Arlington Immigration Court – Page 8 – immigrationcourtside.com

ARLINGTON IMMIGRATION COURT: ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Julia Navarro, and her client, F-R, from El Salvador. This afternoon, Immigration Judge Emmett D. Soper granted F-R’s asylum application. The ICE trial attorney waived appeal so the grant is final. Granted asylum along with F-R were her twelve and nine year-young sons, who live with her, and her husband, who remains in El Salvador.

F-R testified that the Mara 18 gang tried to recruit her then ten-year young son, but that he refused. As a result, he was beaten, resulting in visible injuries. However, he refused to tell F-R who beat him, and why. Finally, after repeated beatings, he told F-R. She confronted the gang members and asked them to leave her son alone. In response, they burned her with lit cigarettes on her chest, stomach, and arms. In addition, they demanded that she pay them $5,000. And they continued to beat her son. F-R went to the police twice, but nothing was done. Finally, after further beatings of her son and renewed demands for the $5,000, F-R and her husband decided that she and her two sons should come to the USA. After she left El Salvador, the gang members poisoned two of her dogs, whom, she testified, she considered part of her family. At the conclusion of her direct examination, Julia asked F-R if she would confront the gang members again, and she said yes, because “my children are my life, and I would give my life for theirs.”

Congratulations also to Sarah DeLong, Dalia Varela, Jengeih Tamba, and Jonathan Bialosky, who previously worked on this case.

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congrats to all involved!

Once more proving my point that with great representation, time to prepare, and a fair Immigration Court, many, perhaps the majority, of the so-called “Northern Triangle Gang Cases” are highly grantable!

This definitely calls into question the Administration’s use of unnecessary detention, unwarranted criminal prosecutions, expedited removal, denial of access to counsel, detention courts, and “removal quotas” to “discourage” valid claims for protection. The Administration’s policies are an overt attack on Due Process and the Rule of Law! Harm to the most vulnerable among us is harm to all of us!

Three cheers for the “New Due Process Army!”

PWS

02-23-18

BIGGIE ON GANG ASYLUM: PUBLISHED 4TH CIR. BLASTS BIA’S BOGUS APPROACH TO NEXUS IN GANG CASES — Court Eviscerates BIA’s Disingenuous Approach To Nexus In Matter of L-E-A- (Without Citing It!) – SALGADO-SOSA V. SESSIONS

4thGangsNexusSalgado-Sosa

Salgado-Sosa v. Sessions, 4th Cir., 04-13-18, Published

PANEL: GREGORY, Chief Judge, and FLOYD and HARRIS, Circuit Judges.

OPINION BY: JUDGE PAMELA HARRIS

SUMMARY OF HOLDING (From Court’s Opinion):

“Reynaldo Salgado-Sosa, a native and citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. If he is returned to Honduras, he fears, he will face persecution at the hands of the gang MS-13, which has repeatedly attacked his family for resisting extortion demands.

The agency proceedings focused on whether Salgado-Sosa could show, for purposes of both his asylum and withholding of removal claims, a nexus between MS-13’s threats and membership in a cognizable “particular social group” – here, Salgado-Sosa’s family. The Board of Immigration Appeals found that Salgado-Sosa could not establish the requisite nexus, and denied withholding of removal on that ground. The Board separately found that Salgado-Sosa’s asylum application was untimely, and that there was insufficient evidence to justify protection under the Convention Against Torture.

We conclude that the Board erred in holding that Salgado-Sosa did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Salgado-Sosa’s persecution is membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. On the asylum claim, we separately remand for consideration of whether our recent decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), affects Salgado-Sosa’s argument that a statutory “changed circumstances” exception allows consideration of his untimely application.”

KEY QUOTE FROM OPINION:

“For three reasons, we are “compelled to conclude,” see Hernandez-Avalos, 784 F.3d at 948, that the IJ and the Board erred in finding that Salgado-Sosa has not shown that his kinship ties are “at least one central reason” for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa “on account of” his connection to his stepfather and to his family. Salgado-Sosa testified, for instance, that MS-13 attacked him because of his stepfather Merez-Merlo’s conflict with the gang, not his own. Merez-Merlo similarly testified that his refusal to give MS-13 “what they wanted, which was the war tax,” led the gang to repeatedly threaten to kill his wife and son. J.A. 236; see J.A. 234, 315–16. Other evidence also corroborates the centrality of family ties. For example, the family’s long-time neighbor submitted an affidavit averring

2 As before the IJ and Board, Salgado-Sosa’s argument in this court emphasizes evidence that he and his family were targeted because of his stepfather’s testimony against MS-13. But both on appeal and before the agency, Salgado-Sosa also has argued more generally that he fears persecution based on his membership in a “particular social[] group, as defined by Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011).” Appellant’s Br. at 5; see also A.R. 101, 478–79. And our holding in Crespin-Valladares was not limited to family members of witnesses, but instead established that family membership itself is a “prototypical example of a [cognizable] particular social group.” 632 F.3d at 125 (internal quotation marks omitted). The IJ and BIA accordingly considered not only whether Salgado-Sosa was persecuted for being a family member of a witness, but also whether he was persecuted because of his kinship ties generally. See A.R. 126 (finding that Salgado-Sosa “has not demonstrated” that any persecution “would be on account of a statutorily protected ground, be that family group membership, as witnesses, or any other potential protected ground”) (emphasis added). Following that lead, we also consider whether the evidence shows that Salgado-Sosa was threatened on account of his familial ties, regardless of the role played by his stepfather’s testimony.

10

that “the reason why the gang members wants [sic] to hurt [Salgado-Sosa]” is that he “defended his stepfather from the gang member[s]” when they assaulted the family. J.A. 537 (emphasis added). And the IJ, as noted above, did not doubt the credibility of any of this evidence.

Second, that Salgado-Sosa’s anticipated harm is on account of membership in his family follows from the IJ’s own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa’s feared persecution are his stepfather’s refusal to pay the gang and revenge on the family for resisting MS-13’s extortion. See J.A. 5–6, 126–27. On a proper reading of the nexus requirement and our cases applying it, that finding compels the conclusion that Salgado-Sosa’s kinship ties are a central reason for the harm he fears.

Our decision in Hernandez-Avalos v. Lynch is instructive. There, the petitioner applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. 784 F.3d at 947. The BIA rejected her assertion that the persecution was “on account of” familial ties, concluding that the petitioner “was not threatened because of her relationship to her son (i.e. family), but rather because she would not consent to her son engaging in a criminal activity.” Id. at 949. We found this distinction “meaningless” and “unreasonable” given that “[petitioner’s] relationship to her son is why she, and not another person, was threatened” by the gang. Id. at 950 (emphasis added). Thus, because the petitioner’s “family connection to her son” was at least one of “multiple central reasons” for the gang’s threats, we found the nexus

requirement satisfied, and rejected the BIA’s contrary determination as resting on “an 11

excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. at 949–50.

The same logic applies here. There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather. See Hernandez-Avalos, 784 F.3d at 950. However characterized, Salgado-Sosa’s relationship to his stepfather (and to his family) is indisputably “why [he], and not another person, was threatened” by MS-13. See id. Thus, the IJ and BIA erred by focusing narrowly on the “immediate trigger” for MS-13’s assaults – greed or revenge – at the expense of Salgado-Sosa’s relationship to his stepfather and family, which were the very relationships that prompted the asserted persecution. See Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015) (holding that the BIA drew “too fine a distinction” between the “immediate trigger” for persecution – breaking the rules imposed on former gang members – and what ultimately led to persecution – protected status as a former gang member). On the IJ’s own unchallenged account of the facts – that Salgado-Sosa’s fear of persecution arises from the actions of his stepfather and his family – the only reasonable conclusion is that family membership is “at least one central reason for [his] persecution.” See Hernandez-Avalos, 784 F.3d at 950.

