"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Divide and conquer is a good military strategy but a bad judicial one. Judges must consider how related facts weave to- gether into a narrative.
Chinese officials caught Cha Liang practicing his faith, so they beat, jailed, and then threatened him. When he sought asy- lum, the Board of Immigration Appeals minimized the threats and physical abuse as discrete incidents. But Liang’s twenty- minute beating and fifteen days in jail made the later threats more menacing. Because the Board should not have ignored this context, we will grant the petition and remand.
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Perhaps unwittingly, Judge Bibas’s use of a military analogy for EOIR “judging” is very, very apt! After four years of corrupt, White Nationalist, Stephen Miller inspired “leadership” and “judicial selections,” far, far too many judges and others at today’s EOIR view immigrants and their attorneys as “the enemy.” By contrast, they think of their “partners” at DHS as their “comrades in arms” against Stephen Miller’s fabricated “alien invasion” — a euphemism for “replacement theory” and other racist tropes that were seldom far below the surface of Trump-era immigration policies and actions.
It’s tempting to blame this entire mess on theTrump regime. But, sadly, manifestations of this problem were present well before 2017.
I remember an Immigration Judge Conference where, strangely, a recently appointed IJ, a former government prosecutor, was given an “instructor slot” at small group training. This Judge proceeded to repeatedly refer to the the DHS as “we” and the respondents and their lawyers as “them” as he enthusiastically described Government litigation “victories” while ignoring or downplaying Circuit Court decisions that had found serious flaws in EOIR judging and DHS legal positions.
That individual went on to a “judicial career” at EOIR that consistently demonstrated a disturbing and inappropriate inability to view those humans coming before the Immigration Court and their lawyers as anything other than “the enemy!” So, the ethical, cultural, and quality control problems at EOIR are very deep-seated.
Remember, this is a broken agency that once, but no more, was supposed to stand for “through teamwork and innovation, become the world’s best administrative tribunals guaranteeing fairness and due process for all.”
As the recent “John Gruden Episode” in the NFL shows, “corrosive culture” remains a huge problem in professional football. Similarly, EOIR’s “culture of denial with a heavily dose of racism, misogyny, and xenophobia” remains every bit as much of a problem as those plaguing the NFL. Disingenuously “minimizing threats” to asylum seekers, as in this case, is “business as usual” at Garland’s anti-immigrant, anti-asylum EOIR.
While the response of the NFL’s leadership has obviously been not fully effective, it’s still much better than Garland’s “what me worry, hear nothing, see nothing” approach to the crippling problems at his dysfunctional EOIR.
Garland’s inept approach to the ongoing due process disaster at his EOIR has been perplexing, to say the least! PHOTO: Wikipedia Commons
Gruden actually was promptly forced out when the full extent of his misconduct finally surfaced. By contrast, with overwhelming public evidence of systemic failure, Garland has catastrophically failed to replace the problematic judges and inept senior leaders at EOIR with better-qualified, progressive, practical scholar-expert judges unswervingly committed to due process, fundamental fairness, and equal justice!
Although not cited by the 3rd Circuit, the BIA and the IJ also ignored the leading BIA precedent of Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) (Panel: Hurwitz, Rosenberg, Schmidt) on the importance of considering harm cumulatively.
The concurring opinion by Judges Jordan and Ambro on past persecution as a “mixed question of fact and law” subject to a “two-step review process” is also well worth a read, particularly for those practicing in the 3rd Cir.
Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com“Miller’s Mob” is still alive and well at Garland’s EOIR. Legal asylum seekers — not so well, not so alive! https://www.flickr.com/photos/rasputin243/ Creative Commons LicenseBIA Asylum Panel In Action — At Garland’s BIA, a “Miller-trained and inspired” Asylum Panel can, and does, kill dozens of unarmed asylum seekers in a single day to “make quota.” Despite being thoroughly discredited for judicial use, Garland has inexplicably continued due-process-denying, corner-cutting, quality-killing “production quotas” for his assembly line worker/judges in Immigration Courts! Albrecht Dürer, Public domain, via Wikimedia Commons.
Dan Kowalski reports for LexisNexis Immigration Community:
“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”
Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.
Ronald D. Richey, Esquire Rockville, MD
Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:
On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”
But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.
No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.
Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”
The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!
“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!
While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!
Just look the other way, it’s the Garland way! “Justice” Star Chamber Style
Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?
🏴☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!
Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!
Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.
It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!
More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!
And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”
I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — As asylum seekers and their fearless advocates suffer and the Immigration “Courts” disintegrate, there appears to be no end to “Garland’s Miller-Lite Happy Hour” @ DOJ!
Dan Kowalski Reports for LexisNexis Immigration Community:
“Daljinder Singh applied for asylum and protection under the Convention Against Torture, claiming that he feared persecution in India based on his membership in the Akali Dal Amritsar (“Mann Party”), a Sikh-dominated political party. The presiding immigration judge (“IJ”) denied his application, finding Singh not credible. The Board of Immigration Appeals (“BIA”) dismissed Singh’s appeal. Singh filed a petition for review and moved for a stay of removal. We granted Singh an emergency stay of removal pending further order. We now grant Singh a stay pending review of his petition. … Singh raises two principal arguments in his petition for review. First, he contends that the IJ’s near total denial rate for asylum applications reflected a bias and violated Singh’s due process rights. Second, he challenges the BIA’s conclusion that the IJ adhered to the procedural safeguards the BIA adopted in Matter of R-K-K-, applicable when an IJ relies on inter-proceeding similarities for an adverse credibility determination. We conclude that Singh has made the requisite showing that he is likely to succeed on the merits of both claims. … The IJ here [Agnelis Reese] denied relief to asylum seekers in 203 of the 204 cases she presided over from 2014 to 2019, a denial rate of 99.5%. … … Given the accounts of multiple witnesses to the attacks on Singh, medical records, images of the attacks on his father, and witness testimony regarding the BJP’s continued pursuit of Singh, Singh has made the requisite showing that the totality of the evidence does not support the IJ’s credibility determination. The appearance of bias painted by the denial of 203 of 204 asylum applications and the IJ’s adverse-credibility determination, informed by her noncompliance with the procedural safeguards of Matter of R-K-K-, are here interlaced. We do not suggest that a high percentage of denials is sufficient to avoid an IJ’s otherwise valid credibility determinations. Indeed, patterns in applicants’ presentations are likely and may necessarily result in a higher denial rate if the shared basis for relief is inadequate. But here, the incredibly high denial rate, when coupled with the IJ’s noncompliance with Matter of R-K-K-, presents a substantial likelihood that Singh will be entitled to relief upon full consideration by a merits panel. … Accordingly, we GRANT Singh’s motion for a stay pending review of his petition.”
So, if the 5th Circuit and a “reasonable man” could figure out this isn’t “justice,” by any stretch of the imagination, why on earth 1) can’t Garland do likewise, and 2) does he continue to have his lawyers defend this disgraceful nonsense and waste of taxpayer money? Reese has previously been “featured” in Courtside for her “Kafkaesque” approach to “justice” for asylum seekers. Several years ago, I spoke at a Louisiana State Bar CLE event where attorney after attorney shared their “horror stories” about Reese. Yet, she managed to last for more than two decades over four different Administrations, two Democratic and two Republican.
Thankfully for American justice, Judge Reese retired in 2020, after more than two decades of abusing asylum seekers and disgracing the Immigration Courts! But, she was by no means the only unqualified Immigration Judge who helped create disgraceful and illegal “Asylum Free Zones” in Immigration Courtrooms throughout America.
A number of members of the “Asylum Denial Club” remain on the bench @ EOIR. Outrageously,some of them were even “rewarded” with appointments to the BIA by the previous Administration!
Rather than swiftly moving to replace the BiA and then commencing a thorough, long overdue “housecleaning” of unqualified judges and managers at EOIR, Garland, Monaco, Gupta, and Clarke have dawdled as asylum seekers continue to be abused, mistreated, denied due process, and justice mocked at EOIR. A civil rights/racial injustice/due process crisis of gargantuan proportions is going on right under their noses, and they have done very little to acknowledge or address it!
Not to mention that under Garland’s lackadaisical leadership the Immigration Courts continue to build unnecessary backlog at “Trumpian” rates. It’s not like experts haven’t brought the grotesque injustices and defects of EOIR to the attention of the Biden Administration and Garland!
One might ask just what Garland and his top lieutenants are doing to earn their pay? The answer is “not much” to date from a progressive standpoint!
Experts and advocates should be “raising hell” with the Biden Administration about the deficient due process and racial justice leadership at the DOJ! American justice deserves better! Much better!
And, the other Circuit Courts (particularly the 11th Circuit) that have looked the other way at the biased decision-making and other unconstitutional travesties of justice going on in Immigration Court on a regular basis don’t look so good either!
Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?” Official White House Photo Public RealmDan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:
These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”
Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.
Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮
Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.
It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:
Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR –NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.
So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!
Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!
Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of ColorAbused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Is this Judge Merrick Garland’s Vision Of Justice For Refugee Women @ EOIR? If not, what’s he doing about it? Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsJamie Gorelick American Lawyer & Public Servant PHOTO: Creative CommonsLayli Miller-Muro Founder & Executive Director, Tahirih Justice Center PHOTO: Creative Commons
Jamie Gorelick is a partner at Wilmer Hale. Layli Miller-Muro is founder and CEO of the Tahirih Justice Center, a nonprofit that serves immigrant survivors of gender-based violence. Both were involved in Fauziya Kassindja’s asylum case in 1996: Gorelick was deputy attorney general during the Clinton administration and Miller-Muro was Kassindja’s student legal counsel, representing her in immigration court and at the Board of Immigration Appeals.
With the issue of migration in the news again, a glaring omission in U.S. asylum law should get more attention: The statute does not name gender as a possible ground for protection.
To be granted asylum in the United States, an applicant must be facing persecution by their government or someone that government cannot or will not control. The applicant must show that the persecution is on account of race, religion, nationality, political opinion or membership in “a particular social group.” Persecution on account of gender is not included.
This makes sense when considering that the global treaty that obliges state parties to protect refugees was adopted 70 years ago, in 1951, when the legal rights of women were barely recognized. The treaty — called the Refugee Convention — says that countries have an obligation to protect those who have no choice but to flee or risk death in the face of injustice.
It is unsurprising that the needs of women facing persecution were not considered in 1951. It is also not surprising — though it is disappointing — that Congress wrote this outdated framework into the Refugee Act of 1980.
In the mid-1990s, some light was shined on this problem. Fauziya Kassindja, a 17-year-old from Togo, sought protection both from forced polygamous marriage to a much older man and from female genital mutilation. She was granted asylum after proving that she was a member of a “particular social group” — and thus covered by the Refugee Act. We were both involved in this case, which helped to crack open the door for women to argue that gender-based asylum claims should be granted under the “particular social group” category in the statute.
But progress for women has been slow and painful under a statute that does not explicitly recognize gender-based persecution. It took 14 years for the United States to grant asylum to a Guatemalan woman, Rodi Alvarado, who endured unspeakable brutalization by her husband, a former soldier. Regulations proffered by then-Attorney General Janet Reno in 2000 to protect women under the social-group category were never finalized, leaving women in the lurch. So much variance exists in the likelihood of success from court to court that filing a claim can feel like playing Russian roulette.
. . . .
This situation has been made much worse in recent years. Under Attorney General Jeff Sessions, decades of progress were nearly wiped out by the stroke of a pen. Because the highest immigration court is part of the Justice Department, he was able to single-handedly reverse key legal precedents favorable to women’s claims and issue guidance to judges limiting gender-based asylum. As a result of these changes, the safety of many immigrant women hangs by a thread. The Refugee Act urgently needs to be changed to clearly protect women who would otherwise meet the stringent requirements for asylum.
. . . .
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Read the full op-ed at the link.
The Rest of the Story
I wrote the decision granting asylum in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Jamie Gorelick was the Deputy Attorney General during part of my tenure (1995-2001) as Chair of the BIA. Layli Miller-Muro worked for me as a BIA Attorney-Advisor for a time.
Following Kasinga, some of my colleagues and I put our careers on the line to vindicate the statutory, constitutional, and human rights of refugee women who suffered egregious persecution in the form of domestic violence. One of those cases was Rodi Alvarado (a/k/a “Ms. R-A-“), where we dissented from our majority colleagues’ misguided denial of protection to her following grotesque, clearly gender-based persecution. Matter of R-A-, 22 I&N Dec. 906, 928 (BIA 1999) (Guendelsberger,Board Member, dissenting with Schmidt, Chair, Villageliu, Rosenberg, and Moscato, Board Members). Alvarado had properly been granted asylum by an Immigration Judge, building on Kasinga, before being unjustly stripped of protection by the majority of our colleagues.
The incorrect decision in R-A- was vacated by Attorney General Reno. Finally, after a 14-year struggle, Ms. Alvarado was granted asylum in an unpublished, unappealed decision based largely on the rationale of the dissenters. In the meantime, the “gang of four” dissenters (minus Moscato) had been exiled from the BIA by Attorney General John Ashcroft, assisted by his sidekick, Kris Kobach (the infamous “Ashcroft Purge” @ the BIA).
In 2014, in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the BIA finally recognized domestic violence based on gender as a form of persecution. They did so without acknowledging the pioneering work of the R-A- dissenters 15 years earlier. By this time, domestic violence as a basis for asylum had become so well established that it wasn’t even contested by the DHS (although, curiously, the case was remanded by the BIA for additional findings on issues that were beyond reasonable dispute)!
In the meantime, at the Arlington Immigration Court, my colleagues and I had consistently granted domestic violence asylum cases based on a DHS policy position known as the “Martin Memo,” after former INS General Counsel and later DHS Deputy General Counsel Professor David Martin (who, incidentally, argued the Kasinga case before the BIA in 1996 — famous gender-based asylum expert Professor Karen Musalo argued for Kasinga). Most of those grants were unappealed by DHS. Indeed, many were so compelling and well documented that DHS joined Respondents’ counsel in moving for asylum grants following brief testimony. These cases actually became staples on my “short docket,” promoting efficiency, fairness, and becoming one of the few “working parts” of the Immigration Courts.
Tahirih Justice Center, founded by, Layli Miller-Muro, was counsel in some of these cases and served as an essential resource and inspiration for attorneys preparing domestic violence cases. It also functioned as a training center for some of the “new all-stars” of the New Due Process Army. For a time, the progress in recognizing, documenting, and vindicating the rights and humanity of female asylum seekers, at least in the Arlington Immigration Court, was one of the few shining examples of the courts, DHS, and the private/NGO bar working cooperatively to improve the quality and efficiency of justice in Immigration Court. It should have been a model for all other courts!
Sadly, in 2018, Attorney General Jeff “Gonzo Apocalypto” Sessions, unilaterally intervened and undid two decades of progress for women refugees of color with his grossly incorrect and disingenuous decision in Matter of A-B-, 27 I&N Dec. 316 (BIA 2018), overruling Matter of A-R-C-G- on completely specious grounds while intentionally misconstruing the facts of record. Significantly, Sessions’s intervention was over the objection of DHS, which had expressed continuing agreement with the A-R-C-G- framework for deciding domestic violence cases.
“Hanging by a thread,” as stated by the op-ed, unfortunately vastly understates the war on the legal rights and humanity of asylum-seeking women, particularly targeting women at color, being carried out at EOIR today. This effort is led by a BIA that has long since lost its way, basically “weaponizing” the legal distortions and vicious, openly misogynist dicta set forth by Sessions in Matter of A-B- to dehumanize, degrade, and deport vulnerable refugee women.
In numerous cases, the BIA actually intervenes at ICE’s request to reverse proper grants by courageous and scholarly Immigration Judges below. It’s all about churning out final orders of removal as a deterrent –a vile, disgusting, perverted “philosophy” advanced by Sessions, Barr, and Whitaker, and not yet effectively rejected by Judge Garland.
Judge Merrick B. Garland Official White House Photo Public Realm
Judge Garland is in the job because he is not only an experienced DOJ senior executive, but a long-serving Federal Judge who was admired for his sense of justice. It shouldn’t take an army of “spear-carriers” and subordinates for a true leader of Judge Garland’s experience to seize control of the situation and start getting the “ship of justice” sailing in the right direction. Judge Garland’s political and bureaucratic travails are of no moment to, and pale in comparison with, the additional, unconscionable abuse and “Dred Scottification” being heaped on refugee women and their courageous representatives by his dysfunctional and unconstitutional “star chamber courts.”
“Refugee women get ‘special treatment’ in accordance with the ‘traditional values’ applied to their cases in Judge Garland’s Immigration Courts!”
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Please, Pick Up The Phone & Your Pen, Judge Garland!
Not rocket science, Judge Garland! All it takes is six calls and a signature to start ending misogyny at EOIR and achieving racial justice in the America.
First three calls: Call Judge Dana Marks (SF), Judge Noel Brennan (NYC), Judge Amiena Khan (Newark) and tell them that they are detailed to the positions of Acting EOIR Director, Acting BIA Chair, and Acting Chief Immigration Judge, respectively. (The first position is vacant and the other two positions are filled by Senior Executives subject to transfer at the AG’s discretion. The current Acting Director already has an SES position to which she could return, or she could be re-installed as the
EOIR General Counsel, a job for which she is well-qualified.)
Fourth call: Call the the head of of the Justice Management Division (JMD). Ask her/him to find suitable DOJ placements for the two current incumbents mentioned above and all current members of the BIA (all of whom are either SES or “Management Officials” subject to transfer at the AG’s discretion) in other DOJ positions at the same pay level where they can do no further damage to our justice system. Ask him/her to arrange for the temporary appointment of former DOJ employees Jamie Gorelick and Layli Miller-Muro as Acting Appellate Judges at the BIA.
