"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.
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
From Dan Kowalski @ LexisNexis:
Good morning Dan,
I am writing to let you know that the U.S. Department of Justice, Executive Office for Immigration Review (EOIR), is looking to hire additional immigration judges. I wanted to provide the following information in the event it might be useful to Bender’s Immigration Bulletin subscribers and others who may wish to learn about the immigration judge career path. Could you please provide this information to anyone who you think may be interested?
Sign up to attend a Recruitment Outreach Session – on March 23 and on March 30, sign up to attend a live webinar, where we’ll be explaining how to become an immigration judge. The hour-long sessions are moderated by assistant chief immigration judges, with time for Q&A at the end.
2.The next immigration judge job opportunity announcement is scheduled to open in early April. Individuals may receive a notification when the announcement is posted on USAJOBS, by signing up for EOIR’s Adjudicators Announcement listserv: U.S. Department of Justice (govdelivery.com).
3.For more information on the immigration judge career path, benefits, qualifications, etc., please visit our EOIR Careers webpage.
Thank you so much for your attention and support as we work to hire additional immigration judges.
Kathryn
Kathryn Mattingly
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Assistant Press Secretary
Communications and Legislative Affairs Division
Executive Office for Immigration Review
U.S. Department of Justice
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It’s very encouraging to see EOIR now doing some “affirmative recruiting” to widen and improve the selection pool for these important “life or death” positions. It’s YOUR chance to promote and deliver due process at the most important level of our justice system — the “retail level!” That’s where “the rubber meets the road” (or continues to have “flat tires” as is now the case throughout the Federal Judiciary at all levels.)
I seldom attend any professional gathering these days without being bombarded with “horror stories” and angry complaints about the poor quality of judging, lack of understanding, and absence of practical problem solving skills at all levels of EOIR. NDPAers, this is OUR chance to do more than “just complain” (particularly to me, since I’m not in charge of anything) by improving and diversifying the system “from the ground up,” institutionalizing better interpretations, great applications of law, and best practices in the process!
I also have a vision that at some point in history, a more “with it” Administration that actually understands the cosmic importance of immigration and human rights, takes Constitutional Due Process seriously, has some guts, and views all human lives as mattering, will use the Immigration Courts as a “natural pool” for better Article III judicial appointments.
Additionally, when Article I eventually happens, there inevitably will be some type of “grandfathering” of existing IJs. WHO would YOU like to see “grandfathered” into a new independent system? All of the current incumbents, or a more diverse group including many practical scholars and fearless due process mavens?
As my good friend and neighbor, Professor Alberto Benitez of the GW Law Immigration Clinic always says, “The world is yours!”
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Dan Kowalski reports for LexisNexis Immigration Community:
CA9 on Standard of Review: Umana-Escobar v. Garland
“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”
The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved!
This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.
When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible,the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable!
In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials!
GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️
“Gerardo Caballero-Vega, a Mexican citizen, entered the United States in 1993 without admission or parole by an immigration officer when he was eight years old. He was removed to Mexico in 2019. Shortly after his removal, Caballero-Vega returned to the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture. Later that year, the Immigration Judge (“IJ”) granted his application for asylum, which the Department of Homeland Security (“DHS”) appealed to the Board of Immigration Appeals (“the BIA”). In 2020, the BIA vacated the IJ’s decision for clear error and ordered Caballero-Vega’s removal to Mexico. The following year, Caballero-Vega filed a petition for review in this court. We reverse the BIA’s vacation of the IJ’s decision and remand the case for further review. … Caballero-Vega became a criminal informant for the San Mateo County District Attorney in 2012. He reported to law enforcement on the drug, firearm, and human trafficking conducted by Nuestra Familia, a California prison gang, as well as the Norteño Gang, Nuestra Familia’s “foot soldiers” in the streets. R. Vol. I at 143. Following his informant work, he testified against Nuestra Familia members in criminal court. Caballero-Vega was placed in a witness protection program during and after his testimony. … On November 13, 2019, the IJ granted Caballero-Vega’s application for asylum, finding that he had established a well-founded fear of future persecution based on his membership in the group of “informants who have testified in court against gangs.” … DHS appealed the decision to the BIA. On December 15, 2020, the BIA sustained DHS’s appeal, vacated the IJ’s grant of Caballero-Vega’s asylum, and ordered Caballero-Vega’s removal to Mexico. Specifically, the BIA found that there was “clear error in the [IJ]’s finding that there’s a reasonable possibility that [Caballero-Vega’s] 2012 status as an informant and his 2013 or 2014 United States testimony against United States gang members will be a central reason for possible future harm to [him] upon removal to Mexico.” … We find insufficient the BIA’s explanation for its finding that the IJ’s decision is clearly erroneous. The fact that Caballero-Vega was not persecuted in Mexico is of little-to-no probative value here because he escaped before he could be identified by cartel members. Likewise, the fact that he was not threatened or harmed in the United States following his time as an informant is unhelpful because he was in witness protection for that entire period. Finally, the expert testimony cited by the IJ demonstrates that Mexican cartel members and United States gang members cooperate extensively, so the fact that Caballero-Vega testified against individuals based in the United States, not Mexico, is not dispositive. Thus, none of the reasons the BIA offers for vacating the IJ’s decision justifies the BIA’s finding of clear error. We remand Caballero-Vega’s case to the BIA to accept the IJ’s decision or to provide further justification for its finding that the IJ’s decision is clearly erroneous.”