Third and finally, the BIA’s decision improperly focused on whether Salgado- Sosa’s family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa was persecuted because of a protected ground – here, his relationship to his

family. The critical fact, for the BIA, was that the motive for the attacks on Salgado- 12

Sosa’s family was “financial gain or personal vendettas,” neither of which is itself a protected ground under the INA. J.A. 6. But as we have explained before, it does not follow that if Salgado-Sosa’s family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family. Cordova v. Holder, 759 F.3d 332, 339 (4th Cir. 2014) (rejecting argument that feared persecution is not on account of membership in family if attacks on family are not related to protected ground). Instead, “[t]he correct analysis focuses on [Salgado-Sosa himself] as the applicant, and asks whether [he] was targeted because of [his] membership in the social group consisting of [his] immediate family.” Villatoro v. Sessions, 680 F. App’x 212, 221 (4th Cir. 2017). And once the right question is asked, the record admits of only one answer: whatever MS-13’s motives for targeting Salgado-Sosa’s family, Salgado-Sosa himself was targeted because of his membership in that family.

For all these reasons, it is clear that Salgado-Sosa has shown the required nexus between anticipated persecution and membership in a particular social group consisting of his family. Specifically, Salgado-Sosa has demonstrated that “at least one central reason” for the harm he faces is his connection to his stepfather and family. See 8 U.S.C. §1158(b)(1)(B)(i). Because the IJ and BIA relied exclusively on an erroneous determination as to nexus in denying withholding of removal, we vacate that denial and remand for further proceedings regarding Salgado-Sosa’s application.”

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First, congrats to Alfred Lincoln (“Rob”) Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, who successfully represented Mr. Salgado-Sosa before the Fourth Circuit. Rob was a “regular” in the Arlington Immigration Court, particularly on my always challenging detained docket. One of the things I liked about him is that he was willing to take “tough cases” — ones where the respondent had a decent argument but by no means a “slam dunk winner.” He also practiced before the local Virginia criminal courts, so was familiar with what “really happens” in criminal court as opposed to the “Alice in Wonderland Version” often presented in Immigration Court.

Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) lives! One of my all-time favorite cases, because I was the Immigration Judge incorrectly reversed by the BIA on an asylum grant. I was right on all sorts of things, and the BIA was wrong! But, hey, who remembers things like that?

This decision is good news for justice and due process for asylum seekers. It spells some bad news for the BIA’s highly contrived decision in Matter of L-E-A-, 27 I&n 40 (BIA 2017). There, the BIA looked beyond primary causation (the “but for” rule) of a family-based PSG to find a secondary cause, “criminal extortion” that did not relate to the protected ground. In other words, the BIA encouraged IJs to look for any way possible to twist facts to deny family-based PSG asylum claims. Indeed, the only lame example that the BIA could cite that might qualify under their bizarre analysis was the long-dead Romanov Family of Russia.

Both Judge Jeffrey Chase and I ripped the BIA’s anti-asylum, anti-Due Process machinations in previous blogs:

http://immigrationcourtside.com/2017/05/25/new-precedent-family-is-a-psg-but-beware-of-nexus-matter-of-l-e-a-27-in-dec-40-bia-2017-read-my-alternative-analysis/

http://immigrationcourtside.com/2017/06/03/introducing-new-commentator-hon-jeffrey-chase-matter-of-l-e-a-the-bias-missed-chance-original-for-immigrationcourtside/

What if EOIR concentrated on quality, Due Process, and fairness for asylum seekers, rather than merely looking for ways to deport more migrants (whether legally correct or not) in accordance with Sessions’s anti-migrant agenda? We need an independent Article I U.S. Immigration Court with an Appellate Division that acts like a U.S. Court of Appeals, not an extension of the Administration political agendas and DHS enforcement!

PWS

02-21-18

“GANG OF 14” FORMER IMMIGRATION JUDGES AND BIA APPELLATE IMMIGRATION JUDGES (INCLUDING ME) FILE AMICUS BRIEF IN SUPPORT OF ADMINISTRATIVE CLOSING! – Matter of Castro-Tum

HERE’S “OUR HERO” STEVEN H. SCHULMAN OF AKIN GUMP’S DC OFFICE WHO DID ALL THE “HEAVY LIFTING” OF DRAFTING THE BRIEF:

HERE’S THE “CAST OF CHARACTERS” (A/K/A “GANG OF 14”):

Amici curiae are retired Immigration Judges and former members of the Board of Immigration Appeals, who seek to address the Attorney General’s certified questions regarding administrative closure. Amici were appointed to serve at immigration courts around the United States and with the Board, and at senior positions with the Executive Office of Immigration Review. From their many combined years of service, amici have intimate knowledge of the operation of the immigration courts, including the importance of various procedural mechanisms to maintain efficient dockets. As explained in detail, administrative closure, when used judiciously, is a critical tool for immigration judges in managing their dockets. Without tools like administrative closure, immigration judges would be hampered, unable to set aside those matters that do not yet require court intervention and thus prevented from focusing on the removal cases that demand immediate attention.

In particular, 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 Page 2 of 32 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 Page 3 of 32 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 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. Page 4 of 32

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 Edward Kandler was appointed as an Immigration Judge in October 1998. Prior to his appointment to the Immigration Court in Seattle in June 2004, he served as an Immigration Judge at the Immigration Court in San Francisco from August 2000 to June 2004 and at the Immigration Court in New York City from October 1998 to August 2000. Judge Kandler received a Bachelor of Arts degree in 1971 from California State University at San Francisco, a Master of Arts degree in 1974 from California State University at Hayward, and a Juris Doctorate in 1981 from the University of California at Davis. Judge Kandler served as an assistant U.S. trustee for the Western District of Washington from 1988 to 1998. He worked as an attorney for the law firm of Chinello, Chinello, Shelton & Auchard in Fresno, California, in 1988. From 1983 to 1988, Judge Kandler served as an assistant U.S. attorney in the Eastern District of California. He was also with the San Francisco law firm of Breon, Galgani, Godino from 1981 to 1983. Judge Kandler is a member of the California Bar.

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 Page 5 of 32 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 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 the Immigration Law Section of the NJ State Bar Association, and in 2016 was awarded the Outstanding Prop Bono Attorney of the Year by the NJ Chapter of the Federal Bar Association. Page 6 of 32

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, DelRey & 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 facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she 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. She has also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School. Page 7 of 32

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 until he retired in 2011, helping manage FOIA, Privacy and Security as EOIR Records Manager. 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 1990-95. 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, Iowa he joined the Board as a staff attorney in January 1978, specializing in war criminal, investor, and criminal alien cases.

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT………………………………………………………………………………………………………………… 7

I. Immigration Judges and the Board have inherent and delegated authority to order administrative closure in a case ……………………………………………………………………………… 7

A. Federal courts have recognized that judges possess an inherent authority to order administrative closure………………………………………………………………………… 8

B. Regulations establishing and governing Immigration Judges ratify their inherent authority to order administrative closure. …………………………………………. 9

II. The Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure……………………………………………………………………….. 13

A. The legal standard set forth in Avetisyan and W-Y-U- gives the Immigration Judge the correct degree of independence in deciding motions for administrative closure. ……………………………………………………………………………… 13

B. The facts and disposition of the case at bar show that the legal standard under Avetisyan and W-Y-U- is working correctly. ………………………………………………… 16

III. Fundamental principles of administrative law hold that the Attorney General cannot change the regulations that grant this authority without proper notice and comment rulemaking. ……………………………………………………………………………………………………….. 18

A. Practical docket management considerations weigh in favor of retaining administrative closure. ……………………………………………………………………………… 19

B. Due process considerations also weigh in favor of retaining administrative closure. …………………………………………………………………………………………………… 21

IV. Options such as continuances, dismissal without prejudice, and termination without prejudice, are suboptimal as compared to administrative closure. …………………………….. 22

V. There is no reason to attach legal consequences to administrative closure. ………………… 25

FINALLY, HERE’S THE COMPLETE BRIEF FOR YOUR INFORMATION AND READING PLEASURE:

Former IJs and Retired BIA Members – FINAL Castro-Tum Brief

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Thanks again to all retired my colleagues. What a great opportunity to “reunite online” in support of a critically important cause affecting the American Justice System!
Special thanks to Judge Jeffrey Chase for spearheading the effort and getting all of us together!
“Super Special Thanks” to the amazing Steven H. Schulman, Partner at Akin Gump DC and to Akin Gump for donating your valuable time and expertise and making this happen!

