⚖️BC PROFESSOR KARI HONG’S BIG WIN IN 10TH CIRCUIT HIGHLIGHTS YET ANOTHER FAILURE OF BASIC ASYLUM ANALYSIS BY EOIR JUDGES! — This Time They Failed To Follow The Rules On “Reasonably Available Internal Relocation!” — ADDO v. BARR — “[B]ecause the purpose of the relocation rule is not to require an applicant to stay one step ahead of persecution in the proposed area, th[e] [new] location must present circumstances that are substantially better than those giving rise to a well-founded fear of persecution on the basis of the original claim.”

Addo v. Barr, 10th Cir., 12-14-20, published

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”).

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

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!

Due Process Forever!⚖️🗽😄

PWS

12-17-20

JEFFREY S. CHASE BLOG: In 1996, The BIA Was Functioning Like A Court & Trying To Develop & Apply Asylum Law In The Rational, Generous Way It Was Intended, Properly Giving The Applicant “The Benefit Of the Doubt” — Today, The BIA Is A Deadly ☠️☠️⚰️ Clown Show 🤡 Asylum Denial Factory!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Star Chamber Justice — “Justice”
Star Chamber
Style

Kangaroos — BIA Members: “Hey, let’s celebrate! We just sent a refugee to death for not being able to describe some obscure insignia irrelevant to the case. But, the big thing is we found ‘any reason to deny’ asylum making our handler ‘Billy the Bigot’ happy! He’s out to set new killing records before Jan. 20! Maybe he’ll find us jobs at Breitbart then!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

https://www.jeffreyschase.com/blog/2020/11/29/facts-reason-and-benefit-of-the-doubt

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Facts, Reason, and Benefit of the Doubt

On November 24, the U.S. Court of Appeals for the Second Circuit issued an unpublished decision in Malonda v. Barr. In that case, the asylum-seeker was attacked by armed soldiers when they raided his family’s home in the Democratic Republic of Congo. The soldiers raped and killed three of his sisters, and abducted his father and brother, all due to the father’s membership in an opposition political party.

The Immigration Judge acknowledged the voluminous documentation and detailed testimony in support of the claim. However, asylum was denied because Malonda couldn’t identify the soldiers’ uniforms with absolute certainty, although he stated “they were working for the government, I can say.” And because he did not credit the attackers as working for the government, the judge did not find that the attack was necessarily motivated by the family’s political opinion, but could have simply been an act of random violence not protected under asylum law.

Malonda was not the only recent agency decision to employ this thought pattern. In the BIA’s precedent decision in Matter of O-F-A-S-, an applicant for protection under the Convention Against Torture testified that he was beaten, robbed, and threatened by five men wearing police uniforms bearing the insignia of a government law enforcement agency, who were armed with high-caliber weapons and handcuffs. The Immigration Judge determined that the respondent had not met his burden of establishing that the five were police officers, as the uniforms could have been fake, and criminals also carry weapons. The IJ further noted that the five did not arrive in an official police car, and immediately departed when they heard that a police car was en route in response to the disturbance. Of course, real police officers engaging in extracurricular criminal activity would behave the same way. Nevertheless, the BIA found no clear error on appeal.

In another recent decision presently pending at the Second Circuit, asylum was denied because the applicant was unable to state with certainty from the details of the uniform he wore that one of his persecutors was certainly a police officer, although he believed that he was. The IJ therefore did not conclude that police were involved, instead considering the persecutors to be non-state actors, from whom the respondent hadn’t proven that the police were unwilling or unable to protect him. The BIA affirmed in an unpublished decision. Obviously, a finding that a police officer participated in the persecution of the asylum applicant could well have led to a different finding as to the government’s willingness to protect.

In each of the above cases, the respondent was found to be a credible witness. There are only two types of witnesses in court proceedings: fact (or “lay”) witnesses and experts. Asylum applicants are fact witnesses, describing what they experienced. Although the Federal Rules of Evidence are not binding on immigration judges, they provide the best guidance available, as the Immigration Courts have no such evidentiary rules of their own. Rule 701 of the FRE allows a lay witness to express an opinion provided that it is (1) rationally based on their own perception; (2) helpful to clearly understand the testimony or to determine a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge reserved for expert witnesses. In the above cases, the asylum seekers’ opinions that the uniformed, armed attackers were government officials fit clearly within the parameters of Rule 701.

Of course, asylum applicants are not experts on uniforms worn by the various government forces in their home countries. I doubt most country experts who testify in asylum cases would possess such specific expertise. Even if they did, those experts weren’t present to witness the event in question to be able to affirm that the uniform was in fact the official government issue. So what is the solution in cases in which the Immigration Judge harbors doubt regarding the attackers?