Asylum was correctly granted in November 2019. 3.5 years later, the case is still kicking around because the wrong “judges” are on the BIA.
Ever wonder why EOIR has unmanageable backlogs? Even when the system works as it should and protection is granted at the initial level, the BIA and their “partners” at DHS Enforcement combine to screw it up! We need Article I!
Dems keep babbling about “Federal Court reform.” But, they can’t even achieve long-overdue progressive reforms to a court system they totally “own!”
Why won’t the Biden Administration govern in accordance with the humane, practical, legal values they ran upon, when it comes to human rights, immigration, and racial justice? Don’t kid yourself! Rather than being “expendable” or “negotiable,” THESE are the issues on which our democracy will eventually stand or fall! That’s something that the younger generation must focus on!
Sessions and Miller wasted almost no time in co-opting and weaponizing EOIR against asylum seekers, migrants, people of color, and even smearing and attacking those defending them. Evil though they were, they had passion and a plan for dehumanization, destruction, and undermining democracy!
Social justice in America needs passionate, brave, principled advocates and defenders! There are plenty of them “out here!” Indeed, My Round Table colleague Judge Ilyce Shugall and I are surrounded by them here at the VIISTA celebration and training at Villanova!
Villanova University President Rev. Peter M. Donohue, Villanova Law Dean Mark Alexander, Professor Michele Pistone, creator and founder of VIISTA Villanova and the CARES Clinic, the VIISTA and CARES alums who have come here from literally every corner of America to celebrate, teach and learn — THEY are passionate about social justice and are actively expanding and defending it. THEY are doing something about the number one immigration problem today — guaranteeing due process through effective representation — by training and turning out “accredited representatives,” highly skilled professional advocates who don’t necessarily have to be lawyers!
Professor Michele Pistone Villanova Law — Creator of VIISTA Villanova Program for training accredited representatives and building nationwide social justice networks. She is passionate about social justice. Why aren’t Biden Administration politicos?
As Father Donohue said at yesterday’s celebration, “‘Woke’ means social justice!” Amazing people have come here from the Southern Border where they work with asylum applicants on both sides of the border. Every day, they see the human trauma, racism, pain, and suffering caused by the Administration’s failure to innovate, lead, and stand up for human rights. These are the preventable human dramas and traumas that smug, ill-informed Administration “policy makers” run away from — they don’t have the courage to face and learn from those they abuse!
Values – human rights and legal rights — CAN’T EVER be “trumped” by “reelection concerns.” I might also add that the “Miller Lite” strategy followed by the Administration hasn’t found supporters or made them friends anywhere on the political spectrum! If you are going to make folks mad, why not at least be doing the right thing? Are competence, innovation, humanity, keeping campaign promises, and following the law REALLY political “losers” as Biden apparently believes? I doubt it!
The Biden Administration and many congressional Dems apparently lack passion and guts! Without the basic governing skills and integrity to undo the horrible human and systemic damage inflicted by Trump and institutionalize due process and fundamental fairness, the Dems are wandering in the social justice wilderness! No passion, no values, no expertise! Doesn’t say much for a party that promised to be a “socially just” alternative to anti-American Trumpist White Nationalism!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — Help get this poor little guy back on his feet! He’s been down far too long!Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Contact: Communications and Legislative Affairs Division Phone: 703-305-0289 PAO.EOIR@usdoj.gov
www.justice.gov/eoir @DOJ_EOIR March 13, 2023
EOIR to Host Recruitment Outreach Sessions Join Us to Learn How to Become an Immigration Judge
SUMMARY: The Executive Office for Immigration Review (EOIR) is looking for qualified candidates from all backgrounds to join our immigration judge corps. Interested parties are invited to attend an information session where senior EOIR staff will discuss the immigration judge career path, duties, qualifications, and benefits of being an immigration judge. You will learn how to apply for immigration judge positions when they become available and have the opportunity to ask questions about the immigration judge position and application process. Please join us for one of the sessions below.