PWS

02-17-18

MEET THE GOOD GUYS: NOVA SUPERSTAR IMMIGRATION ATTORNEY AVA BENACH HELPS “DREAMER TYPES” & THEY HELP AMERICA – THIS IS THE WAY THE SYSTEM CAN WORK WHEN YOU GET BEYOND THE WHITE NATIONALIST XENOPHOBIA OF TRUMP, SESSIONS, & MILLER & WHEN GREAT LAWYERS GET INVOLVED!

https://www.washingtonpost.com/local/she-was-almost-deported-as-a-teen-now-she-helps-frightened-versions-of-herself/2018/02/15/b39969a8-1245-11e8-9065-e55346f6de81_story.html

Petula Dvorak writes in the Washington Post:

“She was almost deported as a teen. Now she helps frightened versions of herself.

Liana Montecinos is a senior paralegal at Benach Collopy in Washington. She was 17 and about to be deported when lawyer Ava Benach helped her win asylum. (Jahi Chikwendiu/The Washington Post)

By Petula Dvorak Columnist February 15 at 3:39 PM Email the author

On many days in the shiny, sleek law office — in her sharp suit and sweeping view of Washington — she revisits all the horrors most people would want to forget:

The drunk men bursting into her tiny, adobe home at night, terrorizing the 15 children who lived there.

The walk across three countries, fearing for her life the entire way.

The months of eating nothing but beans and rice.

These are the same stories Liana Montecinos hears just about every time the 29-year-old paralegal sits down with a client.

Ava Benach, from left, Satsita Muradova and Liana Montecinos chat at their law office. (Jahi Chikwendiu/The Washington Post)

She doesn’t have to go there. She’s an American citizen and a third-year law student with a great future in front of her. But instead of going into something lucrative — corporate law, for example — she’s sticking with the law firm that helped her get political asylum.

“Being an immigrant and serving immigrants, it’s a very special connection,” Montecinos said.

And by doing that, she spends her days with frightened versions of herself.

I wanted to tell Montecinos’s story as Congress grapples with the fate of 1.8 million “dreamers,” the undocumented immigrants who were brought to this country as children. They face deportation under President Trump unless Congress can find a way to reinstate the protection they were given by President Barack Obama.

Montecinos was brought across the border by a relative in 1999, when she was 11 years old, after walking — yes, actually walking — from Honduras, across Guatemala, then across Mexico, crossing the Rio Grande into the United States.

She joined her mother in Northern Virginia — they had been separated since she was an infant and she had been raised by her grandmother — and her life was transformed.

She played volleyball and basketball in her Falls Church high school. She was a cheerleader and soccer player. She took Advanced Placement classes.

But no matter how well she was doing in school and no matter how faint her accent became, she knew it could all fall apart any second.

[She can’t bear to leave her kids. But she doesn’t want to be a criminal.]

And it nearly did when she was 17 and applied for legal status. Instead, the government began removal proceedings. She was going to be deported.

But it didn’t stop her from graduating from high school and enrolling at George Mason University, where she received a scholarship to cover the triple-tuition she had to pay as an undocumented student.

The scholarship’s donor — Helen Ackerman — introduced Montecinos to D.C. immigration attorney Ava Benach, who took on her complex case. What followed was a 10-year struggle.

“I met Liana when she was 17 years old,” Benach said. “And I knew she was special. She was out there, trying to figure out her own immigration status. I felt a very parental desire to help her.”

So they took on the case together, with Montecinos never giving up.

“I’d be doing an all-nighter, knowing I had a hearing the next day and the judge could send me away and it would all be for nothing,” she said.

But she kept studying, striving and working. You know how folks are always saying “Why don’t they just get legal?” It’s not that easy.

[My parents were welcomed as refugees. That was the America of 1968, not today.]

It took 10 years of hearings and arguments to convince a judge that she faced threats and violence in Honduras, in that tiny, adobe house, and that her hard work in school, model citizenship and potential were enough to grant her a place in American society.

Asylum is granted only to someone who faces persecution in their home country. And that persecution has to be for one of five reasons: your race, religion, nationality, membership in a particular social group, or your political opinion.

“It has to fit in one of five boxes,” Benach said. And her life’s work is helping her frightened clients qualify.

Montecinos was granted asylum and citizenship on June 29, 2016.

“For many, becoming a U.S. citizen is the last part of the process,” Montecinos wrote on her Facebook page that day. “For others, like myself, it is the beginning to end 16 plus years of uncertainty and of fear of a forceful return to imminent harm.”

She called herself “extremely blessed and thankful for such a privilege, which is denied to many,” she said. “This path, however, was not easy. It was not short. It was not cheap.”

She is in her third year of law school at the University of the District of Columbia, where she received a Student Humanitarian and Civic Engagement award on Thursday.

In her spare time, you see, she runs a nonprofit group she founded, United for Social Justice, which helps low-income, first-generation Americans get access to higher education. Oh, and she coaches and plays on a bunch of soccer teams.

When she meets with the undocumented children who are like her, the ones she is fighting for, it reminds her of her struggle.

Though her own story is horrible — think of being 11 and scared, hiding your face with blankets as you cross strange villages where people are yelling “pollos mojados” (wet chickens) at you, not knowing where you’re going — her clients recount even more heart-stopping stories.

She hears from children who were kidnapped, who rode for days on top of speeding trains, afraid to fall asleep because they’d fall off, from a little girl who was gang-raped in front of her father.”

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Ava has a “Major League” legal mind to go with a “heart of gold!” She and her colleagues from her firm appeared on many occasions before me at the Arlington Immigration Court.

This article aptly illustrates one of the points I often make. Asylum law has intentionally been “jacked” against Central Americans by a non-independent BIA working under pressure from politicos to limit protections to large groups. Nevertheless, with a good lawyer (e.g., one who isn’t afraid to argue the BIA’s — often otherwise ignored — favorable precedents back to them and to take wrong BIA denials to the Court of Appeals if necessary), resources to build and document a case, and persistence, most of the “Dreamers” probably could win some type of relief in Immigration Court if not at the Asylum Office or elsewhere at USCIS.

But, what rational reason could there be for forcing folks like Liana Montecinos who are already here, part of our society, and just want to become taxpaying citizens and REALLY “Make America Great” (not to be confused with the disingenuous racist slogan of Trump and his White Nationalist “base”) go through such a laborious process? And what possible rationale could there be for wasting the time of an already overburdened Immigration Court system with cases of individuals who clearly should be welcomed and accepted into American society without being placed in “Removal Proceedings?” Also, what would be the rationale for trying to artificially “speed up” complex cases like Liana’s and trying to make life difficult for talented lawyers like Ava?

The answer is clear: there is NO rationale for the “Gonzo” Immigration enforcement and “designed chaos and attack on Due Process in Immigration Court” that Trump, Miller, Sessions, Nielsen, Tom Homan and their ilk are trying to ram down our throats. Sessions is the problem for justice in our Immigration Courts; lawyers like Ava are a key part of the solution! Clearly, the U.S. Immigration Courts are too important to our system of justice to be left in the clutches of a biased, “enforcement only,” White Nationalist, xenophobic opponent of individual due process like Jeff Sessions! American needs an independent Article I U.S. Immigration Court! Harm to the least and most vulnerable among us is harm to all!

The good news is that folks like Ava and her fellow “Generals” of the “New Due Process Army” are out there to fight Trump, Sessions & Company and their White Nationalist, anti-American actions every step of the way and to vindicate the Constitutional and legal rights of great American migrants like Liliana and millions of others similarly situated. They are “American’s future!” Trump, Sessions, Miller, et al., are the ugly past of America that all decent Americans should be committed to “putting in the rear-view mirror” where the “Trumpsters” live and belong! And, it won’t be long before Liliana becomes an attorney and a “full-fledged member” of the “New Due Process Army!”

Go Ava! Go Liliana! Due Process Forever!

PWS

02-16-18

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

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

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

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

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

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

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

Good luck to Judge Snow in his new temporary assignment.

PWS

02-11-17

AILA URGES CONGRESS TO CREATE INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT TO REPLACE CURRENT DUE PROCESS TRAVESTY! – “In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.”

RESOLUTION ON IMMIGRATION COURT REFORM AILA Board of Governors Winter 2018

PROPONENT: AILA Executive Committee and AILA EOIR Liaison Committee

Introduction:

Our immigration court system does not meet the standards which justice demands. Chronic and systemic problems have resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner. As a component of the Department of Justice (DOJ), EOIR has been particularly vulnerable to political pressure. Immigration judges, who are currently appointed by the Attorney General and are DOJ employees, have struggled to maintain independence in their decision making. In certain jurisdictions, the immigration court practices and adjudications have fallen far below constitutional norms. Years of disproportionately low court funding levels – as compared to other components of the immigration system such as ICE and CBP – have contributed to an ever-growing backlog of cases that is now well over 600,000.