Calls five and six: Call Jamie Gorelick and Layli Miller-Muro. Thank them, tell them you agree with their Post op-ed, and ask (or beg) them to come to DOJ on a temporary basis to help Judges Marks, Brennan, and Khan solve the current problems with asylum adjudications and take the necessary actions to get EOIR functioning as a legitimate, independent, due-process-oriented court system. In other words, turn their cogent op-ed into a “real life action plan” for restoring due process, humanity, and common sense to the Immigration Courts, with a focus on the now totally unprofessional, wrong-headed mis-adjudication of asylum cases.
Finally, sign this order:
All precedent decisions issued to EOIR by former Attorneys General Sessions and Barr, and former Acting Attorneys General Whitaker and Wilkinson, and all their pending actions certifying cases to themselves are hereby vacated. All cases shall be returned to the Board of Immigration Appeals (“BIA”) for reconsideration. In the reconsideration process, the BIA shall, among other things, honor the letter and spirit of these binding precedents:
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996)
In the reconsideration process the BIA shall also be guided by the principle of “through teamwork, innovation, and best practices, become the world’s best tribunals, guaranteeing fairness and due process for all.”
See, it’s not that complicated. By the end of this year, women will get the protection to which they legally are entitled from the Immigration Courts. We all will see dramatic changes that will lead the way toward “equal justice for all’” in America and become a blueprint for the Immigration Courts to fulfill the above-stated principle.
It would also be a far better legacy for Judge Garland to be viewed as the “father of the fair, independent, expert Immigration Courts,” than to be remembered as running the most dysfunctional, unfair, and misogynistic court system in America, his current path. And, as an extra added bonus, Judge Garland, you will have a great start on building a premier source of “battle tested,” due-process-oriented, progressive jurists for future Article III appointments!
It’s a “win-win-win” that you no longer can afford to ignore, Your Honor!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Nothing to see here, fellas, just the private dynamics of a personal relationship! Tough noogies, baby! You should have been born a man. It’s your own fault! Ha! Mercy and compassion? Those aren’t in any of our precedents, are they?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons“Expert, what expert? We’re the experts! That is, in misogyny, abuse of asylum seekers of color, and specious legal reasoning. And, Garland is letting us get away with it! Whew, for a moment I thought he might have been a ‘real’ judge, but seems he’s just like us. Think I’ll jump for joy! Four more years of unbridled abuse of the most vulnerable and helpless, and I’ll be eligible to retire! Shooting down female asylum seekers for no good reason is like shooting fish in a barrel, just like Jeffy Gonzo and Billy the Bigot taught us! Wonder how many we can kill this year? Happy hunting! But, let’s stay out of the 9th Circuit. It’s dangerous territory. I hear the 5th Circuit loves misogynists and White Nationalists!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
PANEL: Susan P. Graber, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.
OPINION BY: Judge Graber
CONCURRING OPINION: Judge Paez
COUNSEL: Elaine J. Goldenberg (argued), Munger Tolles & Olson LLP, Washington, D.C.; Sara A. McDermott, Munger Tolles & Olson LLP, Los Angeles, California; Richard Caldarone, Julie Carpenter, and Rachel Sheridan, Tahirih Justice Center, Falls Church, Virginia; for Petitioner.
Timothy Bo Stanton (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Office of Immigration
ROGRIGUEZ TORNES V. GARLAND 5
Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Betsey Boutelle, DLA Piper LLP (US), San Diego, California; Anthony Todaro, Jeffrey DeGroot, and Lianna Bash, DLA Piper LLP (US), Seattle, Washington; for Amicus Curiae National Immigrant Women’s Advocacy Project.
SUMMARY BY COURT STAFF:
Immigration
The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion.
The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution.
Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ROGRIGUEZ TORNES V. GARLAND 3
political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal.
Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to
4 ROGRIGUEZ TORNES V. GARLAND
Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution.
The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal.
Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
CONCURRING OPINION:
PAEZ, Circuit Judge, concurring:
I join Judge Graber’s fine opinion in full. I write separately on a point the court’s opinion does not address. In rejecting Ms. Rodriguez Tornes’s political opinion claim, the BIA suggests that the presence of a “personal relationship” motivation for intimate partner violence implies that there were no intersectional or additional bases for the violence Ms. Rodriguez Tornes experienced. The court’s opinion thoroughly documents the record evidence, which the BIA ignored, demonstrating how Ms. Rodriguez Tornes was targeted for violence by her domestic partners on account of her feminist political opinion. The BIA, however, also ignored extensive record evidence from expert witness Prof. Nancy Lemon, a leading authority on domestic violence, that directly rejects the BIA’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”
In contrast to the BIA’s “personal relationship” view of domestic violence,1 Prof. Lemon draws on more than three
1 The BIA cites Matter of A-B-, 27 I&N Dec. 316, 338–39 (A.G. 2018) as the basis for its assumption.
22 ROGRIGUEZ TORNES V. GARLAND
decades of research, writing, legal representation, and lawmaking to explain that “the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence.” She analyzes data from the U.S. Department of Justice, Bureau of Justice Statistics and studies from leading medical and social science publications to highlight “compelling evidence that heterosexual domestic violence is, in significant part, motivated by bias against women and the belief that men are entitled to beat and control women.” Prof. Lemon summarizes cross-cultural studies within the United States and internationally that demonstrate “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners.”
In her report, which the IJ referenced in her decision, Prof. Lemon provides a lengthy examination of social science research exploring how particular behaviors exhibited by male abusers—including emotional abuse, sexual abuse, marital rape, economic abuse, blaming, guilt and using children—are each tied to social belief systems that “men are entitled to dominate and control women because the male sex is considered superior” and operate to “exploit the traditional socially constructed roles, identities, duties and status of women in intimate relationships.” In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, Prof. Lemon explains that “domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. . . . Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be
ROGRIGUEZ TORNES V. GARLAND 23
exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.”
The record evidence of Prof. Lemon’s rigorous expert analysis undermines the BIA’s unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of Prof. Lemon’s expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA’s outdated view of domestic violence as a quirk within a “personal relationship.”2 Thus, the BIA’s assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.
2 See e.g., Nina Rabin, At the Border Between Public and Private: U.S. Immigration Policy for Victims of Domestic Violence, 7 Law & Ethics Hum. Rts. 109, 111–12 (2013) (“Fifty years ago, domestic violence was widely understood to be a private matter, and the extent to which it was appropriate for the state to intervene was highly contested. Now, domestic violence shelters, state laws and policies specific to the prosecution of domestic violence crimes, and significant state and federal government support for efforts to eradicate domestic violence are all commonplace. Crucial to bringing about this shift in the state’s role vis-à- vis domestic violence victims has been the acknowledgment of the structural roots of domestic violence. When conceived of as a problem tied to gender subordination and pervasive inequality rather than interpersonal conflict, the violence at issue demands a state response.”); Violence Against Women: Victims of the System, 102d Cong., 63 (1991); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991); Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy, 105 Yale L.J. 2117 (1996); Leslye E. Orloff & Janice v. Kaguyutan, Offering A Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95 (2001); see generally Am. Br. of the National Immigrant Women’s Advocacy Project.
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Congrats to all counsel involved for the “good guys.”
Another completely disastrous performance by the BIA!
Bias, sloppiness, legal errors galore, misuse of the appeals process, dissing experts, ignoring evidence, lousy analysis, an ethically questionable remand attempt by OIL, almost every aspect of the unmitigated professional disaster at the BIA and the failed DOJ is on display in this truly terrible parody of justice. These fundamental defects are what has helped generate incredible backlogs that EOIR and DOJ are attempting to cover up and shift blame to the individuals they systematically malign.
This disgraceful muck heap 🤮 won’t be cleaned up by bogus “case processing requirements!” What this system needs is expertise, fairness, due process, quality control, common sense, and human decency — in huge doses! A complete professional makeover!
Among the many good things about the Circuit decision is that it basically limited the impact of the atrociously wrong Sessions “precedent” in Matter of A-B-, even while overlooking the obvious ethical errors in his maliciously biased dicta and the glaring overarching constitutional problem in his improper interference and participation in the quasi-judicial process. This should be Exhibit 1 in why this process needs to be removed from the DOJ, placed in an independent Article I Court, and a new, qualified Appellate Division with real judges — capable of fairly and efficiently adjudicating asylum cases — selected to replace the BIA.
One particularly cruel, senseless, and inane aspect of the BIA’s attempt to “snuff” the respondent’s asylum application: Because of the essentially uncontested CAT grant, she was going to be allowed to remain in the U.S. anyway! So, this was all about illegally depriving an abused refugee woman of color of her ability to get a green card, become eligible for citizenship, and obtain full legal and political rights in our society!
Compare the time and effort expended by the BIA in trying to deprive this woman of her human rights with the carelessness and sloppiness of their legal analysis. That’s what the racist-driven “any reason to deny” culture created by Sessions, Barr, and their toadies at EOIR does to our justice system!
