Southern District of New York from 1985 to 1990 and as Chief of the Immigration Unit from 1987 to 1990.

 The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013. He is the former president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. From 1975 to 1982, he served in various positions with the former INS, including as a general attorney, naturalization attorney, trial attorney, and deputy assistant

3

commissioner for naturalization. He is also the co-author of the National Immigration Court Practice Manual, which is used by all practitioners throughout the United States in immigration-court proceedings. From 1997 to 2016, Judge Gossart was an adjunct professor at the University of Baltimore School of Law teaching immigration law, and more recently was an adjunct professor at the University of Maryland School of Law, also teaching immigration law. He is also a past board member of the Immigration Law Section of the Federal Bar Association.

 The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of the Board for six months between 2010 and 2011. She previously worked in private practice for ten years, focusing on immigration law. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King currently works as an advisor on removal proceedings.

 The Honorable Margaret McManus was appointed as an Immigration Judge in 1991 and retired from the bench this January after twenty-seven years. Before her time on the bench, she worked in several roles, including as a consultant to various nonprofit organizations on immigration matters (including Catholic Charities and Volunteers of Legal Services) and as a staff attorney for the Legal Aid Society, Immigration Unit, in New York.

 The Honorable Lory D. Rosenberg served on the Board from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid & Defender Association from 2002 until 2004. Prior to her appointment, she worked with the American Immigration Law Foundation from 1991 to 1995. She was also an adjunct Immigration Professor at American University Washington College of Law from 1997 to

4

2004. She is the founder of IDEAS Consulting and Coaching, LLC, a consulting service for immigration lawyers, and is the author of Immigration Law and Crimes. She currently works as Senior Advisor for the Immigrant Defenders Law Group.

 The Honorable Susan Roy started her legal career as a Staff Attorney at the Board, a position she received through the Attorney General Honors Program. She served as an Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the DHS Office of Chief Counsel in Newark, NJ, and then became an Immigration Judge, also in Newark. She has been in private practice for nearly five years, and two years ago, opened her own immigration law firm. She is the New Jersey AILA Chapter Liaison to EOIR and is the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association.

 The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, VA. He previously served as Chairman of the Board from 1995 to 2001, and as a Board Member from 2001 to 2003. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), extending asylum protection to victims of female genital mutilation. He served as Deputy General Counsel of the former INS from 1978 to 1987, serving as Acting General Counsel from 1979 to 1981 and 1986 to 1987. He was the managing partner of the Washington, DC office of Fragomen, DelRey & Bernsen from 1993 to 1995, and practiced business immigration law with the Washington, DC office of Jones, Day, Reavis and Pogue from 1987 to 1992, where he was a partner from 1990 to 1992. He was a founding member of the International Association of Refugee Law Judges (IARLJ), which he presently serves as Americas Vice President. He also consults, speaks, writes, and lectures at various forums throughout the country on immigration law topics.

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 The Honorable William Van Wyke served as an Immigration Judge from 1995 until 2015 in New York City and York, PA.

 The Honorable Gustavo D. Villageliu served as a Member of the Board from July 1995 to April 2003. He then served as Senior Associate General Counsel for the EOIR until he retired in 2011. Before becoming a Board Member, Villageliu was an Immigration Judge in Miami, with both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

 The Honorable Polly A. Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details to the Tacoma, Port Isabel (TX), Boise, Houston, Atlanta, Philadelphia, and Orlando immigration courts. Previously, she practiced immigration law from 1980 to 1995 in her own firm in San Jose, California. She served as National President of AILA from 1989 to 1990 and was a national AILA officer from 1985 to 1991. She also taught Immigration and Nationality Law for five years at Santa Clara University School of Law. She has spoken at seminars and has published extensively in the immigration law field.

HERE ARE THE ATTORNEYS AT GIBSON DUNN WHO MADE THIS HAPPEN:

Amer S. Ahmed

Ronald Kirk

Megan B. Kiernan

Lalitha D. Madduri

Chelsea G. Glover

Counsel for Amici Curiae

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

Thanks to all for making this happen. Great teamwork in the name of Due Process!

Special thanks to our colleague Judge Lory Diana Rosenberg who served as our “Group Leader” in working with Gibson Dunn and to Judge Jeffrey Chase for assembling the group and putting the “finishing touches” on the filing.

PWS

04-27-18

Case Name:	Sontos Diaz-Reynoso v. William Barr
Case Number:	18-72833
Document(s):	Document(s)

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