Despite the well-documented history of structural flaws within the current immigration court system, DOJ and EOIR have failed to propose any viable plan to address these concerns. In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.

RESOLUTION: The Board hereby reaffirms and clarifies its position on immigration court reform as follows:

In its current state, the immigration court system requires a complete structural overhaul to address several fundamental problems. AILA recommends that Congress create an independent immigration court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. Such an entity would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system.

Below is an outline of the basic features that should be included in the Article I court.

Independent System: Congress should establish an immigration court system under Article I of the Constitution, with both trial and appellate divisions, to adjudicate immigration cases.

This structural overhaul advances the immigration court’s status as a neutral arbiter, ensuring the independent functioning of the immigration judiciary.

Appellate Review:

AILA recommends that the new Article I court system provide trial level immigration courts and appellate level review, with further review to the U.S. Circuit Courts of Appeals and the U.S. Supreme Court. To prevent overburdening Article III courts, it is necessary to include an appellate court within the Article I court system.

Judicial Appointment Process:

AILA recommends the appointment of trial-level and appellate-level judges for a fixed term of no less than 10 years, with the possibility of reappointment. These judges would be appointed by the U.S. Court of Appeals for the federal circuit in which the immigration court resides. The traditional Article I judicial appointment process, which relies on Presidential appointment with Senate confirmation, would be unworkable for the immigration court system and could easily create a backlog in judicial vacancies. The U.S. Bankruptcy Court system, which uses a different appointment process than other Article I courts, is a better model for the immigration court system, due to the comparable size and the volume of cases. Like the U.S. Bankruptcy Court System, which has 352 judges, the immigration court currently has over 300 judges. Traditional Article I courts have far fewer judges than that of the U.S. Bankruptcy Court System. Therefore, AILA recommends a judicial appointment system that closely resembles that of the U.S. Bankruptcy Court.

Hiring Criteria for Judges:

Trial and appellate judges that are selected should be highly qualified, and well-trained, and should represent diverse backgrounds. In addition to ensuring racial ethnic, gender, gender identity, sexual orientation, disability, religious, and geographic diversity, AILA advocates for a recruitment and selection process that is designed to ensure that the overall corps of immigration judges is balanced between individuals with a nongovernment, private sector background, and individuals from the public sector. We believe this balance best promotes the development of the law in the nation’s interest.

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Read the complete report here:

AILA Resolution Passed 2.3.2018

The proposal that U.S. Immigration Judges be appointed by the U.S. Courts of Appeals for renewable 10 year terms is particularly salutary. The current process needs to be professionalized and de-politicized. The U.S. Courts of Appeals are the “primary professional consumers” of the work product of the U.S. Immigration Judges. The U.S. Bankruptcy Court Appointment System recommended by AILA has earned high praise for producing a fair, impartial, merit-based, apolitical judiciary.

The current ridiculous selection and appointment process within the DOJ has two stunning deficiencies.

First, it has become an “insider-only” judiciary. Over the past three Administrations nearly 90% of the newly appointed U.S. Immigration Judges have been from government backgrounds, primarily DHS/ICE prosecutors. Outside expertise, including that gained from representing individuals in Immigration Court, clinical teaching, and working for NGOs and pro bono groups has been systematically excluded from the Immigration Court judiciary, giving it a built-in “one-sided” appearance.

Remarkably, the situation at the appellate level, the Board of Immigration Appeals (“BIA”) has been even worse! No Appellate Immigration Judge/Board Member has been appointed from “outside Government” since 2000, and both of those have long since been removed or otherwise moved on.

Indeed, even sitting (as opposed to “administrative”) U.S. Immigration Judges are seldom appointed or even interviewed for BIA vacancies. There is only one current Appellate Immigration Judge who was appointed directly from the trial court, and that individual had only a modest (approximately three years) amount of trial experience. Thus, a number of sources of what would logically be the most expert and experienced appellate judicial candidates have been systematically excluded from the appointment process at the DOJ.

Second, while the results produced are highly problematic, the DOJ hiring process for U.S. Immigration Judges has been amazingly glacial! According to the Government Accountability Office (“GAO”) the Immigration Judge appointment process during the last Administration took an average of two years! That’s longer than the Senate confirmation process for Article III Judges!

Much of the delay has reportedly been attributed to the slowness of the “background check process.” Come on man! Background checks are significant, but are essentially ministerial functions that can be speeded up at the will of the Attorney General.

It’s not like Eric Holder, Loretta Lynch, or Jeff Sessions were willing to wait two years for background clearance for their other high-level appointees in the DOJ. No, it’s simply a matter of screwed up priorities and incompetence at the highest levels of the DOJ. And, let’s not forget that most of the appointees are already working for the DHS or the DOJ. So they currently have high-level background clearances that merely have to be “updated.”

It should be “child’s play” — a “no-brainer.” When Anthony C. “Tony” Moscato was the Director and Janet Reno was the Attorney General, background checks often were completed for Immigration Judges and BIA Members in less than 60 days. And, if Tony really needed someone on board immediately, he picked up the phone, called “downtown,” and it happened. Immediately! Competence and priorities!

Our oldest son Wick has been private bar member of the U.S. Magistrate Judge Recommendation Committee for the Eastern District of Wisconsin. Their process was much more open, timely, and merit-focused than the current DOJ hiring process (whatever that might actually be) and fairly considered candidates from both inside and outside government.

Also, the slowness of the background check process unfairly prejudices “outside applicants.” Sure, it’s annoying for a “Government insider” to have to wait for clearance. But, his or her job and paycheck continue without problem during the process.

On the other hand, “outside applicants” have to make “business decisions,” — whether to take on additional employees or accept new clients; whether to commit to another year of teaching; whether to accept promotions, etc — that can be “deal breakers” as the process creeps along without much useful feedback from EOIR.

Attorney General Sessions has claimed that he has a “secret process” for expediting appointments. But, so far, except for a “brief flurry” of appointments that were reportedly “already in the pipeline” under Lynch, there hasn’t been much noticeable change in the timelines. Additionally, the process is often delayed because DOJ and EOIR have not planned adequately, and therefore have not acquired adequate space and equipment for new judges to actually start hearing cases.

Government bureaucrats love acronyms (so do I, in case you hadn’t noticed)! There is only one acronym that can adequately capture the current sorry state of administration of the U.S Immigration Courts under DOJ and EOIR administration: “FUBAR!”

And that’s without even getting to the all-out assault on Due Process for vulnerable respondents in the U.S. Immigration Courts being carried out by Jeff Sessions and his minions. According to my information, DOJ/EOIR “management” is pushing Immigration Judges to render twenty-minute “oral decisions;” complete “quotas” of 4-5 cases a day to get “satisfactory” ratings; and not include bond cases, administrative closure, Change of Venue, Credible Fear Reviews, or Motion to Reopen rulings in completions.

Since it takes an experienced Immigration Judge 3-4 hours to do a good job on a “fully contested” asylum decision with oral decision, that’s a “designed to fail” proposal that will undoubtedly lead to cutting of corners, numerous denials of Due Process, and remands from the U.s. courts of Appeals. But despite some disingenuous “rote references” to Due Process, it’s not even an afterthought in Sessions’s plan to turn Immigration Court into “Just Another Whistle Stop on The Deportation Railroad.”

As I say, “Bad ideas never die; they have a life of their own within the bureaucracy.” That’s why we need to get Immigration Courts out of the bureaucracy!

This Congress, which “can barely even tie its own shoes,” so to speak, isn’t likely to get around to creating an Article I Immigration Court. But, every day that the current mal-administered and unfair system remains within the DOJ is a Due Process and fairness disaster. That’s something that even Congress should be concerned about!

Thanks to Attorney (and former Immigraton Judge) Sue Roy of New Jersey for sending me the AILA Resolution.