Imagine how much different the “retail level” of American justice would look with real judges and professional administrators, committed to due process, fundamental fairness, and best practices, in charge! Amazingly, that’s what the “EOIR Vision” once was, before the forces of darkness, ignorance, and bias took over the system.
Think of how different the skewed asylum statistics would look if we honored, rather than mocked, our legal obligations to asylum seekers. Think of how many more individuals could fairly and efficiently be welcomed into our country at our borders and abroad in a well functioning system, staffed with professionals, that adhered to the rule of law. Think of how a better, more honest, and more professional Immigration Court could provide positive guidance on how to grant needed protection, rather than gushing forth an endless stream of bogus “how to deny” precedents based on racial and gender bias and specious reasoning.
Professor Nancy Lemon Hastings Law Photo: law.hastings.comProfessor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawBlaine Bookey Legal Director Center for Gender & Refugee Studies @ Hastings Law Photo: CGRS website
Obviously, experts like Professor Nancy Lemon, Professor Karen Musalo, and her colleague Blaine Bookey are the types of individuals who should be Appellate Judges at the BIA. The current BIA’s glaring lack of professional competence and its unconscionable abuse of vulnerable asylum seekers, particularly the institutional ignorance and shameless misogyny with which claims by women refugees are treated, has to be one of the darkest and most inexcusable chapters in modern American legal history!
Food for for thought:
How would an unrepresented individual, particularly one in detention or stuck on a street corner in Mexico, be able to prepare, document, and present a case like this to a biased court and then appeal successfully to the Circuit?
How is this system constitutional in any way, shape, or form?
How might the massive investment of resources, time, effort, and expertise in vindicating the legal and human rights of one individual in a broken system be redeployed to promote systemic fairness and efficiency in a court system that actually complied with constitutional due process?
And, we shouldn’t forget that the Biden Administration is still illegally killing off asylum seekers at the border with no due process at all! Cowardly inflicting human misery on the most vulnerable in violation of our Constitution, our laws, and our international obligations has become our “new national pastime!”
We might be averting our eyes from the slaughter now, but history will document and remember what the world’s richest nation did to our fellow humans seeking protection in their hour of direst need! No wonder we must dehumanize “the other” to go on with our daily lives. No wonder that racial and social justice remain elusive, unfulfilled concepts, throughout our society, in today’s “What’s in it for me” atmosphere promoted by many of our politicos!
Anybody remember the last time we interpreted the law or facts in favor of a human? https://www.flickr.com/photos/rasputin243/ Creative Commons License
“The question in this case is whether the categorical approach requires a petitioner seeking cancellation of removal to demonstrate both that the state offense he was convicted of is broader than the federal offense and that there is a realistic probability that the state actually prosecutes people for the conduct that makes the state offense broader than the federal offense. We conclude that it does not. … Because the BIA’s decision relied on a misinterpretation of the realistic probability inquiry, we grant the petition for review, vacate, and remand for further proceedings consistent with this opinion.”
Lastly, the government argues that we should defer to the decision by the Board of Immigration Appeals (“BIA”) in Matter of Zamora-Molina, 25 I. & N. Dec. 606, 611 (B.I.A. 2011), in which the BIA adopted the same interpretation as the Department of State. Even assuming, without deciding, that Chevron deference applies when one agency (the Department of State) seeks to rely on the interpretation of another agency (the Department of Justice), we agree with the district court and with the Ninth Circuit that Chevron deference does not apply here because “the intent of Congress is clear.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see also id. at 842–43 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); Tovar, 882 F.3d at 900 (declining to apply Chevron deference to Zamora-Molina because “traditional tools of statutory construction” and “the irrationality of the result sought by the government” combine to “demonstrate beyond any question that Congress had a clear intent on the question at issue”). As discussed above, the text, structure, and
33
legislative history of the CSPA conclusively show the “unambiguously expressed intent of Congress” to protect beneficiaries like Diaz. Chevron, 467 U.S. at 843.7
3) Ignoring Previous Circuit Ruling On Related Case — 10th Cir.
After we determined that conditions in China had materially worsened for Christians, Mr. Ni moved again for reopening. Despite our opinion in his wife’s case, the Board of Immigration Appeals concluded
2
again that Mr. Ni had failed to show a material change in country conditions.
This conclusion is unsupportable. Mr. Ni’s evidence of worsening
conditions in China largely mirrored his wife’s evidence, which had led us
to grant her petition for review. Mr. Ni’s evidence was even stronger than
his wife’s because China had recently adopted a regulatory crackdown on
practicing Christians. We thus grant Mr. Ni’s petition for review.
“To support his case for reopening, Mr. Lucaj submitted an affidavit complaining in particular about two events that occurred after his removal proceeding in 2006: The Socialist party took power in 2013, and then in 2019 the Socialists’ corruption and connections with organized crime deterred the opposition party from even participating in the 2019 elections. Mr. Lucaj provided, among other things, the State Department’s 2018 Human Rights Report on Albania, the Freedom House “Freedom in the World 2018” Report on Albania, and articles from 2018 and 2019 about corruption in Albania and the Socialist Party’s success in recent elections. We do not know whether those submissions show materially worsening conditions for Democratic Party members in Albania, however, because the BIA refused to compare those reports to available evidence of conditions from 2006, claiming that Mr. Lucaj had not “explained how the proffered . . . country condition documentation show[s] qualitatively different conditions from 2006.” Plainly, though, he did so by pointing out the two cited, post-2006 events as evidence of changed conditions. The BIA’s failure to assess whether those changes were sufficient was arbitrary and capricious. … Therefore, we reverse the decision by the BIA and remand Mr. Lucaj’s case so that the BIA can review available evidence to examine whether conditions for members of the Democratic Party in Albania have deteriorated since 2006 and, if so, whether Mr. Lucaj has established a prima facie case for relief.”
America and humanity deserve better from a supposed “expert tribunal” which actually functions more like a “denial factory” without much, if any, “quality control.” No wonder these guys are running an out of control, ever-expanding 1.3 million case backlog!
Denying continuances, not closing cases that belong at USCIS, rushed briefing, IJ’s “certifying” BIA remands to the Director (who should have no judicial role), dismissing applications for failure to fill in irrelevant blanks, raising fees, and a host of other nonsensical proposals that EOIR has had shot down by the Article III Courts recently won’t reduce the backlogs. They actually will make it worse, as have all the other “gimmicks” tried by EOIR to eradicate due process and dehumanize migrants over the past four years!
Who ever heard of lower court judges providing “quality control” for appellate judges, working through a bureaucrat who (at the time the proposal was supposedly “finalized”) had never presided over a case in Immigration Court? And, let’s remember, these are haphazardly selected trial judges, a decidedly non-diverse, non-representative group, whose own qualifications, expertise, judicial temperament, and training have been widely criticized by experts in the field.Few of today’s Immigration Judges and BIA Judges would be “household names” among immigration, human rights, and constitutional law experts and scholars!
The current mess is largely the result of Aimless Docket Reshuffling imposed on the Immigration Courts by unqualified politicos at the DOJ and their equally unqualified toadies at EOIR HQ. Also, DHS has more often than not ignored the realities of good docket management and the prudent exercise of prosecutorial discretion. It is not the fault of the vulnerable migrants and their lawyers victimized by this absurdly politicized, biased, and mal-administered system!
Restoration of justice at EOIR will require radical due process oriented changes starting with new, professional leadership from “practical scholars” in immigration and human rights as well as replacing BIA Judges with better qualified jurists selected from the ranks of those “practical scholars.” Quality control, expertise, competence, common sense, and human understanding are all lacking at today’s EOIR!
Determining Political Opinion: Problems and Solutions
Regarding political opinion, the refugee law scholar Atle Grahl-Madsen famously explained that refugee protection “is designed to suit the situation of common [people], not only that of philosophers…The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.”1 A recent decision of the U.S. Court of Appeals for the Second Circuit provides an opportunity to reflect on this premise.
In Zelaya-Moreno v. Wilkinson, a young man was targeted for recruitment by MS-13. On two occasions, Zelaya directly announced to the gang’s members his reason for refusing to join: because gangs were bad for his hometown and country. Both times, the gang members responded by beating him, fracturing his arm the second time. They also threatened to kill him if he continued to refuse to join. The questions raised are whether Zelaya’s instinctive, simply-worded response expressed a political opinion, and if so, did that opinion form part of the reason for the beatings and threat?
The Immigration Judge recognized Zelaya’s statement to the gang to be a political opinion for asylum purposes. However, the IJ wasn’t persuaded from the record that Zelaya’s opinion was why the gang beat him. As expressed by the IJ, the beatings were caused by “Zelaya’s refusal to join the gang, irrespective of the reasons.” It doesn’t seem that the IJ considered whether the gang members imputed a political opinion to the act of refusal per se.