March 16, 2023
March 23, 2023
March 30, 2023
Noon – 1 p.m. Pacific Time Noon – 1 p.m. Central Time Noon – 1 p.m. Eastern Time
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
“I’m gone, but my ‘evil spirit’ lives on in the West Wing! They have even ‘one-upped’’ me with a ‘family separation app’ called CBP One! Never has inflicting gratuitous cruelty been so easy!” Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
The Biden proposal has picked up somewhat tepid endorsements from the likes of Trumpsters DHS official Chad Wolf and leading GOP insurrectionist Rep. Jim Jordan (R-OH). Tells you all you really need to know about just how cruel and counterproductive these harebrained proposals are!
These are the folks that the Biden administration is pandering to while ignoring and disrespecting experts and asylum advocates who have centuries of collective experience working on asylum and the border. They also have plenty of good ideas for real asylum/human rights/border reforms that will combat cruelty and promote orderly compliance with the rule of law. The Biden Administration just isn’t interested in, or perhaps capable of, “doing the right thing.”
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Here’s the text of my “custom revision” of the standard comment posted on the website:
I am a retired US DOJ attorneywith more than 35 years ofgovernment experience, all of it in the immigration field, mostly in senior positions. I have been involved in immigration and human rights, in the public and private sectors, for five decades
My last 21 years were spent as an EOIR Judge: eight years as an Appellate Immigration Judge on the BIA (six of those years as BIA Chair), and 13 years as an Immigration Judge at the (now legacy) Arlington Immigration Court. I was involved in the enactment of the Refugee Act of 1980 as well as developing implementing regulations and setting precedents thereunder.
I state unequivocally that these unnecessary proposed regulatory changes are a disavowal of more than four decades of U.S. (and international) asylum law as well as a shocking betrayal of the promise by the Biden Administration to stand up for the rights of legal asylum seekers and end the White Nationalist attempt by the Trump Administration to kill asylum without legislation.
The proposed rule is contrary to well-established United States law regarding the right to seek asylum in our country. There is absolutely no basis in law for the proposed “presumption of denial” for those who seek asylum outside a port of entry or who have transited other countries (as most have) without seeking asylum.
Indeed, the Administration’s approach is in direct contravention of the INA, which establishes rigorous criteria for designating “safe third countries” for asylum seekers. Only Canada has met those rigorous criteria to date, and even then only for a very limited class of applicants.
The idea that Mexico or other countries in Central America that asylum seekers customarily transit on the way to our southern border are “safe havens” for asylum seekers is patently absurd and counterfactual! Indeed, all legitimate experts would say that these are some of the most dangerous countries in the world — none with a fairly functioning asylum system.
Individuals are specifically entitled by the RefugeeAct of 1980, as amended, to access our asylum system regardless of how they enter, as has been the law for decades. They should not be forced to seek asylum in transit to the United States, especially not in countries where they may also face harm. The ending of Title 42—itself an illegal policy—should not be used as an excuse to resurrect Trump-era categorical bans on groups of asylum seekers.
As you must be aware, those policies were designed by xenophobic, White Nationalist, restrictionists in the last Administration motivated by a desire to exclude and discriminate against particular ethnic and racial groups. That the Biden Administration would retain and even enhance some of them, while disingenuously claiming to be “saving asylum,” is beyond astounding.
The rule will also cause confusion at ports of entry and cause chaos and exacerbate backlogs in our immigration courts. Even worse, it will aggravate the already unacceptable situation by making it virtually impossible for most asylum seekers to consult with pro bono counsel before their cases are summarily rejected under these flawed regulations.
People who cannot access the CBP One app are at serious risk of being turned away by CBP, even if the rule says otherwise. Additionally, every observer has noted that the number of “available appointments” is woefully inadequate. In many cases, observers have noted that this leads to “automated family separation.” Rather than fixing these problems, these proposed regulations will make things infinitely worse.
Additionally, as was demonstrated by the previous Trump Transit Ban, the rule is likely to create confusion and additional backlogs at the immigration courts as individual judges attempt to apply a complicated, convoluted rule.
Under the law, the U.S. Government has a very straightforward obligation: To provide asylum seekers at the border and elsewhere, regardless of nationality, status, or manner of coming to the U.S., with a fair, timely, opportunity to apply for asylum and other legal protections before an impartial, expert, adjudicator.