PWS

02-07-18

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

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

“Feb 4 The Proper Role of Immigration Judges as Asylum Adjudicators

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

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

Paragraphs 66 and 67 of the Handbook state the following:

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

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

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

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

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

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

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

Notes:

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

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

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

NEW BIA PRECEDENT SAYS DUI “IS A SIGNIFICANT ADVERSE CONSIDERATION IN BOND PROCEEDINGS” & FINDING OF “DANGEROUSNESS” CAN’T BE “OFFSET” BY CLOSE FAMILY & COMMUNITY TIES IN THE U.S. – MATTER OF SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

3914–DUI-Bond

Matter of SINIAUSKAS, 27 I&N Dec. 207 (BIA 2018)

BIA HEADNOTE:

“(1) In deciding whether to set a bond, an Immigration Judge should consider the nature and circumstances of the alien’s criminal activity, including any arrests and convictions, to determine if the alien is a danger to the community, but family and community ties generally do not mitigate an alien’s dangerousness.

(2) Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings.”

BIA PANEL: Appellate Immigration Judges MALPHRUS, MULLANE, and GREER

OPINION BY: Judge Garry D. Malphrus

KEY QUOTE:

“The issue in this case is whether the respondent is a danger to the community, and family and community ties generally do not mitigate an alien’s dangerousness. While there may be a situation where a family member’s or other’s influence over a young respondent’s conduct could affect the likelihood that he would engage in future dangerous activity, this is not such a case. The respondent is an adult and has not shown how his family circumstances would mitigate his history of drinking and driving, except to explain that the most recent incident occurred on the anniversary of his mother’s death. The factors that the respondent claims mitigate or negate his dangerousness existed prior to his most recent arrest, and they did not deter his conduct.

We recognize that the Immigration Judge set a significant bond of $25,000, which he said “reflects the seriousness with which this court views the respondent’s repeated conduct.” However, an Immigration Judge should only set a monetary bond if the respondent first establishes that he is not a danger to the community. Matter of Urena, 25 I&N Dec. at 141.

This is not a case involving a single conviction for driving under the influence from 10 years ago. The respondent has multiple convictions for driving under the influence from that period and a recent arrest for the same conduct, which undermines his claim that he has been rehabilitated. Under these circumstances, we are unpersuaded that the respondent has met his burden to show that that he is not a danger to the community. See Matter of Fatahi, 26 I&N Dec. at 793−94. We therefore conclude that he is not eligible for bond. Accordingly, the DHS’s appeal will be sustained, the Immigration Judge’s decision will be vacated, and the respondent will be ordered detained without bond.”

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As an Immigration Judge, I would have come out the same way the BIA did on this case. I would not have set bond.

For me, that the respondent was arrested again for DUI, ten years after his last of three previous DUI convictions, is telling. It shows me that the problem is a continuing one that has not been solved by passage of time or counseling, that the respondent still hasn’t “gotten the picture” about the dangers of DUI, and, significantly, that I couldn’t trust him not to DUI again or get in some other trouble while out on bond.

Less face it, stressful and traumatic events are a constant occurrence in life, particularly for someone already in Removal Proceedings. Therefore, I wouldn’t “buy” the respondent’s argument that the anniversary of his mother’s death was a “one-timer” that wouldn’t happen again.

What if he loses his job, what if a family member has a medical emergency, what if he has domestic problems — all of these fairly common traumas in our community. Why won’t he react the same way he did to the one-year anniversary of his mother’s death? Also, having a LPR wife, USC daughter, and a possible avenue for legal immigration didn’t seem to “motivate” him to say away from trouble. If he DUIs again while awaiting hearing, it’s on my hands. No thanks.

No, I’d rather have a full hearing on this respondent in detention where I know here won’t get into any more trouble in the meantime. If, after that hearing he qualifies for some relief and the equities outweigh the adverse factors, then so be it. I’d grant the case. But, I wouldn’t trust this guy out on the street on my bond during the several years it might take to get to a case such as this on the Arlington non-detained docket. “Getting to the bottom” of complicated cases like this is the purpose of the Individual Merits Hearings.

That said, if the pending DUI changes were dismissed or he were found “not guilty,” I’d be willing to “revisit” the bond.

So, what’s the danger with the BIA’s decision here. That it will be misread by the DHS or Immigration Judges for things the BIA didn’t hold:

The BIA did not say that bond could never be granted in a DUI case, even where there was a recent arrest;
The BIA also did not say that family and community support could never be a factor in assessing “dangerousness.” On the contrary, the BIA recognized that there could be situations where the influence of family or community members would be a proper factor for the Immigration Judge to consider in assessing dangerousness. For example, I found that having family members or co-workers who would drive the respondent to work and counseling as well as involvement in community or church-based alcohol avoidance groups were often strong predictors that individuals could avoid future alcohol-related problems. But, sadly, in this case, neither family nor past efforts at rehabilitation seem to have worked.

PWS

02-05-18

EAGLES UPSET PATS 41-33 IN TRULY SUPER SUPERBOWL! — BACKUP QB NICK FOLES STARS — BRADY SETS YARDAGE RECORD IN DEFEAT! 🦅🦅🦅🦅

Great game! Lots of offense. Not much “D” until Eagles got a “strip” on Brady late to help seal the victory. But, the great TB still had one last shot as “Hail Mary” fell incomplete in end zone as time expired.

Former Wisconsin Badger star running back Corey Clement played a key role with several big plays including a huge second half TD catch upheld on review. Gutsy call on 4th and goal from the one at the end of the first half by Eagles Coach Doug Pederson involving a center snap to Clement, pitch-back, and pass from an end to QB Nick Foles for a key TD and Superbowl first (TD pass caught by a QB). Foles was, quite deservedly, the MVP of the Superbowl! A guy who lost his starting job, bounced around, almost quit football, but did what a backup QB is supposed to do — play like the starter and win games in the clutch!

Another former Badger star running back, James White, one of the heroes of the Patriots’ comeback win in last year’s Super Bowl, scored New England’s first touchdown on a 26 yard run in the second quarter.

Special congratulations to my good friend and colleague retired Judge Wayne Iskra, a lifelong (and long suffering) Eagles fan!

Fly Eagles Fly! 🦅🦅🦅

PWS

02-04-18

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

3912

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

BIA HEADNOTE:

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

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

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

OPINION BY: Judge Garry D. Malphrus

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Jan 26 The Impact of the BIA’s Decision in Matter of W-Y-C- & H-O-B-

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

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

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

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

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

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

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

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

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

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

Why?

Copyright 2017 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

REPRINTED WITH PERMISSION

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

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

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

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

I dissent!

PWS

01-26-18

LAW YOU CAN USE: Jason Dzubow, “The Asylumist,” With Tips On How To Deal With The One-Year Filing Bar To Asylum!

The One-Year Asylum Filing Deadline and What to Do About It
by JASON DZUBOW on JANUARY 18, 2018
The law requires that people who wish to seek asylum in the United States file their applications within one year of arriving here. See INA § 208(a)(2)(B). Those who fail to timely file are barred from asylum unless they meet an exception to the rule (they may still qualify for other—lesser—humanitarian benefits such as Withholding of Removal and relief under the United Nations Convention Against Torture).

If you arrived in the U.S. on this day, you are still eligible to apply for asylum, even if it seems like a hundred years ago.
So why do we have this rule? And what are the exceptions?

Congress created the one-year bar in 1996. Its ostensible purpose is to prevent fraud. If you really fear return to your home country, the theory goes, one year should be enough time to figure things out and get your application filed.

For most people, I suppose that this is true—they can ask questions, find help, and file for asylum within a year. But this is easier for some than for others. People who are less educated, people whose life experiences have taught them to mistrust and avoid authority, people who are isolated and socially disconnected, people who are depressed; such people might have a harder time with the one-year bar (and of course, many of these characteristics are common among asylum seekers). Others will have an easier time: Well-educated people, people who speak English, people who have a certain level of self-confidence, and people who are engaged with the community.

There are also certain populations that seem to have difficulty with the one-year rule. At least in my experience, many LGBT asylum cases were filed after the one-year period. I suspect there are several reasons for this. For one, an immigrant’s primary connection to mainstream America is her community in the U.S. But if she is afraid to reveal her sexuality to her countrymen living here, and she cannot get their help with the asylum process, she may be unable to file on time. Also, there is the coming-out process itself. People in certain countries may not have even conceptualized themselves as gay, and so the process of accepting their own sexuality, telling others, and then applying for asylum may be lengthy and difficult.

Asylum seekers like those discussed above are sometimes blocked by the one-year rule, but in these cases, the rule is not preventing fraud; it is harming bona fide applicants.