The UNHCR Handbook at para. 196 advises that despite all efforts, “there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” The following paragraph adds that evidentiary requirements should not be applied too strictly to asylum seekers. But the Handbook sets limits on this practice, adding that “[a]llowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.”1

It would seem that requiring absolute confirmation of the authenticity of the attacker’s uniform (which psychologists have testified is not one’s focus during a traumatic experience) places an insurmountable burden on asylum applicants. Given the purpose of asylum laws, where an asylum applicant expresses the reasonable opinion that attackers who look and behave like government officials are in fact government officials, in the absence of the type of inconsistencies flagged by the Handbook, the benefit of the doubt should be allowed to carry the day.

Addressing this issue in Malonda, the Second Circuit focused on the fact that the identity issue was tied to the question of political opinion. The court referenced its decision from earlier this year in Hernandez-Chacon v. Barr, in which it cited language from the BIA’s excellent 1996 decision in Matter of S-P- holding that political opinion is established by direct or circumstantial evidence.

The Second Circuit pointed to circumstantial evidence in Malonda’s testimony that the attackers were government soldiers motivated by the family’s political opinion. Such evidence included the facts that Malonda’s home was the only one attacked, and his father was the only resident of the street who was an active opposition party member. Furthermore, the likelihood of the attackers being anti-government rebels was undermined by Malonda’s testimony that the rebels ability to reach his neighborhood was impeded by the presence of state security forces, and that his brother, who was abducted by the attackers, was brought to a camp where he was trained to fight against (rather than for) the rebels.

In a footnote, the court noted that the BIA had added its own insinuation to the contrary by referencing general reports of rebel involvement in “widespread violence and civil strife” in the country. But the Second Circuit pointed out that such general information failed to consider that Malonda’s own region was protected by the government, and “more importantly, does not explain why the rebels would have targeted only Malonda’s house for such violence.”

The Second Circuit’s opinion in Malonda emphasizes the starkly different approaches of the 1996 BIA and its current iteration. In Matter of S-P- (an en banc decision which remains binding precedent on immigration judges and the BIA), the Board noted the difficulty in determining motive where “harm may have been inflicted for reasons related to government intelligence gathering, for political views imputed to the applicant, or for some combination of these reasons.” But the Board emphasized the importance of keeping “in mind the fundamental humanitarian concerns of asylum law,” which are “designed to afford a generous standard for protection in cases of doubt.”2

S-P- also included a reminder that a grant of asylum “is not a judgment about the country involved, but a judgment about the reasonableness of the applicant’s belief that persecution was based on a protected ground.” As the scholar Deborah Anker has emphasized, such reasonableness determinations require “that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.”3 In its decision in Sotelo-Aquije v. Slattery, the Second Circuit similarly emphasized the importance of vantage point by describing the standard as what a reasonable person would find credible “based on what that person has experienced and witnessed.”

Applying this standard, what reasonable person who had experienced and witnessed what Malonda did would say: “You know, I was pretty certain the attackers were government soldiers punishing us for my father’s political activities. But since you pointed out that I’m not completely certain about the uniforms, I guess I was mistaken. It was probably just a random incident. In which case, I can’t see any reason to fear return?”

Remarkably, that appears to have been the BIA’s approach in Malonda. Its decision lacked any indication of adopting the asylum applicant’s vantage point or applying the benefit of the doubt as described above. And while Matter of S-P- set out a rather complex set of elements for identifying motive through the types of circumstantial evidence pointed to by the Second Circuit, the present BIA pointed instead to whatever generalized information it could find in the record to justify affirming the asylum denial.

Although an unpublished decision involving a pro se petitioner that could easily evade our attention,4 Malonda underscores the need for a uniform application of the principles emphasized in the BIA’s decision in Matter of S-P-, instead of a “uniform” approach based on the ability to identify uniforms.

Notes:

Although not binding, the Supreme Court has recognized that “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform [and] has been widely considered useful in giving content to the obligations that the Protocol establishes.” INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n. 22 (1987). The BIA reached a similar conclusion in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (finding the Handbook to be a useful tool “in construing our obligations under the Protocol”).

The majority opinion in Matter of S-P- was authored by now retired Board Member John Guendelsberger. Three current members of the Round Table of Immigration Judges, Paul W. Schmidt (the BIA Chairperson at the time), Lory D. Rosenberg, and Gustavo Villageliu, joined in Judge Guendelsberger’s opinion.

Deborah E. Anker, Law of Asylum in the United States (2020 Edition) (Thomson Reuters) at 76.