On appeal, the BIA took a far more extreme position, stating that because gangs are not political organizations and their activities are not political in nature, “expressing an opinion against their group is not expressing a political opinion.” This happens to be a position that EOIR and DHS (in defiance of much circuit case law and expert opinion to the contrary) later sought to codify in regulations that fortunately remain enjoined at present.
The Second Circuit in Zelaya-Moreno rejected the Board’s narrow view of political opinion. In fact, the court only last year, in its decision in Hernandez-Chacon v. Barr, recognized the act of resisting rape by members of the very same gang in El Salvador as the expression of a feminist, anti-patriarchy political opinion. Significantly, the victim in that case hadn’t stated any opinion to the gang members; it was only years later in front of the immigration judge that she gave her reason for resisting as “because I have every right to.”
As it has done in other decisions, the Second Circuit emphasized the need for a “complex and contextual factual inquiry” in political opinion determinations. It conducted a survey of cases in which political opinion was found, and of others in which it wasn’t. Unfortunately, the majority upheld the decision that Zelaya had not expressed a political opinion to the MS-13 members, stating that “[s]o far as the record shows, his objection to them is not rooted in any sort of disagreement with the policies they seek to impose nor any ideology they espouse.”
“So far as the record shows” is critical. I haven’t seen the record in this case, but I believe it might serve to demonstrate that while Grahl-Madsen correctly assigned equal validity to the opinions of the commoner and the intellectual, in practice, claims brought by members of the former group often require assistance from the latter in persuading adjudicators of the political nature of their words or actions.
For example, in Hernandez-Chacon, context for the petitioner’s resistance was provided by the affidavit of a lawyer and human rights expert who was able to articulate the patriarchal gender bias in Salvadoran society from which a political opinion could be gleaned from the asylum-seeker’s act of resistance alone. In another decision cited by the court, Alvarez-Lagos v. Barr, the Fourth Circuit was able to rely on the explanation of two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.”
In Zelaya-Moreno, the dissenting judge (in an opinion worth reading) was able to draw a political inference from the facts alone. It seemed that the two judges in the majority required more. But in finding the statements or actions of an applicant alone to be insufficient, is our present system of refugee protection genuinely designed to suit the situation of common people as well as philosophers?
In the view of the dissenting judge, yes. In that judge’s words, Zelaya “sought refuge here after standing up to MS members, refusing their demands that he join them, and informing them that he did not support them and considered them a blight on his native El Salvador. Our asylum laws protect individuals like Zelaya-Moreno who face persecution for such politically courageous stands.”
But in the view of the majority, Zelaya had expressed nothing “more than the generalized statement ‘gangs are bad.’ Thus, we cannot conclude that Zelaya holds a political opinion within the meaning of the statute, and therefore that the BIA erred in concluding that he was not eligible for asylum on this ground.” Would additional documentation providing the complex, contextual analysis the court mentioned earlier in its decision have delivered the two judges in the majority to the place already reached by their dissenting colleague?
The United Nations High Commissioner on Refugees is a good reference source on such issues. In its Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, UNHCR stated at para. 45 that in its view, “political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.” It continued at para. 47 that powerful gangs such as MS-13 may exercise de facto power in certain areas, and their activities and those of certain State agents may be closely intertwined. At para. 50, UNHCR stated that “rejecting a recruitment attempt may convey anti-gang sentiments as clearly as an opinion expressed in a more traditional political manner by, for instance, vocalizing criticism of gangs in public meetings or campaigns.” And at para. 51, UNHCR added that “[p]olitical opinion can also be imputed to the applicant by the gang without the applicant taking any action or making a particular statement him/herself. A refusal to give in to the demands of a gang is viewed by gangs as an act of betrayal, and gangs typically impute anti-gang sentiment to the victim whether or not s/he voices actual gang opposition.”
Had this document been included in the record, would it have been enough to persuade the majority that the BIA had erred in rejecting Zelaya’s claim that he was targeted on account of his political opinion? If so, how many pro se asylum applicants would understand the need to supplement their claims to provide this context, or know what type of document would be sufficient, or how to find it?
The Seventh Circuit had foreseen this problem 15 years ago. In a 2006 decision, Banks v. Gonzales, the court opined that Immigration Court needs its own country experts, who would operate much as vocational experts do in disability hearings before the Social Security Administration’s judges. In my opinion, an alternative approach would be for EOIR to follow the example of the Immigration and Refugee Board of Canada, which maintains National Documentation Packages that are referenced in all cases by adjudicators of refugee claims.
During my time in government, I oversaw the creation of country condition pages on EOIR’s Virtual Law Library, which were built, and continue to be updated, by EOIR’s Law Library staff. However, EOIR did not see fit to make its contents part of the records of hearing in asylum cases. It is for this reason that UNHCR’s Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador, which contains much of the same language as the Guidance Note quoted above, and which expresses the specific conclusion that “persons perceived by a gang as contravening its rules or resisting its authority may be in need of international refugee protection on the grounds of their (imputed) political opinion,”2 is found on EOIR’s own website on the country page for “El Salvador,” yet wasn’t even considered in Zelaya-Moreno.
Considering the growing number of pro se applicants, the lack of legal resources available to those held in remote detention facilities, and the short time frame to prepare for hearings in certain categories of cases, I can’t see why the EOIR country pages should not be made part of the hearing record here as in Canada. It’s possible that such a policy would have led to a different result in Zelaya.
Furthermore, the BIA hears plenty of cases involving expert opinions supporting the conclusion that those resisting gangs such as MS-13 were harmed on account of their political opinion. Issuing precedent opinions recognizing the context that politicizes statements and actions such as Zelaya’s would result in much greater efficiency, consistency, and fairness in Immigration Court and Asylum Office adjudications.
Realistically, I harbor no illusions that the recent change in administration will bring about such enlightened changes to asylum adjudication anytime soon. But we must still continue to argue for such change. As the dissenting opinion in Zelaya stated in its conclusion: “[w]hile it may be too late for Zelaya-Moreno, the BIA and the Department of Justice can right this wrong for future asylum seekers. I urge them to reconsider their approach to anti-gang political opinion cases to ensure those who stand up to fearsome dangers are welcomed into this country rather than forced back to face torture and death.” As noted above, it wouldn’t take much effort on EOIR’s part to accomplish this.
Notes:
Atle Grahl-Madsen, The Status of Refugees in International Law, 228, 251 (1966) (quoted in Deborah E. Anker, The Law of Asylum in the United States (2020 Ed.) § 5:17, fn. 3.
UNHCR Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador at 29-30.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Reprinted with permission.
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Truly wonderful, Jeffrey! One of your “best ever,” in my view! (And, they are all great, so that’s saying something.)
Imagine what could be achieved at the BIA with real judges, experts in asylum law, thoughtful, practical analysis, intellectual leadership, and inspiration to a fairer future, rather than the current Clown Show 🤡🦹🏿♂️ inventing bogus ways to ”get to no!”
As Jeffrey demonstrates, we could choose to protect rather than to reject. There has always been a tendency to do the latter at the DOJ; but, under White Nationalist nativist Jeff Sessions and his successors it has gone “hog wild” — rejection has been falsely portrayed as a “duty” rather than an extremely poor choice and an abdication of moral and legal responsibility!
Today’s BIA is basically incapable of problem solving. Time and again their strained, stilted anti-immigrant, anti-due-process, pro-worst-practices interpretations not only spell doom for those coming before them, but also promote inefficiency and backlogs in an already overwhelmed system. They also send messages of disdain and disrespect for the rights and humanity of people of color that redounds throughout our struggling U.S. Legal System.
I’ll keep saying it:Whatever positive message Judge Garland and his team at DOJ intend to send about racial justice will be fatally undermined as long as “Dred Scottification” and disdain for the due process rights of migrants is the “order of the day” at the one Federal Court System the DOJ runs: The U.S. Immigration Court! As long as EOIR is a “bad joke” the rest of Judge Garland’s reforms will fall flat!
The right judges 🧑🏽⚖️ at the BIA could turn this thing around! Remains to be seen if it will happen. But, it’s not rocket science. It just requires putting the right folks in charge, in place, and giving them the support and independence to engage in “creative problem solving.”
Judge Garland should be confirmed next week. And the confirmation hearings for Lisa Monaco (DAG) and Vanita Gupta (AAG) have been scheduled.