The current system clearly does not do that. Indeed,EOIR suffers from an “anti-asylum,” often misogynist “culture,” lacks precedents recognizing recurring asylum situations at the border (particularly those relating to gender-based persecution), and tolerates judges at both levels who lack asylum expertise, are not committed to due process and fundamental fairness for all, and, far from being experts, often make mistakes in applying basic legal standards and properly evaluating evidence of record, as noted in a constant flow of “reversals and rebukes” from Circuit Courts.
We don’t need moremindless“deterrence” gimmicks. Rather, it’s pasttime for the Administration to reestablish a functioning asylum system.
🇺🇸Due Process Forever! The treachery of an Administration that abandons humane values, and fears bold humanitarian actions, never!
“Any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny, any reason to deny . . . .” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“For decades, the authoritarian regime in Cuba has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island. Ignacio Balaez Serra, a Cuban immigrant seeking asylum in the United States, maintains he experienced this abuse first-hand after multiple arrests, imprisonments, and beatings by the Cuban police. Serra seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Serra’s application for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and relief under the United Nations Convention Against Torture and Other Cruel Inhumane or Degrading Treatment or Punishment (“CAT”) (together, “Application”). The IJ denied Serra’s Application, finding Serra’s testimony “not credible.” In reaching this adverse credibility determination, the IJ cited two inconsistencies between Serra’s hearing testimony and Application. The first purported inconsistency dealt with the timing of Serra’s passage of a kidney stone; specifically, whether he passed it on the day he was beaten by Cuban police or several days thereafter. The second pertained to the number of countries Serra passed through en route to the United States; he listed ten countries in his written Application but later testified that he traveled through “about 11 or 12.” The IJ also reached his adverse credibility determination based on Serra’s perceived non-responsiveness to certain questions. On appeal, the BIA rejected the IJ’s finding that Serra was non-responsive but affirmed the IJ’s adverse credibility determination based on the two inconsistencies alone. After careful review and with the benefit of oral argument, we conclude the record lacks substantial evidence that would allow us to affirm the adverse credibility determination. We therefore reverse and remand. … [T]he IJ perceived two instances of non-responsiveness and two discrepancies in the record, resulting in an adverse credibility determination. The BIA rejected the IJ’s findings of non-responsiveness. Thus, the IJ’s adverse credibility determination hinged only on two purported inconsistencies in the record. But upon consideration of the totality of the circumstances, it is clear these inconsistences are unsupported by reasonable, substantial, and probative evidence—and thus cannot form the basis for an adverse credibility determination. Therefore, we grant Serra’s petition. We further vacate the BIA’s decision and the IJ’s opinion and remand this case to the IJ to rule on Serra’s applications for asylum, withholding of removal, and relief under CAT in accordance with this opinion. In doing so, the IJ must ensure that all relevant factors are considered—and the totality of the circumstances ascertained—before reaching a conclusion as to credibility. PETITION GRANTED, VACATED and REMANDED.”
[Hats off to Marty High and Joshua Carpenter and Jonathan Morton for amici American Immigration Council and Immigration Justice Campaign!]
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Super congrats to NDPA superstar litigators Marty High, Joshua Carpenter, and Jonathan Morton.
This respondent was a unrepresented before the IJ. Thus, we see another example of how EOIR routinely mistreats pro se litigants and why counsel is a due process necessity even in a very straightforward asylum case like this. Obviously, here, the IJ played the role of “co-counsel” to the ICE Assistant Chief Counsel. Yet, AG Garland has intentionally established “dedicated dockets” and bogus “adjudication timelines” that have been shown to reduce opportunities for representation and diminish the chances of success for asylum seekers.
To borrow a memorable phrase used by my late BIA colleague Appellate Judge FredW. Vacca, “this pathetic attempt at an adjudication” by EOIR was actually defended before the Circuit by the DOJ’s OIL. The glaring problems with immigration and asylum adjudication at DOJ begin at EOIR, but by no means end there.
This case isn’t “rocket science,” nor is it legally or factually complicated. It’s a very straightforward asylum grant to somebody persecuted by Cuba, where, in the words of the 11th Circuit, “[f]or decades, the authoritarian regime . . . has utilized its police force to intimidate and physically assault political dissidents and peaceful demonstrators throughout the island!”