Thanks to attorney Raymond Fasano for bringing this decision to my notice.

Copyright 2020, Jeffrey S. Chase. All rights reserved.

Reprinted With Permission.

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

Obviously, the BIA could resume court-like functions, provide scholarly, rational guidance and enforce uniformity for Immigration Judges (too many of whom lack true expertise in asylum laws), help cut backlogs, increase efficiency, and put an end to frivolous litigation by DHS which too often these days seeks to encourage IJs to deny cases where asylum grants clearly are warranted. (There was a time, at least in Arlington, when DHS Counsel actually worked cooperatively with the private bar and the Immigration Judges to promote fairness and use court time wisely on asylum cases. Those days are now long gone as the system has regressed horribly and disgracefully under the maliciously incompetent, White Nationalist, nativist, leadership of the current regime at DHS and DOJ).

But, due process, fundamental fairness, and best practices, can’t and won’t happen until the current “BIA Clown Court” 🤡 is replaced with a new group of expert Appellate Judges ⚖️👨🏻‍⚖️🧑🏽‍⚖️ from the NDPA who are “practical scholars” in immigration and human rights laws.

EOIR clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever!

PWS

11-30-20

🤮👎🏻EOIR’S CONTEMPT FOR CIRCUITS, UNPROFESSIONAL ABUSE OF EXPERTS, PRO-DHS BIAS EARNS STRONG REBUKE FROM 9TH! — End The Star Chambers!☠️ — No More “Governmental Malpractice” From The New Administration!

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/18/19-72745.pdf

Castillo v.Barr, 9rh Cir., 11-18-20, published

Summary by court staff:

Granting Juan Mauricio Castillo’s petition for review of the Board of Immigration Appeals’ denial of his application for protective status pursuant to the Convention Against Torture, and remanding, the panel held that the Board erred in giving reduced weight to the testimony of Dr. Thomas Boerman, a specialist in gang activity in Central America and governmental responses to gangs.

Castillo is a former gang member with tattoos who fears torture by gangs and/or Salvadoran officials because of his former gang memberships, his criminal conviction, and his later cooperation with law enforcement against La Mara Salvatrucha or MS-13. In a prior petition, the same panel concluded that the immigration judge and the Board improperly discounted Dr. Boerman’s testimony.

The panel addressed two initial matters. First, the panel stated that the Board’s rejection on remand of the panel’s prior interpretation of the immigration judge’s decision was ill-advised, explaining that its prior disposition was not an advisory opinion, but a conclusive decision not subject to disapproval or revision by another branch of the federal government. Second, the panel rejected the Board’s reliance on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its conclusion that Dr. Boerman’s testimony should be given reduced weight, because Vatyan addressed an IJ’s

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

CASTILLO V. BARR 3

discretion to weigh the “credibility and probative force” of an authenticated document, whereas the issue in this case involved the testimony of an expert that the agency had ostensibly concluded was fully credible.

Even assuming the agency could accord reduced weight to Dr. Boerman’s testimony and declaration, the panel disagreed with the Board’s new justifications. First, the panel rejected the Board’s reliance on alleged inconsistencies regarding Dr. Boerman’s familiarity with Castillo’s prison gang, where Dr. Boerman explicitly wrote in his declaration that his comments on Castillo’s prison gang were based on facts provided by Castillo, and the Board did not cite any reason to doubt Castillo’s testimony regarding rival gangs.

Second, the panel disagreed with the Board’s conclusion that Dr. Boerman’s testimony did not warrant full weight because he did not submit a copy of a video referenced in his testimony, where the video was neither the sole nor primary basis for his opinion, and the Board failed to explain why the absence of one video diminished the weight of Dr. Boerman’s expert opinion, when his opinion had an independent factual basis.

Finally, the panel concluded that the Board’s decision to give Dr. Boerman’s opinion reduced weight, because it was not corroborated by other evidence in the record, was erroneous. The panel observed that the country report did provide support for Castillo’s claim, and it noted that Dr. Boerman’s expert testimony was itself evidence that could support Castillo’s claim.

The panel remanded to the Board, directing it to give full weight to Dr. Boerman’s testimony regarding the risk of

4 CASTILLO V. BARR

torture Castillo faces if removed to El Salvador. The panel explained that if the Board determines once again that Castillo is not entitled to relief, it must provide a reasoned explanation for why Dr. Boerman’s testimony is not dispositive on the issue of probability of torture. The panel further explained that once it gives full weight to Dr. Boerman’s testimony, the remaining issue for the Board is to determine whether Castillo has established the government acquiescence element of his CAT claim.