Some additional points:
The dissenter in the Second Circuit’s decision in Zelaya-Moreno v. Wilkinson is Judge Rosemary Pooler. Judge Pooler has had a long and distinguished career. Perhaps she would like to cap it off by becoming Chair of the BIA and leading by example;
Shows the importance of experts, which is probably why the BIA has gone out of its way to demean them and encourage IJs to ignore their evidence;
Jeffrey’s analysis supports my “Better BIA for a Better America” 🇺🇸program;
As Justice Sotomayor says: “It is not justice.” That’s my view on today’s EOIR!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Oh Boy! Three material mistakes in one asylum case! Do you think our superiors in the enforcement bureaucracy will give us extra credit on our ‘move ‘em out without due process quotas?’ Being a Deportation Judge sure is fun!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Arita-Deras v. Wilkinson, 4th Cir., 03-05-21, Published
PANEL:GREGORY, Chief Judge, and AGEE and KEENAN, Circuit Judges
OPINION BY: Judge Barbara Milano Keenan
KEY QUOTE:
Maria Del Refugio Arita-Deras, a native and citizen of Honduras, petitions for review of a final order of removal entered by the Board of Immigration Appeals (the Board).1 The Board affirmed an immigration judge’s (IJ) conclusion that Arita-Deras was not eligible for asylum, withholding of removal, or protection under the Convention Against Torture (CAT). The Board: (1) agreed with the IJ that Arita-Deras failed to support her claims with sufficient corroborating evidence; (2) found that Arita-Deras failed to prove that she suffered from past persecution because she had not been harmed physically; and (3) concluded that Arita-Deras failed to establish a nexus between the alleged persecution and a protected ground.
Upon our review, we conclude that the Board improperly discounted Arita-Deras’ corroborating evidence, applied an incorrect legal standard for determining past persecution, and erred in its nexus determination. Accordingly, we grant Arita-Deras’ petition and remand her case to the Board for further proceedings.
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After eight years of bouncing around the system at various levels THIS “NotQuite Good Enough For Government Work” error-fest is what we get from EOIR! As I keep saying, no wonder they are running a 1.3 million case backlog, clogging the Circuit Courts with incredibly shoddy work, and in many cases sending vulnerable refugees back to death or torture under incorrect fact findings and blatantly wrong legal interpretations!
Again, nothing profound about this claim; just basic legal and analytical errors that often flow from the “think of any reason to deny” culture. EOIR just keeps repeating the same basic mistakes again and again even after being “outed” by the Circuits!
This case illustrates why the unrealistically high asylum denial numbers generated by the biased EOIR system and parroted by DHS should never be trusted. This respondent, appearing initially without a lawyer, was actually coerced by an Immigration Judge into accepting a “final order” of removal with a totally incorrect, inane, mis-statement of the law. “Haste makes waste,” shoddy, corner cutting procedures, judges deficient in asylum legal knowledge, and a stunning lack of commitment to due process and fundamental fairness are a burden to our justice system in addition to being a threat to the lives of individual asylum seekers.
Only when she got a lawyer prior to removal was this respondent able to get her case reopened for a full asylum hearing. Even then, the IJ and the BIA both totally screwed up the analysis and entered incorrect orders. Only because this respondent was fortunate enough to be assisted by one of the premier pro bono groups in America, the CAIR Coalition, was she able to get some semblance of justice on appeal to the Circuit Court!
I’m very proud to say that a member of the “CAIR Team,” Adina Appelbaum, program Director, Immigration Impact Lab, is my former Georgetown ILP student, former Arlington Intern, and a “charter member” of the NDPA! If my memory serves me correctly, she is also a star alum of the CALS Asylum Clinic @ Georgetown Law. No wonder Adina made the Forbes “30 Under 30” list of young Americans leaders! She and others like her in the NDPA are ready to go in and start cleaning up and improving EOIR right now! Judge Garland take note!
Adina Appelbaum Director, Immigration Impact Lab CAIR Coalition PHOTO: “30 Under 30” from Forbes
Despite CAIR’s outstanding efforts, Ms. Arita-Deras still is nowhere near getting the relief to which she should be entitled under a proper application of the law by expert judges committed to due process. Instead, after eight years, she plunges back into EOIR’s 1.3 million case “never never land” where she might once again end up with Immigration Judges at both the trial and appellate level who are not qualified to be hearing asylum cases because they don’t know the law and they are “programmed to deny” to meet their “deportation quotas” in support of ICE Enforcement.
Focus on it folks! This is America; yet individuals on trial for their lives face a prosecutor and a “judge” who are on the same side! And, they are often forced to do it without a lawyer and without even understanding the complex proceedings going on around them! How is this justice? It isn’t! So why is it allowed to continue?
Also, let’s not forget that under the recently departed regime, EOIR falsely claimed that having an attorney didn’t make a difference in success rates for respondents. That’s poppycock! Actually, as the Vera Institute recently documented the success rate for represented respondents is an astounding 10X that of unrepresented individuals. In any functional system, that differential would be more than sufficient to establish a “prima facie” denial of due process any time an asylum seeker (particularly one in detention) is forced to proceed without representation.
Yet, this miscarriage of justice occurs every day in Immigration Courts throughout America! Worse yet, EOIR and DHS have purposely “rigged” the system in various ways to impede and discourage effective representation.
To date, while flagging EOIR for numerous life-threatening errors, the Article IIIs have failed to come to grips with the obvious: The current EOIR system provides neither due process nor fundamental fairness to the individuals coming before these “courts” (that aren’t “courts” at all)!
Acting AG Wilkinson has piled up an impressive string of legal defeats in immigration matters in just a short time on the job. It’s going to be up to Judge Garland to finally make it right. It’s urgent for both our nation and the individuals whose rights are being stomped upon by a broken system on a daily basis!
Here’s a recent unpublished decision from the 9th Circuit in Deepak Lama v. Wilkinson, (Feb. 24, 2021):
Before: HURWITZ and BRESS, Circuit Judges, and FEINERMAN,** District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation.
Deepak Lama, a citizen of Nepal, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge (IJ) order denying his claims for asylum and withholding of removal.1 We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand.
The IJ found that Lama had suffered past persecution on account of his political activity and was entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). But, the IJ also found that the government had rebutted the presumption, and the BIA then dismissed Lama’s appeal on the sole basis that Lama could safely and reasonably relocate within Nepal, to Chitwan, where he previously resided for five years without incident. Our review is limited to the ground on which the BIA relied. Qiu v. Barr, 944 F.3d 837, 842 (9th Cir. 2019).
When the presumption of a well-founded fear of future persecution applies, the government bears the “burden of showing that relocation is both safe and reasonable under all the circumstances” by a preponderance of the evidence. Afriyie v. Holder, 613 F.3d 924, 934 & n.8 (9th Cir. 2010), overruled on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1070 (9th Cir. 2017). “Relocation analysis consists of two steps: (1) ‘whether an applicant could relocate safely,’ and (2) ‘whether it would be reasonable to require the applicant to do so.’” Singh v. Whitaker, 914 F.3d 654, 659 (9th Cir. 2019) (quoting Afriyie, 613 F.3d at 934). We
1 The BIA found that Lama forfeited his claim under the Convention Against Torture. Lama does not challenge that ruling in this court.
2
conclude that the BIA’s limited relocation analysis does not satisfy the applicable legal requirements.
First, the agency “failed to take into account the numerous factors for determining reasonableness outlined in 8 C.F.R. § 1208.13(b)(3).” Knezevic v. Ashcroft, 367 F.3d 1206, 1215 (9th Cir. 2004). Relying on Lama’s stay in Chitwan between 2003 and 2008, the agency provided no analysis of whether it would be reasonable for Lama to relocate there at the time of his hearing, in 2017. Lama demonstrated that he experienced persecution in Nepal both in his hometown and later in Kathmandu, and that this persecution took place both before and after he lived in Chitwan. While his time in Chitwan appears to have been without incident, he last lived there many years ago. The government presented no evidence that Lama could safely and reasonably return there now, considering both the current political situation in Chitwan and Lama’s personal circumstances. See Singh, 914 F.3d at 661.
Second, the BIA’s analysis rests on an apparent misapprehension of the record. The BIA stated that “[t]he record contains no evidence that it would no longer be safe or reasonable for [Lama] to once again return to [Chitwan] where he had previously voluntarily relocated and resided for approximately 5 years without incident.” (Emphasis added.) But the record contains a 2016 letter written to Lama from his uncle, with whom he lived in Chitwan, indicating that Lama would not be
3
safe there. The BIA did not consider this evidence. And to the extent the BIA “erroneously presumed that relocation was reasonable and improperly assigned the burden of proof to [Lama] to show otherwise,” Afriyie, 613 F.3d at 935, it erred in that respect as well. See also 8 C.F.R. § 1208.13(b)(3)(ii) (burden of proof).
Gomes v. Gonzales, 429 F.3d 1264 (9th Cir. 2005), does not support the government’s position that because Lama once resided in Chitwan without incident, “it is axiomatic that he can do so again.” In Gomes, unlike this case, the petitioners had not shown past persecution and thus bore the burden to show that relocation was unreasonable. Id. at 1266–67 & 1266 n.1. In addition, unlike Lama, it appears that the petitioners in Gomes had safely resided in the area in question immediately prior to entering the United States. See id. at 1267. Gomes also did not involve the BIA failing to address evidence (here the letter from Lama’s uncle) indicating that relocation to the designated area could be unsafe.