I also note the statutory provision on credibility that the IJ completely bolluxed here and the “any reason to deny” BIA then “rubber stamped” (in part, even while noting that some of the IJ’s analysis was wrong) was part of the REAL ID Act, passed in 2005. That’s 15 years before the the IJ hearing in this case! Heck, I used to give training classes for incoming EOIR JLCs where decisions very much like this IJ’s were used as “teaching examples” of how NOT TO APPLY Real ID! EOIR not only isn’t making “progress,” it’s actually stuck in reverse!
Having spent eight years as an Appellate Judge at the BIA and having reviewed thousands of records, I know that when an IJ goofs up one part of the analysis it’s often indicative of an overall careless, flawed analysis that should be viewed with considerable skepticism. Yet, here the IJ’s “clear error,” acknowledged by the BIA, in basically inventing “unresponsiveness” doesn’t appear to have inspired the BIA to critically examine the rest of the adverse credibility ruling below. On the contrary, it appears to have spurred the BIA to find “any other reason to deny” despite the indication that this was an inaccurate and unreliable analysis by an IJ having a bad day.
It also appears from the Circuit’s decision that there might have been interpretation issues before both the IJ and the Asylum Office. That makes the IJ’s “cherry picking” and “excessive focus on insignificant testimonial inconsistencies” particularly egregious.
The 11th Circuit decision here was written by U.S. District Judge Rodolfo A. Ruiz II, SD FL, sitting by designation. Judge Ruiz is a Trump appointee. He was joined on the panel by Judge Jill Pryor (Obama) and Judge Charles R. Wilson (Clinton) of the 11th Circuit. Thus, apparently the abysmal performance of EOIR is one of the few things capable of uniting and creating “bipartisan agreement among Article III Judges!”
Perhaps Senator Gillibrand is right, and she will be able to obtain sufficient bipartisan support for her Article I Immigration Court bill, which would remove this system from the DOJ’s chronic mismanagement. Seehttps://immigrationcourtside.com/2023/02/17/⚖️🗽-teas-coffee- Because the current situation at EOIR, the continuing indifference to injustice, and its damage to human lives and the law is totally unacceptable!
Also, what about the legal and judicial resources consumed on this and similar cases? Wouldn’t it be great if both the USG and the private sector could “redeploy” them to making the immigration justice system work, rather than correcting sophomoric, yet life threatening, errors? (Admittedly, describing the errors made by DOJ attorneys at all three levels here as “sophomoric” could be viewed as a slight to sophomores everywhere.)
Not only is EOIR’s “any reason to deny” system patently unjust, it’s a colossal waste of public resources! “Bureaucracy 101” — “Get it right at the initial level of the system.”
Of course the battle here hasn’t concluded. The remand gives EOIR yet another opportunity to screw up. Given EOIR’s current indifference to quality and fairness, I wouldn’t count on them to “get it right this time around” — even with Judge Ruiz basically providing them with the correct answer!
The ordeal of Farooqi, who covers politics and national news for News One in Pakistan, exemplifies a global epidemic of online harassment whose costs go well beyond the grief and humiliation suffered by its victims. The voices of thousands of women journalists worldwide have been muffled and, in some cases, stolen entirely as they struggle to conduct interviews, attend public events and keep their jobs in the face of relentless online smear campaigns.
Stories that might have been told — or perspectives that might have been shared — stay untold and unshared. The pattern of abuse is remarkably consistent, no matter the continent or country where the journalists operate.
Farooqi says she’s been harassed, stalked and threatened with rape and murder. Faked images of her have appeared repeatedly on pornographic websites and across social media. Some depict her holding a penis in the place of her microphone. Others purport to show her naked or having sex. Similar accounts of abuse are heard from women journalists throughout the world.
. . . .
This article is part of “Story Killers,” a reporting project led by the Paris-based journalism nonprofit Forbidden Stories, which seeks to complete the work of journalists who have been killed. The inspiration for this project, which involves The Washington Post and more than two dozen other news organizations in more than 20 countries, was the 2017 killing of the Indian journalist Gauri Lankesh, a Bangalore editor who was gunned down at a time when she was reporting on Hindu extremism and the rise of online disinformation in her country.
New reporting by Forbidden Stories found that shortly before her slaying, Lankesh was the subject of relentless online attacks on social media platforms in a campaign that depicted her as an enemy of Hinduism. Her final article, “In the Age of False News,” was published after her death.
. . . .
Until news organizations recognize the purpose of harassment campaigns and learn to navigate them appropriately, experts say, women will continue to be forced from the profession and the stories they would have reported will go untold.
“This is about terrifying female journalists into silence and retreat; a way of discrediting and ultimately disappearing critical female voices,” Posetti said. “But it’s not just the journalists whose careers are destroyed who pay the price. If you allow online violence to push female reporters out of your newsroom, countless other voices and stories will be muted in the process.”