***********

Essentially, EOIR has been unethically misusing their authority to harass Dr. Boerman and respondents’ advocates by systematically teaming up with ICE to devalue and defeat their efforts. Remarkably, this is even though Dr. Boerman and the advocacy community are “busting their tails” trying to help the system function properly and achieve justice! How screwed up, perverted, and cowardly is that?

Obviously justice and a functioning system have been antithetical to this regime and their toadies at DOJ and EOIR. With the degradation of the DOS Country Reports by political hacks, expert testimony has become essential in most asylum cases. Disgraceful performances by EOIR, as in this case, undermine the system and add to the backlog.

This case should have been completed in a single hearing. The BIA’s open contempt for the Circuits and failure to send strong signals to IJs (and the dilatory litigators at ICE) about issues that clearly should be resolved in the respondent’s favor is a mockery of justice!

Put the experts from the NDPA in charge of EOIR! Replace the BIA with real judges from the NDPA — asylum, human rights, and due process experts who will courageously stand up for the rule of law and hold both Immigration Judges and ICE accountable for scofflaw performances (and resist improper political interference from the DOJ — regardless of Administration).

Judges who will re-establish judicial independence and stop flooding the Circuit Courts (and even the U.S. District Courts) with cases and issues that should be resolved in favor of respondents at the trial level, consistently and efficiently. That’s how to stop DHS’s and DOJ’s frivolous, unethical, anti-immigrant “litigation positions” in immigration matters that are bogging down our justice system at all levels.

That’s also how to cut, rather than astronomically increase, backlogs (along with drastic pruning of all the “deadwood” mindlessly and improperly piled onto the EOIR docket by Sessions, Barr, and an out of control ICE acting as an arm of “White Nationalist nation”). The backlogs can be reduced and eventually eliminated without stomping on anyone’s rights or adversely affecting “real” law enforcement — as opposed to the bogus (and fiscally irresponsible) version we have seen from DHS over the past four years.

Stop “churning” cases! Stop the “denial factory! Create a model, best judicial practices, due-process oriented court system of which we all can be proud! Grant asylum expeditiously and consistently to those who qualify for protection under Cardoza-Fonseca, Mogharrabi, Kasinga, and A-R-C-G- (after vacating the A-B- travesty and reissuing it as a precedent for clear grants in all similar cases)! Encourage the Asylum Offices to do likewise! Make “equal justice for all” part of the new Administration’s legacy!

Think of what a great “teaching tool” that will be for future generations! I always treated my “courtroom as a classroom,” teaching law, history, practical problem solving, best interpretations, and best practices. I can’t think of a more powerful “real life” teaching and doing tool for improving the future of American justice — from the “retail level” of the Immigration Courts to the failing Supremes.

Due Process Forever! A weaponized and dysfunctional EOIR, never!

It’s time for a sea change at EOIR. End the kakistocracy and the “malicious incompetence!” Time for action by the Biden Administration — not just hollow promises and more endless studies and discussions of what we already know and have known for years!

It’s not rocket science! The practical scholars and steadfast defenders of due process and democracy in the NDPA who can fix EOIR are out here and prepared to take over and hit the ground running for due process and fundamental fairness at EOIR! (Amazingly, those were once the goals and vision for EOIR, now trampled, degraded, mocked, and forgotten!) Leaving them on the sidelines again would be “governmental malpractice!” And we’ve already had more than enough of that!

PWS

11-19-20

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

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

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

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

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

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

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

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

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

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

* * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

08-14-20

🎓🗽⚖️👍🏼ATTENTION NDPA: POSITIONS AVAILABLE FOR PRACTICE-ORIENTED IMMIGRATION EXPERTS & PROSPECTIVE IMMIGRATION TEACHERS — Professor Michele Pistone @ Villanova Is Recruiting Paid Adjuncts For Her Amazing VIISTA Program!

Hi Judge Schmidt,

Can you share the below with your networks:

This fall, I am launching a new online certificate program at Villanova University to train immigrant advocates. The program is aimed at people who are passionate about immigrant justice but are not interested in pursuing a law degree at the moment, such as recent college grads, people seeking an encore career, retirees, and the many who currently work with migrants and want to understand more about the immigration laws that impact them. It is also attractive to students seeking to take a gap year or two between college and law school or high school and college.

The program is offered entirely online and is asynchronous, allowing students to work at their own pace and at times that are most convenient for them. I piloted the curriculum during last academic year and the students loved it. It launches full time in August, and will subsequently be offered each semester, so students can start in August, January, and May.