For the foregoing reasons, we grant the petition and remand this matter to the BIA for further proceedings consistent with this decision. Any relocation analysis must comport with the governing regulations and this court’s precedents. See 8 C.F.R. § 1208.13(b)(3); Singh, 914 F.3d at 659–61. We also dismiss as moot the portion of Lama’s petition challenging the BIA’s denial of his motion to remand.
PETITION FOR REVIEW GRANTED IN PART AND DISMISSED IN PART; REMANDED.
4
*******************
Once again, this is nothing profound, difficult, or controversial. Just basic application of EOIR’S own regulations, consideration of all the evidence presented by the respondent, and basic analysis, with some fundamental fairness and common sense thrown in. That’s probably why the panel didn’t deem it worthy of publication. But, it does further illustrate a disturbing pattern at the BIA and the Immigration Courts.
During my time as an Immigration Judge, I was sometimes involved in the nationwide judiciallaw clerk (JLC)training program. One of my key points to the JLCs was that many Immigration Judges, even then, continued to get basic “burden shifting” and further analysis wrong once the respondent established past persecution, thereby invoking the regulatory presumption of future persecution.
The DHS then has the burden of establishing by a preponderance of the evidence either 1) fundamentally changed conditions that would eliminate any well-founded fear of individualized persecution; or 2) a reasonably available internal relocation alternative under the applicable regulations.
Because conditions seldom materially improve in most refugee-sending countries, and reasonable relocation alternatives that would eliminate a well-founded fear of persecution (not hiding in someone’s basement or in a cave in the forest) can seldom be established, in my experience, the DHS almost always failed to rebut the presumption. This was particularly the case because then, as now, the ICE counsel usually presented no testimony or other evidence to rebut the presumption beyond that contained in the State Department Country Report, whichseldom was definitive on this type of highly individualized analysis.
Even where the DHS rebuts the regulatory presumption, the respondent still can win protection if she or he shows 1) compelling reasons for not returning arising from the past persecution, or 2) a reasonable possibility of other serious harm if returned.
These regulatory standards are consistent with the generous intent of the refugee definition as described by the Supreme Court in INS v. Cardoza-Fonseca. They should result in rather easy grants of protection in most cases involving past persecution,
However it appears that EOIR judges haven’t improved in this area. If anything, result-oriented decision-making geared to make denial of asylum the “administrative norm” evidently has been substituted for careful, professional, expert analysis. Indeed, correct analysis by expert judges knowledgeable in asylum law would probably result in most cases like this being granted at the Immigration Judge level, or even the Asylum Office, thus discouraging the DHS from taking largely meritless appeals to the BIA and reducing the workload in the Circuit Courts.
Instead the sloppy, biased, “any reason to deny” attitude that infects today’s EOIR means that justice for asylum seekers requires skilled lawyers, a “lucky draw” on judges at some level of the system, and, all too often, endless remands and time spent on “redos” to correct elementary errors. No wonder this system is running an astounding 1.3 million case backlog, even with many more IJs on the bench at both the trial and appellate levels!
This is a “system designed to fail.” And, failing it is, at every level, spilling over into the Article III Courts and placing the foundation of our entire U.S. justice system — due process for all under law — in jeopardy.
Quality, expertise, understanding, and a fair and humane attitude toward asylum seekers is much more important than quantity in asylum adjudication!This the exact opposite of the message delivered by the last Administration.
Here’s my basic thesis:
Granting relief wherever possible and at the lowest possible levels of the system speeds things up and promotes best practices and maximum efficiency without stomping on anyone’s rights. (And, it saves lives).
En masse denials and trying to run a “deportation railroad” eventually leads to gross inefficiencies and systemic failure. (And, it kills innocent individuals).
I’m not the only one who believes this. As one of my esteemed Round Table colleagues recently quipped: “The sloppiness of the BIA in case after case is alarming.” Indeed it is; but, sadly, not particularly surprising or unusual.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons“Justice” Star Chamber Style
PANEL: Howard, Chief Judge, and Kayatta, Circuit Judge.**Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel’s opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d).
ATTORNEYS: Nancy J. Kelly, with whom John Willshire Carrera and Harvard Immigration & Refugee Clinic of Harvard Law School at Greater Boston Legal Services were on brief, for petitioner.
Stratton C. Strand, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Douglas E. Ginsburg, Assistant Director, and Derek C. Julius, Senior Litigation Counsel, were on brief, for respondent.
OPINION BY: Chief Judge Howard
KEY QUOTE:
Petitioner Olga Araceli Molina- Diaz is a Honduran native and citizen who twice entered the United States without authorization. The government ordered her removed to Honduras, and an immigration judge (“IJ”) denied her subsequent application for withholding of removal (“Application”). Molina appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s order and denied Molina’s motion to reopen and remand. Molina now petitions this court to review the BIA’s decision. Because we agree that the IJ and BIA made legal errors, we grant the petition, vacate the removal order, and remand for further proceedings.
*************************
Folks, we’re not talking about obtuse principles of international law, complex statutory interpretation, or “cutting edge” legal concepts. No, this is about credibility, corroboration, following your own precedents (even when they might produce a result favorable to the respondent), and adjudicating a CAT claim.
These are the “bread and butter” of basic asylum and withholding adjudication that is the staple of most Immigration Court dockets. Not rocket science! Yet, once they got below the “caption line,” the BIA, a supposedly “expert tribunal,” got pretty much everything else wrong. With human life at stake, no less!
This isn’t just an “outlier.” It reveals deep systemic problems in a dysfunctional system that has been programmed to cut corners and deny relief. After 21 years as an EOIR Judge at every level, I know an “autopilot denial” when I see one.
This is clearly the product of a judge and a BIA panel that approached the case with a “we deny almost all Hondurans, it’s just a question of how” attitude. Because “the bottom line got to no,” obviously nobody paid much, if any, attention to what was above it. I suspect that if the staff attorney had drafted this as a grant or a remand, the BIA panel would have given it a more thorough and searching review.
Following your own precedents isn’t a matter that requires profound knowledge or amazing analytical skills. It just requires some level of basic expertise and an open mind — things that appear to be sorely lacking throughout today’s broken EOIR.
The flawed EOIR approach to claims for asylum and withholding, particularly those involving the Northern Triangle and women, is very costly, not only to the humans involved, but also to our justice system. This respondent reentered the U.S. in 2009, and her merits hearing before the IJ took place in 2012. A careful, proper analysis could well have resulted in a grant at that time.
Instead, this “plethora of errors,” created by EOIR’s corner cutting and obsession with denying claims, bounced around the system for nearly a decade before being “outed” by the Circuit Court — obviously the only judges involved who took the time to actually analyze the case in accordance with the law, the facts, and the arguments made by counsel. So, after nearly a decade, at three different levels of review, we’re basically back to “square one” with this case.
The case will be returned to the BIA who inevitably will return it to to the IJ for a new hearing that actually complies with the law and due process. Given the total dysfunction in the EOIR system, it’s could easily be around for another decade.
Getting it right at the first level is critically important in a high volume, yet life determining, system like the Immigration Courts!That’s why it’s so absolutely essential that Judge Garland replace the current BIA and many of the current trial judges with “practical experts;” judges selected on a merit-basis because of their understanding of immigration and human rights laws, demonstrated analytical skills, and who by experience and reputation are overwhelmingly committed to due process, fundamental fairness, treating respondents and their lawyers with respect and dignity, and getting the right result the first time around. “The best and the brightest,” if you will!
As this case that began well before Trump shows, the deterioration at EOIR has been underway across Administrations over the past two decades. It greatly accelerated and became more acute under Trump. That’s particularly true because “Trump AGs” drastically expanded the Immigration Courts and the BIA (while exponentially increasing the backlog), and now have appointed the majority of judges in the system — after just four years!
Compare that with the Obama Administration’s practice of taking an mind-boggling average of two years to fill IJ vacancies! And, then filling them almost all with “government insiders and former prosecutors” rather than some of the many renowned “practical scholars,” experienced clinicians, and notable litigators in the private/academic/NGO immigration/human rights sectors. They actually left behind unfilled judicial vacancies for Sessions to “pounce on.” Says all you really need to know about the “priority” of immigrant justice in the Obama Administration. The “good enough for government work” attitude that has replaced “guaranteeing fairness and due process for all” as the “EOIR Vision” needs to go, now!
🇺🇸⚖️🗽Due Process Forever! Achieving it in the Immigration Courts will be the “litmus test” of whether Judge Garland succeeds or fails in his new role as Attorney General! You can’t improve justice for all in America while running a “court system” that denies justice, often ignores the law, mocks due process, eschews best practices and common sense, and routinely disrespects the humanity of those appearing before it! All while running up a stunning 1.3 million case backlog! As Justice Sotomayor would say: “This is not justice!”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleBIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia Commons
Transactional Records Access Clearinghouse
Immigration Court Case Completion Times Jump as Delays Lengthen
FOR IMMEDIATE RELEASE
Not surprisingly, Immigration Court closures and delays in hearings for courts that are conducting hearings have drastically reduced the number of completed cases for the first two months of this fiscal year as compared with prior years at the same time.