“This gender-based violence against women has started to become normal,” Farooqi said. “I talk to counterparts in the U.S., U.K., Russia, Turkey, even in China. Women everywhere, Iran, our neighbor, everywhere, women journalists are complaining of the same thing. It’s become a new weapon to silence and censor women journalists, and it’s not being taken seriously.”
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“Not being taken seriously” aptly describes the attitude and actions of the Biden Administration toward some women seeking asylum on the basis of gender-based violence. Certainly, our Government could and should do better at recognizing and prioritizing refugee and asylum status for this vulnerable group.
Yet, even this “slam dunk” case took nearly six months to adjudicate. Seems like it could and should have been granted at the interview in a well-functioning system. Better yet, most Afghan refugees could have been screened overseas and admitted in legal refugee status, thus avoiding the backlogged asylum system and freeing both USG and private bar resources for more difficult cases.
Once, America was in the forefront of setting precedents that protected female refugees. See, e.g., Matter of Kasinga, 21 I&N Dec. 357 (1996) (FGM, opinion by Schmidt, Chair). Now, not so much, despite our nation’s heavy involvement with Afghanistan. Apparently, the “powers that be” are afraid that consistently and aggressively supporting refugee protection for women fleeing Afghanistan and other dangerous countries would “encourage” them to actually seek legal protection here thereby upsetting right-wing nativists and misogynists.
Yet, incredibly, the Biden Administration proposes to send up to 30,000 rejected NON-MEXICAN border arrivals per month to Mexico without fair examination of their potential asylum claims. To date, BIA precedents, regulations, and policy statements have NOT recognized the well-documented, clear and present dangers for journalists, women, and particularly female journalists, in Mexico. Consequently, I’d say that there is about a 100% chance that some female journalists seeking asylum will be illegally returned to death or danger, whether in Mexico or their native countries.
Just can’t make this stuff up. Yet, it’s happening in a Dem Administration!
AG Merrick Garland did vacate former AG Jeff “Gonzo Apocalypto” Sessions’s lawless and misogynistic decision in Matter of A-B-. That action “restored” the BIA’s 2014 precedent decision in Matter of A-R-C-G-, recognizing that gender-based domestic violence could be a basis for granting asylum.
However, the BIA didn’t elaborate on the many forms that gender-based persecution can take, nor did they provide binding guidance to Immigration Judges on how these cases should be handled in accordance with due process, fundamental fairness, and best practices.
Garland and his BIA have failed to follow up with any meaningful guidance or amplification of A-R-C-G- for Immigraton Judges. That’s even though many women fleeing Latin America come from countries where gender-based violence is rampant and the governments make little or no effective efforts to control it — sometimes police and other corrupt officials even join in the abuses.
Consequently, life or death protection for female asylum seekers remains a disgraceful and wholly unacceptable “crap shoot.” Outcomes of well prepared and copiously documented asylum cases often depend more on the attitude of the Immigration Judge or BIA Appellate Judge hearing the case than on the law and facts.
Also, without a knowledgeable lawyer, which the Government does not provide, an applicant has virtually no chance of winning a gender-based protection case in today’s EOIR. Additionally, those in immigration detention or placed on Garland’s “accelerated/dedicated” dockets are known to have particular difficulty obtaining pro bono counsel.
Anti-asylum IJs, some of whom were known for their negative attitudes toward female asylum seekers — many of those who actually “cheered” Sessions’s biased and wrong reversal of hard-won asylum protection for women in EOIR courts — remain on the bench under Garland at both levels.
To their credit, some have changed their posture and now grant at least some gender-based cases. But, others continue to show anti-asylum, anti-female bias and deny applications for specious reasons, misconstrue the law, or just plain use “any reason to deny” these claims, without any fear of consequences or meaningful accountability.
Many advocates and experts would say that female asylum applicants still face “trial by ordeal” in Garland’s “overly Trumpy” EOIR. Despite campaign promises, the Biden Administration has done little to champion the cause of gender-based refugees and asylum seekers — at the Southern Border or elsewhere. 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-004160
Whether or not such egregious errors and non-uniform applications of asylum law get reversed at the BIA again depends on the composition of the BIA “panel” assigned to the case. (Not all “panels” have three Appellate Judges; some are “single member” panels). Significantly, and inexplicably, a group of Trump-holdover BIA Appellate Judges known for their overt hostility to asylum applicants (with denial rates approaching 100%) and their particular hostility to gender-based claims, remains on the BIA under Garland. There, they can “rubber stamp” wrong denials while sometimes even reversing correct grants of protection by Immigration Judges below! Talk about a broken and unfair system!