I reach out to you because I am now seeking adjunct professors to help teach the course. Adjunct Professors will work with me to teach cohorts of students as they move through the 3-Module curriculum. Module 1 focuses on how to work effectively with immigrants. Module 2 is designed to teach the immigration law and policy needed for graduates to apply to become partially accredited representatives. Module 3 has more law, and a lot of trial advocacy for those who want to apply for full DOJ accreditation. Each Module is comprised of 2×7-week sessions and students report that they have worked between 10-15 hours/week on the course materials. As an adjunct professor, you will provide feedback weekly on student work product, conduct live office hours with students and work to build engagement and community among the students in your cohort. Tuition for each Module is $1270, it is $3810 for the entire 3-Module certificate program.

Here is a link to the job posting:

https://jobs.villanova.edu/postings/18505

For more information on VIISTA, here is a link, immigrantadvocate.villanova.edu

Please reach out if you have any questions.

Also, please note that scholarships are being offered through the Augustinian Defenders of the Rights of the Poor to select students who are sponsored to take VIISTA by DOJ recognized organizations. For more information on the scholarships, visit this page, https://www.rightsofthepoor.org/viista-scholarship-program

My best,

Michele Pistone

Michele

Michele R. Pistone

Professor of Law

Villanova University, Charles Widger School of Law

Director, Clinic for Asylum, Refugee & Emigrant Services (CARES)

Founder, VIISTA Villanova Interdisciplinary Immigration Studies Training for Advocates

Co-Managing Editor, Journal on Migration and Human Security

Adjunct Fellow, Clayton Christensen Institute for Disruptive Innovation

610-519-5286

@profpistone

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

What an fantastic opportunity to get teaching experience, work on a “cutting edge” program with my good friend and colleague Michele, one of the best legal minds in America, and to make a difference by improving the delivery of justice in America, while being paid a stipend!

A “perfect fit” for members of the New Due Process Army (“NDPA”).

Due Process Forever!🗽👍🏼⚖️

PWS

07-10-20

🏴‍☠️☠️👎🏻BIA KICKS OFF VOLUME 28 WITH BIG-TIME BEATDOWN OF HAPLESS CAMEROONIAN ASYLUM SEEKER — Matter of F-S-N-, 28 I&N Dec. (BIA 2020)

https://lnks.gd/l/eyJhbGciOiJIUzI1NiJ9.eyJidWxsZXRpbl9saW5rX2lkIjoxMDAsInVyaSI6ImJwMjpjbGljayIsImJ1bGxldGluX2lkIjoiMjAyMDA2MTIuMjI4Nzg3MzEiLCJ1cmwiOiJodHRwczovL3d3dy5qdXN0aWNlLmdvdi9lb2lyL3BhZ2UvZmlsZS8xMjg0ODc2L2Rvd25sb2FkIn0.MlFeLjL3rhv-CztQ06DfqLriAPpnSh2HoL0CN1w84xQ/br/79800749996-l

Matter of F-S-N-, 28 I&N Dec. 1 (BIA 2020)

BIA HEADNOTE:

To prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied based on an adverse credibility finding in the underlying proceedings, the respondent must either overcome the prior determination or show that the new claim is independent of the evidence that was found to be not credible.

PANEL: Board Panel: MALPHRUS and HUNSUCKER, Appellate Immigration Judges; GEMOETS, Temporary Appellate Immigration Judge.

OPINION BY: GEMOETS, Temporary Appellate Immigration Judge

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

Just what this totally dysfunctional system needs: More ideas on how to deny asylum! The only question: Will Respondents lose every case in Volume 18? Don’t bet against it!

PWS

06-13-20

⚖️👍🏼SUPREMES UPHOLD JUDICIAL REVIEW OF CAT DENIAL, 7-2 — NASRALLAH v. BARR, Opinion By Justice Kavananaugh — Round Table ⚔️🛡 Files Amicus For Winners!

NASRALLAH v. BARR, No. 18-432, June 1, 2020

SUPREME COURT SYLLABUS:

OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 18–1432. Argued March 2, 2020—Decided June 1, 2020

Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).

The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.

Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.

(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-

2

NASRALLAH v. BARR Syllabus

moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.

(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.

(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).

The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a

Cite as: 590 U. S. ____ (2020) 3 Syllabus

decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.

762 Fed. Appx. 638, reversed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

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

Score at least a modest victory for the NDPA over the “Deportation Railroad.”

Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice. Here’s a report from Judge Jeffrey Chase:

Hi All: Our Round Table filed an amicus brief in Nasrallah v. Barr. The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.

Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch. Thomas wrote a dissenting opinion that was joined by Alito.

The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).

Gibson Dunn assisted us with the drafting of the brief.

Best, Jeff

And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!

Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.

Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.

PWS

06-01-20

Due Process Forever!⚖️🗽😄

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