Where the rule seems more likely to achieve its intended purpose is the case of the alien who has spent years in the United States without seeking asylum, and now finds himself in removal proceedings. Such aliens often file for asylum as a last-ditch effort to remain in the U.S. (or at least delay their deportation). Many people from Mexico and Central America are in this position, and the one-year rule often blocks them from obtaining asylum (in addition, such applicants often fear harm from criminals; this type of harm does not fit easily within the asylum framework and contributes to the high denial rate for such cases).

Although there may be situations where the one-year bar prevents fraud, the vast majority of immigration lawyers—including this one—think it does little to block fake cases, and often times prevents legitimate asylum seekers from obtaining the protection they need. In short, we hate this rule, and if I ever become king, we will find other, more effective ways, to fight fraud. Until then, however, we have to live with it.

So for those who have missed the one-year filing deadline, what to do?

There are two exceptions to the one-year rule: Changed circumstances and extraordinary circumstances. See INA § 208(a)(2)(D). If you meet either of these exceptions, you may still be eligible for asylum. Federal regulations flesh out the meaning of these concepts. See 8 C.F.R. §§ 208.4(a)(4) & (5). First, changed circumstances–

(4)(i) The term “changed circumstances” … refer to circumstances materially affecting the applicant’s eligibility for asylum. They may include, but are not limited to: (A) Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence; (B) Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or (C) In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

(ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”

It is a bit unclear how long this “reasonable period” is. A few months is probably (but no guarantee) ok, but six months is probably too long. So if there are changed circumstances in your case, the sooner you file for asylum, the better.

The regulations also define extraordinary circumstances–

(5) The term “extraordinary circumstances” … shall refer to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances. The burden of proof is on the applicant to establish… that the circumstances were not intentionally created by the alien through his or her own action or inaction, that those circumstances were directly related to the alien’s failure to file the application within the 1-year period, and that the delay was reasonable under the circumstances. Those circumstances may include but are not limited to:

(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;

(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;

(iii) Ineffective assistance of counsel….

(iv) The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;

(v) The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; and

(vi) The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.

Again, if you have extraordinary circumstances, you must file within a “reasonable period.” How long you have to file has not been clearly defined, so the sooner you file, the safer you will be in terms of the one-year bar.

When it comes to asylum, the best bet is to file within one year of arrival. But if you have missed that deadline, there are exceptions to the rule. These exceptions can be tricky, and so it would probably be wise to talk to a lawyer if you are filing late. It is always a shame when a strong asylum case is ruined by a one-year issue. Keep this deadline (emphasis on “dead”) in mind, and file on time if you can.

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In the outstanding tradition of former Arlington Immigration Court Judicial Law Clerks, Jason thinks creatively and writes clearly.

PWS

01-25-18

JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

https://www.themarshallproject.org/2018/01/19/lost-in-court

Julia writes for The Marshall Project:

“. . . .

And so in this gateway city on the Rio Grande [Laredo], inside a building rimmed with barbed wire, past security guards and locked doors, immigration judges on short details started hearing cases in a cramped courtroom that was hastily arranged in March.

But seven months later, the case of Oscar Arnulfo Ramírez, an immigrant from El Salvador, was not going quickly. He was sitting in detention, waiting for a hearing on his asylum claim. And waiting some more.

The court files, his lawyer discovered, showed that Ramírez’s case had been completed and closed two months earlier. Since the case was closed, the court clerk couldn’t schedule a new hearing to get it moving again. In fact, the clerk didn’t even have a record that he was still detained.

“It’s as if he’s non-existent,” his lawyer,, said. “He’s still in a detention center. He’s still costing the government and the American people tax dollars. But there’s no proceeding going on. He’s just sitting there doing completely nothing.”

Ramírez’s case was one of many signs of disarray in the improvised court in Laredo, which emerged during a weeklong visit in late October by a reporter from The Marshall Project and a radio producer from This American Life. Instead of the efficiency the Trump administration sought, the proceedings were often chaotic. Hearing schedules were erratic, case files went missing. Judges were exasperated by confusion and delays. Like Ramírez, detainees were lost in the system for months on end.

For a view of the border crossing in Laredo and the grinding process migrants begin there, check out Kirsten Luce’s photosfrom the gateway on the Rio Grande.

With the intense pressure on the court to finish cases, immigrants who had run from frightening threats in their home countries were deported without having a chance to tell the stories that might have persuaded a judge to let them stay.

. . . .

For Paola Tostado, the lawyer, Ramírez was not the first client to fall through the cracks in Laredo. Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.

Another Salvadoran asylum-seeker she represented, whose case was similarly mislaid, had gone for four months with no hearing and no prospect of having one. Eventually he despaired. When ICE officers presented him with a document agreeing to deportation, without consulting Tostado he had signed it.

“I’ve had situations where we come to an individual client who has been detained over six months and the file is missing,” she said. “It’s not in San Antonio. It’s not in Laredo. So where is it? Is it on the highway?”

In her attempts to free Ramírez, Tostado consulted with the court clerk in San Antonio, with the ICE prosecutors and officers detaining him, but no one could say how to get the case started again.

Then, one day after reporters sat in the courtroom and spoke with Tostado about the case, ICE released him to pursue his case in another court, without explanation.

But by December Tostado had two other asylum-seekers who had been stalled in the system for more than seven months. She finally got the court to schedule hearings for them in the last days of the year.

“I think the bottom line is, there’s no organization in this Laredo court,” Tostado said. “It’s complete chaos and at the end of the day it’s not fair. Because you have clients who say, I just want to go to court. If it’s a no, it’s a no. If it’s a yes, it’s a yes.”

Unlike criminal court, in immigration court people have no right to a lawyer paid by the government. But there was no reliable channel in Laredo for immigrants confined behind walls to connect with low-cost lawyers. Most lawyers worked near the regular courts in the region, at least two hours’ drive away.

Sandra Berrios, another Salvadoran seeking asylum, learned the difference a lawyer could make. She found one only by the sheerest luck. After five months in detention, she was days away from deportation when she was cleaning a hallway in the center, doing a job she had taken to keep busy. A lawyer walked by. Berrios blurted a plea for help.

The lawyer was from a corporate law firm, Jones Day, which happened to be offering free services. Two of its lawyers, Christopher Maynard and Adria Villar, took on her case. They learned that Berrios had been a victim of vicious domestic abuse. A Salvadoran boyfriend who had brought her to the United States in 2009 had turned on her a few years later when he wanted to date other women.

Once he had punched her in the face in a Walmart parking lot, prompting bystanders to call the police. He had choked her, burned her legs with cigarettes, broken her fingers and cut her hands with knives. Berrios had scars to show the judge. She had a phone video she had made when the boyfriend was attacking her and records of calls to the Laredo police.

The lawyers also learned that the boyfriend had returned to El Salvador to avoid arrest, threatening to kill Berrios if he ever saw her there.

She had started a new relationship in Texas with an American citizen who wanted to marry her. But she’d been arrested by the Border Patrol at a highway checkpoint when the two of them were driving back to Laredo from an outing at a Gulf Coast beach.

After Berrios been detained for nine months, at a hearing in July with Maynard arguing her case, a judge canceled her deportation and let her stay. In a later interview, Berrios gave equal parts credit to God and the lawyers. “I would be in El Salvador by this time, already dead,” she said. “The judges before that just wanted to deport me.”

. . . .

We have heard frustration across the board,” said Ashley Tabaddor, a judge from Los Angeles who is the association [NAIJ] president. She and other union officials clarified that their statements did not represent the views of the Justice Department. “We’ve definitely heard from our members,” she said, “where they’ve had to reset hundreds of cases from their home docket to go to detention facilities where the docket was haphazardly scheduled, where the case might not have been ready, where the file has not reached the facility yet.”

Another association official, Lawrence Burman, a judge who normally sits in Arlington, Va., volunteered for a stint in a detention center in the rural Louisiana town of Jena, 220 miles northwest of New Orleans. Four judges were sent, Burman said, but there was only enough work for two.

“So I had a lot of free time, which was pretty useless in Jena, Louisiana,” Burman said. “All of us in that situation felt very bad that we have cases back home that need to be done. But in Jena I didn’t have any of my files.” Once he had studied the cases before him in Jena, Burman said, he was left to “read the newspaper or my email.”

The impact on Burman’s case docket back in Arlington was severe. Dozens of cases he was due to hear during the weeks he was away had to be rescheduled, including some that had been winding through the court and were ready for a final decision. But with the enormous backlog in Arlington, Burman had no openings on his calendar before November 2020.