With an incredible backlog of 2.1 million cases, approximately 800,000 of them asylum cases, wrongly decided EOIR cases can “kick around the system” among the Immigration Courts, the BIA, and the Circuits for years. Sometimes, a decade or more passes without final resolution! Imagine being a pro bono or “low bono” attorney handling one of these cases! You “win” several times, but the case still has no end. And, you’re still “on the hook” for providing free legal services.
It’s no wonder that, like his predecessors over the past two decades, Garland builds EOIR backlog exponentially — without systematically providing justice or instituting long overdue personnel and management changes! It’s also painfully clear that, also like their predecessors, Garland and his political lieutenants have never experienced the waste and frustrations of handling pro bono litigation before the dystopian “courts” they are now running into the ground!
Meanwhile, Biden’s promise and directive that his Administration promulgate regulations containing standards for gender-based asylum cases that would promote fairness and uniformity within his OWN courts and agencies remains unfulfilled — nearing the halfway point of this Administration! Apparently, some politicos within the Administration are more fearful of predictable adverse reactions from right-wing nativists and restrictionists than they are anxious to “do the right thing” by listening to the views of the experts and progressives who helped put them in office in the first place!
Thus, abused women and other refugees and asylum seekers, and their dedicated supporters, many of whom have spent “professional lifetimes” trying to establish the rule of law in these cases, face a difficult conundrum. In America today, neither major political party is willing to stand up for the legal and human rights of refugees, particularly women fleeing gender-based persecution.
As an “interested observer,” it seems to me that something’s “got to give” between so-called “mainstream Dems” and progressive immigration/human rights advocates. The latter have devoted too much time, energy, courage, and expertise to “the cause” to be treated so dismissively and disrespectfully by those they are “propping up.” And, that includes a whole bunch of Biden Administration politicos who were nowhere to be found while immigration advocates were fighting, often successfully and against the odds, on the front lines to save democracy during the “reign of Trump.”
That was a time when immigrants, asylum seekers, people of color, and women were the targets for “Dred Scottification” before the law. I have yet to see the Biden Administration, or the Dem Party as a whole, take a strong “active” stand (rhetoric is pretty useless here, as the Administration keeps demonstrating) against those who would use misapplications of the law, ignoring due process, demonization, and refusal to recognize the humanity of migrants as their primary tool to undermine and ultimately destroy American democracy!
Immigrants, including refugees, are overall a “good story” — indeed the real story of America since its founding. That Dems can’t figure out how to tell, sell,advance, and protect the immigrant experience that touches almost all of us is indeed a national tragedy.
Judge Sarah B. Yeomans (Sterling Immigration Court) practiced before me in Arlington.
Judge Alysha M. Welsh (Annandale Immigration Court) worked for Round Tabler Judge (Ret.) Bill Joyce and most recently Human Rights First.
Judge Vimala S. Mangoli (Richmond Immigration Adjudication Center) is long-time Catholic Charities attorney.
Judge Jason E. Braun (Annandale Immigration Court) is most recently from Restoration Immigration Legal Aid of Arlington.
Per Round Table’s Hon.”Sir Jeffrey” Chase:
Judge Abby Anna Batko-Taylor, was appointed to the Falls Church Adjudication Center. Abby Anna while with Texas RioGrande Legal Aid won an unpublished, 39-page, unanimous panel decision [on asylum] in the 5th Circuit (attached) that she unsuccessfully moved that court to publish. The Round Table filed an amicus brief in support of the publication request.
While Garland has not made the long overdue systemic and leadership changes necessary to institutionalize due process, fundamental fairness, expert scholarship, and best practices at EOIR, positive change from below can still take place and will improve the quality of justice, one courtroom at a time! See,https://immigrationcourtside.com/2023/01/12/🇺🇸⚖️👨🏽⚖️👩🏽⚖️🗽-i-want-you-to-be-a-u-s-immigration-judge/. Seeing the “ball go in the basket” 🏀 on the “court of justice” ⚖️ inspires others in the NDPA to keep fighting for human rights, fair treatment of asylum seekers, and due process at the retail level of justice!
Full bios of the new Immigration Judges are available at the above link. Congratulations to all!
“Just a little unpleasantness, harassment, and even basic suffering,” nothing to worry about, say Garland’s EOIR judges! Too many EOIR judges still operate in an “alternate reality” where legal rules, humanity, logic, and common sense are suspended! Wood engraving by A.F. Pannemaker after B. Castelli. Creative Commons Attribution 4.0 International license.