New cases continue to drastically outpace case completions. In October and November 2020, the Immigration Courts received 29,758 new filings. This is fewer filings than usual, but still almost twice the 15,990 cases they completed.
As a result, the court’s active backlog at the end of November 2020 reached 1,281,586. This is up 18,821 cases in just the last two months. Adding to the court’s workload are not only new filings, but previously closed cases that have been reopened, remanded for reconsideration, or otherwise placed back on the court’s docket.
Disposition times for closed cases have also shot up this year. Cases disposed of in FY 2020 took on average 460 days. During the first two months of FY 2021, the courts disposed of a much smaller number of cases, but the disposition times were much longer at an average of 755 days—or 64 percent longer. The longest disposition times were found in the Cleveland Immigration Court where it took on average 1,617 days.
For the latest disposition times at each Immigration Court read the full report at:
To examine a variety of Immigration Court data, including asylum data, the backlog, MPP, and more now updated through November 2020, use TRAC’s Immigration Court tools here:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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As mom used to say, “Haste makes waste.” Taking more time to decide cases would be perfectly defensible if it actually produced useful deliberation, thoughtful scholarship, and just and fair results. But, this currently is a system that must limit its intake while it develops the expertise, scholarship, analytical skills, quality control mechanisms, and best practices necessary for judicial efficiency that complies with due process and fundamental fairness (not to mention basic asylum law). That’s a “complete rebuild.”
Then, once that system is running well, it could be methodically and rationally expanded, if actually necessary. But, aimlessly building more assembly lines producing defective products and then ratcheting up the speed will, not surprisingly, produce nothing except more dangerous and defective products.
Not exactly rocket science that a bunch of hacks implementing racist policies, trying to speed up the assembly line, engaging in “Aimless Docket Reshuffling,” eradicating due process, discouraging fairness and deliberation, eliminating their own jurisdiction to control the dockets, and denying everything while mindlessly throwing more resources into a broken beyond belief “(non)system” at war with its own essential employees and those whom it (dis)serves would produce total chaos and dysfunction.Also, throw in lack of best technology and overt disregard for public health and safety.
And, while this is going on, an undisciplined, out of control, and for all practical purposes worse than useless ICE continues to pour new cases into the maelstrom at twice the rate it can get turn them out! As the late NY Met’s Manager Casey Stengel once said, “Can’t anyone here play this game?”
This is an ongoing and increasingly visible unmitigated national disgrace. It’s also an abuse of public funds and a betrayal of the public trust — fundamentals of sound government.
And, it won’t be “swept under the table” in the finest tradition of incoming Administrations. As I’ve said before, the Biden-Harris Administration either fixes EOIR🤡 immediately with some new faces with real expertise, or it “owns” it. And, the current White Nationalism infested atrocity and den of “malicious incompetence” at EOIR🤡 is not something an Administration striving to achieve equal justice and racial reconciliation should want to own!
Due Process Forever!
Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
The Board of Immigration Appeals has issued a decision in Matter of M-A-M-Z-, 28 I&N Dec. 173 (BIA 2020).
(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings.
(2) When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.
PANEL: MULLANE, CREPPY, and LIEBOWITZ, Appellate Immigration Judges
OPINION BY: Judge MULLANE
**********************
So, with the overt politicization and precipitous decline in reliability of DOS Country Reports, expert opinions have become of increasing importance in asylum cases. And, the are many great experts and groups providing alternatives to the skewed DOS reports these days.
So, what’s really needed in NOT more encouragement for IJs, many of whom lack real asylum expertise, to find ways to downgrade or dismiss experts. What is essential, is new guidance: 1) honestly recognizing that this Administration’s anti-asylum and inappropriate ideological agendas have undermined the credibility of DOS reports; and 2) describing ways in which IJs should be using alternatives, like expert testimony and reports, to support grants of protection to applicants who need and deserve them.
Credible applicants are supposed to be given the benefit of the doubt. Today’s EOIR has “made mincemeat” of that principle.
It is time to rethink the evidence so often submitted and relied upon in asylum claims, to dial back the corroboration demands, and to return to a core principle of refugee law – the need to afford asylum seekers the benefit of the doubt. We need a better way to establish asylum eligibility and challenge stereotypes.
Appropriate guidance is not going to happen until the present BIA is replaced by real appellate judges who are experts on asylum law, due precess, fundamental fairness,and who have experience representing asylum seekers in the real world. Hopefully, that long overdue day, is within sight: “Hey hey, ho, the EOIR Clown Show has got to go!
Due Process Forever!
PWS
12-20-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Mary Kenney, Deputy Director, National Immigration Litigation Alliance (“NILA”) writes:
Hello all –
NILA, NWIRP, AIC and the Law Offices of Stacy Tolchin are thrilled to announce that the district court just granted declaratory and injunctive relief in our nationwide class challenge to A-File FOIA delays, Nightingale v. USCIS. The court orders:
Declaratory relief due to Defendants DHS, USCIS and ICE’s pattern or practice of failing to make timely A-File FOIA determinations;
Injunctive relief permanently enjoining Defendants from further failing to adhere to the statutory deadlines for A-File FOIA requests;
That Defendants to make determinations on all backlogged FOIA requests within 60 days; and
That Defendants submit quarterly compliance reports to the Court and class counsel going forward.
Here are some great findings from the Court:
Defendants’ “delay in processing A-File FOIA requests . . . . undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.”
“A comprehensive remedy is needed and is long overdue.”
“[S]ince 2017 these defendants have employed aggressive immigration enforcement policies that made an increasing [A-File FOIA]workload predictable and expected. The unfortunate reality is that FOIA is the only realistic mechanism through which noncitizens can obtain A-Files. Given the critical importance of the information in A-Files to removal defense and legalizing status, it is not at all surprising that the number of A-File FOIA requests have increased along with this increase in immigration enforcement.”
“USCIS also complains that it recently tried to increase its fees through a new regulation that could have added more resources to its FOIA budget, but that effort is currently preliminary enjoined in this District. . . . . This argument is particularly troubling as it insinuates that FOIA processing is entirely dependent on the fees paid by the very people who are harmed by the defendants’ delays.
Congrats to Mary and everyone else involved in this extraordinary “team effort” to hold the immigration bureaucracy (now “kakistocracy”) accountable after years of unacceptable and illegal conduct which has directly undermined the rule of law and immigrants’ rights!
So, let’s summarize the absurdity, and not let the “malicious incompetents” at EOIR off the hook, either:
With well over 1 million backlogged cases, many pending for years, EOIR chooses to “expedite and prioritize” “not quite ready for prime time” recent cases, without giving the private parties adequate time to prepare, or even get lawyers in many cases;
In “cahoots” with DHS, EOIR insures that cases will be scheduled without regard to the delays in getting the necessary file material from DHS via FOIA requests;
EOIR fails to impose reasonable discovery rules on DHS, nor do they insist, as any ”real” court would, that no case will be scheduled for a merits hearing until DHS complies with respondents’ reasonable requests for file materials;
USCIS, once a “self-funding agency,” improperly diverts resources to bogus racist inspired, enforcement activities;
As a result of this gross mismanagement, USCIS falsely claims “bankruptcy,” and illegally tries to increase FOIA fees, a move properly blocked by Federal Courts;
USCIS then falsely blames respondents for the discovery delays caused by its own misappropriation of resources and racist policies.
The solution:The Biden Administration must immediately oust the White Nationalist kakistocracy ☠️ at DHS and EOIR and replace it with competent experts from the NDPA who will restore order, rationality, professionalism, efficiency, and integrity to a dysfunctional system that has undermined the public interest and common good.
It’s not rocket science! Just competence, morality, and humanity.
Congrats to my friend Zachary Nightingale, Partner at Van Der Hout LLP, in San Francisco, who was the “lead named plaintiff” in this “sure to be famous” case. The “Nightingale rule” and “getting the Nightingales” are likely to become synonymous with what passes for “discovery” in Immigration Court, at least until we get Article 1.
Job Opportunity:Clock Repair Technicians Wanted. Start Date: January 21, 2021. Location: DHS & EOIR. Duties: Fix broken “asylum work authorization clock 🕰” to account for reality that most major delays in completing asylum hearings consistent with due process are caused by the Government’s incompetence, elevation of racist enforcement initiatives over due process and fundamental fairness, and “Aimless Docket Reshuffling,” NOT by asylum applicants and their (often pro bono or “low bono”) representatives. Draft legislation to repeal this irrational, unnecessary, and counterproductive statute.
PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.
OPINION BY: Judge HARTZ
KEY QUOTE:
On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).
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Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!
This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers.
In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current grossly defective leadership.
I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals.
Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!
The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law.
Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice. It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!
Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”
Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.
We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!
Thanks, Professor Hong to you and your dedicated“crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!
In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.
This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community. As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.
But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality! Things don’t have to be the way they are now at EOIR!