Immigrants who had already waited years to know whether they could stay in the country now would wait three years more. Such disruptions were reported in other courts, including some of the nation’s largest in Chicago, Miami and Los Angeles.

“Many judges came back feeling that their time was not wisely used,” Judge Tabaddor, the association president, said, “and it was to the detriment of their own docket.”

Justice Department officials say they are pleased with the results of the surge. A department spokesman, Devin O’Malley, did not comment for this story but pointed to congressional testimony by James McHenry, the director of the Executive Office for Immigration Review. “Viewed holistically, the immigration judge mobilization has been a success,” he said, arguing it had a “positive net effect on nationwide caseloads.”

Justice Department officials calculated that judges on border details completed 2700 more cases than they would have if they had remained in home courts. Officials acknowledge that the nationwide caseload continued to rise during last year, reaching 657,000 cases by December. But they noted that the rate of growth had slowed, to .39 percent monthly increase at the end of the year from 3.39 percent monthly when Trump took office.

Judge Tabaddor, the association president, said the comparison was misleading: cases of immigrants in detention, like the ones the surge judges heard, always take priority and go faster than cases of people out on release, she said. Meanwhile, according to records obtained by the National Immigrant Justice Center, as many as 22,000 hearings in judges’ home courts had to be rescheduled in the first three months of the surge alone, compounding backlogs.

. . . .”

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Read Julia’s complete article at the above link. Always enjoy getting quotes from my former Arlington colleague Judge Lawrence O. (“The Burmanator”) Burman. He tends to “tell it like it is” in the fine and time-honored Arlington tradition of my now retired Arlington colleague Judge Wayne R. Iskra. And, Judge Iskra didn’t even have the “cover” of being an officer of the NAIJ. Certainly beats the “pabulum” served up by the PIO at the “Sessionized” EOIR!

Also, kudos to one of my “former firms” Jones Day, its National Managing Partner Steve Brogan, and the Global Pro Bono Counsel Laura Tuell for opening the Laredo Office exclusively for pro bono immigration representation, As firms like jones Day take the “immigration litigation field,” and give asylum applicants the “A+ representation” they need and deserve, I predict that it’s going to become harder for the Article III U.S. Courts to ignore the legal shortcomings of the Immigration Courts under Sessions.

A brief aside. My friend Laura Tuell was a “Guest Professor” during a session of my Immigration Law & Policy class at Georgetown Law last June. On the final exam, one of my students wrote that Laura had inspired him or her to want a career embodying values like hers! Wow! Talk about making a difference on many levels!And talk about the difference in representing real values as opposed to the legal obfuscation and use of the legal system to inflict wanton cruelty represented by Sessions and his restrictionist ilk.

We also should recognize the amazing dedication and efforts of pro bono and “low bono” lawyers like Paola Tostado, mentioned in Julia’s report. “Even though she is based in Brownsville, three hours away, Tostado was making the pre-dawn drive up the highway as many as three times a week, to appear next to her clients in court in Laredo whenever she could.” What do you think that does to her law practice? As I’ve said before, folks like Paola Tostado, Christopher Maynard, Adria Villar, and Laura Tuell are the “real heroes” of Due Process in the Immigraton Court system.

Compare the real stories of desperate, bona fide asylum seekers and their hard-working dedicated lawyers being “stiffed” and mistreated in the Immigration Court with Sessions’s recent false narrative to EOIR about an asylum system rife with fraud promoted by “dirty attorneys.” Sessions’s obvious biases against migrants, both documented and undocumented, and particularly against Latino asylum seekers on the Southern Border, make him glaringly unqualified to be either our Attorney General or in charge of our U.S. Immigration Court system.

No amount of “creative book-cooking” by EOIR and the DOJ can disguise the human and due process disaster unfolding here. This is exactly what I mean when I refer to “”Aimless Docket Reshuffling” (“ADR”), and it’s continuing to increase the Immigration Court backlogs (now at a stunning 660,000) notwithstanding that there are now more Immigration Judges on duty than there were at the end of the last Administration.

I’ll admit upfront to not being very good at statistics and to being skeptical about what they show us. But, let’s leave the “Wonderful World of EOIR” for a minute and go on over to TRAC for a “reality check” on how “Trumpism” is really working in the Immigration Courts. http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

On September 30, 2016, near the end of the Obama Administration, the Immigration Court backlog stood at a whopping 516,000! Not good!

But, now let go to Nov. 30, 2017, a period of 14 months later, 10 of these full months under the policies of the Trump Administration. The backlog has mushroomed to a stunning 659,000 cases — a gain of 153,000 in less than two years! And, let’s not forget, that’s with more Immigration Judges on board!

By contrast, during the last two full years of the Obama Administration — September 30, 2014 to September 30, 2016 — the backlog rose from 408,000 to 516,000. Nothing to write home about — 108,000 — but not nearly as bad as the “Trump era” has been to date!

Those who know me, know that I’m no “fan” of the Obama Administration’s stewardship over the U.S. Immigration Courts. Wrongful and highly politicized “prioritization” of recently arrived children, women, and families from the Northern Triangle resulted in “primo ADR” that sent the system into a tailspin that has only gotten worse. And, the glacial two-year cycle for the hiring of new Immigration Judges was totally inexcusable.

But, the incompetence and disdain for true Due Process by the Trump Administration under Sessions is at a whole new level. It’s clearly “Amateur Night at the Bijou” in what is perhaps the nation’s largest Federal Court system. And, disturbingly, nobody except a few of us “Immigration Court Groupies” seems to care.

So, it looks like we’re going to have to stand by and watch while Sessions “implodes” or “explodes” the system. Then, folks might take notice. Because the collapse of the U.S. Immigration Courts is going to take a big chunk of the Article III Federal Judiciary with it.

Why? Because approximately 80% of the administrative review petitions in the U.S. Courts of Appeals are generated by the BIA. That’s over 10% of the total caseload. And, in Circuits like the 9th Circuit, it’s a much higher percentage.

The U.S. Immigration Judges will continue to be treated like “assembly line workers” and due process will be further short-shrifted in the “pedal faster” atmosphere intentionally created by Sessions and McHenry. The BIA, in turn, will be pressured to further “rubber stamp” the results as long as they are removal orders. The U.S. Courts of Appeals, and in some cases the U.S. District Courts, are going to be left to clean up the mess created by Sessions & co.

We need an independent Article I U.S. Immigration Court with competent, unbiased judicial administration focused on insuring individuals’ Due Process now! We’re ignoring the obvious at our country’s peril!

PWS

01-20-18

ANOTHER DUE PROCESS ASYLUM VICTORY FOR THE GW IMMIGRATION CLINIC AT THE ARLINGTON IMMIGRATION COURT!

Professor Benitez reports:

“Friends,

Please join me in congratulating Immigration Clinic student-attorney Solangel González, who this afternoon won a grant of asylum for her clients, N-R and her two minor children, from El Salvador. The ICE trial attorney waived appeal so the decision is final. The immigration judge (IJ), Quynh Vu Bain, commenced today’s proceeding in the above manner.

N-R was threatened by the MS gang in her country because of her familial relationship with her uncle, who was murdered by the gang. After her uncle’s body was discovered, N-R called the police. While discussing the murder with a police officer a gang member walked by and saw the discussion. During the discussion, however, the police officer told N-R that it was best if she dropped the matter because, if they found out she filed a complaint, the gang could kill her kids. N-R later was told by a gang associate that she and her kids would be killed if she pursued the complaint. Out of caution, N-R moved with her children to another part of El Salvador, but the gang continued to look for her. Finally, N-R and her children fled to the USA. N-R testified that the gang members continue to look for her.

Congratulations also to Alyssa Currier, Karoline Núñez, Chen Liang, and Jonathan Bialosky, who previously worked on this case.

NOTE: While waiting in the lobby for her case to be called, Solangel escorted a respondent, who didn’t know where to go and who didn’t know who her lawyer was, to her assigned court room, thus avoiding a potential in absentia removal order.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…”

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Congrats to all involved! It also illustrates one of the points that I repeatedly make. With good representation, adequate time to prepare, a good judge who knows asylum law and takes individuals’ rights seriously, and a conscientious Assistant Chief Counsel representing the DHS, many of the Central American asylum claims are very “winnable” under the law. That’s why detaining individuals in poor conditions in locations where competent pro bono counsel is not readily available and cases are being “raced through” to minimize detention expenses and maximize removal statistics is so unfair and such an obvious violation of due process.

Also, this is the Judge Quynh Vu Bain that I remember as a former colleague at the Arlington Immigration Court: fair, scholarly, hard-working, kind, and Due Process oriented. My Georgetown Law student observers remarked on how welcoming she was and how she went out of-her way to make sure that everyone in the courtroom understood what was happening and why.

Despite Sessions’s disdain for individual rights of migrants (particularly vulnerable asylum seekers) and Due Process, and his fanatic emphasis on using the U.S. Immigration Courts as mere tools of DHS enforcement, there are many U.S. immigration Judges out there working conscientiously every day to provide fairness and Due Process to vulnerable migrants while laboring under some of the highest stress levels and worst working conditions faced by any judges in America!

America needs an independent Article I United States Immigration Court dedicated to guaranteeing “fairness and due process for all” now!

DUE PROCESS FOREVER!

PWS

01-19-18

U.S. IMMIGRATION JUDGE RODGER P. HARRIS REPORTEDLY STANDS TALL FOR DUE PROCESS AS NEW COURT SUIT ALLEGES THAT HIS COLLEAGUES ON THE IMMIGRATION BENCH IN CHARLOTTE, N.C. ARE SCOFFLAWS WHO FAIL TO HOLD LEGALLY REQUIRED BOND HEARINGS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/18/lawsuit-challenges-immigration-judges-who-refuse-to-hold-bond-hearings-palacios-v-sessions.aspx?Redirected=true

From LexisNexis Immigration Community online:

“Lawsuit Challenges Immigration Judges Who Refuse to Hold Bond Hearings: Palacios v. Sessions

AIC, Jan. 17, 2018 –

“The government cannot lock people up without giving them access to prompt bond hearings and an opportunity to show that they should be released for the months or years that it takes to adjudicate their removal cases. This lawsuit challenges the actions of immigration judges in Charlotte, North Carolina who have done just that: refused to conduct bond hearings for people who properly file bond motions with the Charlotte Immigration Court. The case was filed as a class action in the U.S. District Court for the Western District of North Carolina by the American Immigration Council, the CAIR Coalition, and Cauley Forsythe Law Group.”

Complaint

Brief in Support of Motion for Class Certification”

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Go on over to LexisNexis Immigration Community at the link for the complete story.

Check out paragraph 6 of the Complaint which contrasts the conduct of Judge Harris, who holds bond hearing in accordance with the law and established procedures, and the alleged conduct of his judicial colleagues in Charlotte.

Not surprising to me! Judge Harris was my colleague for years at the U.S. Immigration Court in Arlington Virginia where he had a reputation for scrupulously following the law and providing full due process to all who came before him. Just like a U.S. Immigration Judge is supposed to do.

On the other hand, prior to Judge Harris’s arrival, the Charlotte Immigration Court had a reputation among the private bar, commentators, and the press as a place where due process was often given short shrift, particularly in asylum cases.

Of course, these are merely allegations at this time. We’ll see what happens as the case progresses in Federal District Court.

While Sessions, McHenry, and the “Falls Church Crew” are screwing around with imaginary “goals and timetables’ — untethered to reality in a system with a 660,000 backlog and no real plan for resolving it — these are the real due process problems that are festering in the U.S. Immigration Courts and denying individuals their legal right to due process on a regular basis. Where’s the concern from “on high” with a court system that’s failing in its mission to provide due process to individuals under our Constitution? Obviously, the problem starts with a “Scofflaw Attorney General” who cares more about expediting removals and a White Nationalist immigration enforcement agenda than he does about the Constitution, Due Process, and the integrity of the U.S. Immigration Court system.

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

PWS

01-18-18

SUPREMES TAKE ON “STOP TIME” ISSUE FOR CANCELLATION OF REMOVAL – TO RESOLVE “CIRCUIT SPLIT” — COULD AFFECT MANY THOUSANDS OF REMOVAL CASES – PEREIRA V. SESSIONS!

Here’s what SCOTUS Blog has to say about the issue:

“Issue: Whether, to trigger the stop-time rule by serving a “notice to appear,” the government must “specify” the items listed in the definition of a “notice to appear,” including “[t]he time and place at which the proceedings will be held.”

Here’s a link to the SCOTUS Blog material on Cir:

http://www.scotusblog.com/case-files/cases/pereira-v-sessions/

Here’s a link to the First Circuit’s decision in Pereira v. Sessions, written by Judge Lipez which upheld the BIA’s ruling under so-called “Chevron deference:”

http://media.ca1.uscourts.gov/pdf.opinions/16-1033P-01A.pdf

And, here’s a “key quote” from Judge Lipez’s decision in Pereira that explains the issue a little more detail:

“The Immigration and Nationality Act (“INA”) gives the Attorney General discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. 8 U.S.C. § 1229b(b)(1). Under the “stop-time” rule, the alien’s period of continuous physical presence ends “when the alien is served a notice to appear under section 1229(a)” of the INA. Id. § 1229b(d)(1). In this case, we must decide whether a notice to appear that does not contain the date and time of the alien’s initial hearing is nonetheless effective to end the alien’s period of continuous physical presence. The Board of Immigration Appeals (“BIA”) answered this question affirmatively in Matter of Camarillo, 25 I. & N. Dec. 644 (B.I.A. 2011). The BIA applied that rule in this case.

Joining the majority of circuit courts to address this issue, we conclude that the BIA’s decision in Camarillo is entitled to Chevron deference. We deny the petition for review.”

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So, with the 1st Circuit joining the 2nd, 4th, 6th, 7th, and 9th Circuits in upholding Matter of Camarillo, 25 I&N Dec. 644 (BIA 2011); only the 3rd Circuit rejecting the BIA’s interpretation (Orozco- Velasquez v. Att’y Gen. United States, 817 F.3d 78, 81-82 (3d Cir. 2016)); and what is generally perceived as a “conservative leaning” Supreme Court, looks like a “slam dunk” for the Government, right? Not so fast!

On a question of statutory interpretation like this, I could definitely see some of the more conservative “strict constructionist” Justices teaming up with the “liberals” to reject the BIA’s interpretation by invoking the “plain meaning” rule of statutory construction to overcome “Chevron deference.” Indeed, quite interestingly, as I have noted in prior blogs, Justice Neil Gorsuch was an outspoken critic of Chevron while on the Tenth Circuit. Read his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) if you have any doubts! Here’s a link to that opinion: https://www.ca10.uscourts.gov/opinions/14/14-9585.pdf

So, I wouldn’t assume at this point that Justice Gorsuch will be a “shill” or “pushover” for the Administration on all immigration issues, even if Trump thinks that’s the type of “loyalty” all his judicial appointments owe him. Actually, the oath of office that Federal Judges take requires them to uphold the Constitution of the United States, not the views and positions of President Trump, Attorney General Jeff Sessions, DHS Secretary Kristjen Nielsen, or anybody else of any importance whatsoever. That’s what real “judicial independence” (as opposed to the “captive” Immigration Judiciary) is all about!

And, you might ask what’s the “big deal” about this case? After all, even if the Supremes agree with the petitioner and the Third Circuit that the notice was defective, the BIA and DHS could easily cure the “problem” simply by specifying a “time, place, and date” for the Immigration Court hearing on the original Notice to Appear. Indeed, when I joined the Arlington Immigration Court in 2003 such a system, called “Interactive Scheduling” was in effect. But, like much else at EOIR it appears to have run into problems and been largely abandoned as the dockets mushroomed out of control. Many (not all) things about the administration of the Immigration Courts actually moved backward during my 13 year tenure in Arlington.

But, if the original Notice to Appear were held to be ineffective, then it would not serve to “Stop Time” for the 10 year period of “continuous physical presence” required to apply for the relief of “Cancellation of Removal.” This, in turn, would make thousands of individuals now in Immigration Court proceedings, perhaps tens of thousands, eligible to apply for Cancellation. And, it likely would require the reopening of thousands of already completed cases where the respondent was denied Cancellation of Removal based solely on the “Stop Time” rule. So, that’s why it’s worth the Supremes’ time to resolve this conflict among the lower Federal Courts.

PWS

01-13-18

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