In March 2014, Hernandez-Martinez was on his way to work when two men approached him, demanding money and threatening to kill him if he did not pay. Hernandez-Martinez did not know who the men were. The men told him that they knew where he lived and would harm him or his wife if he did not comply. They also instructed him not to go to the police.
Hernandez-Martinez went to the police later that day. Two police officers told Hernandez-Martinez not to be afraid because they would “take matters into their own hands,” and they offered to drive him home. Instead, they delivered him to the men who had threatened him earlier. The men hit Hernandez-Martinez in the face, cut his waist with a knife, burned his right foot with motorcycle exhaust, dragged him, repeated their threats, and beat him senseless. The police appeared to know his assailants and laughed while the men were assaulting him. Hernandez-Martinez recovered consciousness in a hospital, where he stayed for three or four days. When he had sufficiently recovered, he promptly fled to the United States to join his wife and then four- or five- year-old son, who had already made the journey.
. . . .
The IJ’s reasons are not at all clear. She more or less simply stated the elements of a CAT claim and asserted that Hernandez-Martinez did not establish those elements without specifying which elements were found wanting, or why.2 In addressing the asylum claim, the IJ did comment on the severity of harm inflicted on Hernandez-Martinez, stating that the abuse he suffered did not “rise above the level of unpleasantness, harassment, and even basic suffering.” We agree with the government that were this a supportable description of the harm inflicted, it would not support a CAT claim. We disagree, though, that the facts found support such a description. More to the point, as a matter of law we reject the implicit claim that the harm visited upon Hernandez-Martinez was not severe enough to qualify as torture.
. . . .
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It’s actually pretty hard to get a “rise to the level of torture” case wrong as a matter of law! But three levels of Garland’s DOJ managed to pull it off!
EOIR’s “holdover Ashcroft/Sessions/Barr era” deny every CAT claim approach seems to be running into problems in the “real” Federal Courts. Nothing that competent BIA Appellate Judges couldn’t solve. But, don’t hold your breath!
This absurdist CAT “adjudication” and its beyond absurd, unethical defense by OIL (“doesn’t even rise to the level of persecution,“ citing inapposite cases, gimmie a break) falls below minimum legal and professional standards in every conceivable way: at the IJ, the BIA (“summary affirmance”), and OIL!
That nearing the halfway point of the Biden Administration there is no Senate-confirmed Assistant AG running the all-important Civil Division, which supervises OIL, shows just how grossly deficient and indolent Dems’ approach to “justice at Justice” has been — both within the Biden Administration and in the Senate.
This stunningly defective, shallow, basically non-existent “analysis” by this IJ shows an out of control system where judges feel free to enter defective deportation orders in life or death cases without much thought and without fearing any accountability from the BIA. The latter obviously is an “any reason to deny” assembly line where clearly unacceptable performance by IJs is “rubber stamped” so long as the result is “deny and deport!”
What’s happening at Garland’s EOIR is analogous to a patient going into the hospital for knee replacement, getting a lobotomy by mistake, and dying to boot. Yet, the “hospital administrator “ shrugs it off as just “business as usual,” a “minor mistake” — “good enough for surgery” and lets the team of quacks keep operating and killing folks!
Gosh, even lesser legal luminaries like Gonzalez and Mukasey finally “got” that EOIR was totally out of control and off the wall in the aftermath of Ashcroft’s “due process purge” and mal-administration. They actually took some “corrective action,” even if largely ineffectual and mostly cosmetic.
It’s also no accident that a disproportionate amount of EOIR’s bad judging and docket mismanagement is inflicted on migrants of color, particularly those from Latin America and Haiti, and their representatives. Much as the Biden Administration tries to ignore it, there is a clear connection between institutionalized xenophobia and racial bias in our immigration system and the problematic state of racial justice elsewhere in the U.S.
Obviously, there is expert judicial talent on the EOIR bench and in the private sector that could be recruited and elevated to fuel a “due process, great judging, and best practices renaissance” in this dysfunctional, inherently unfair, and grotesquely mal-administered system! But, equal justice and minimal professional standards at EOIR can’t wait! Lives are going down the drain, and wasteful corrections and “Aimless Docket Reshuffling” further cripple this already “rock bottom” system every day.
Garland must finally “swap out the deadwood and under-performers” at the BIA and senior management at EOIR HQ in Falls Church. He needs to bring in the available, proven talent from both Government and the private sector to lead and guide his mockery of a court system back to at least a minimal level of competence, professionalism, and accountability.
It’s well within Garland’s authority to “end this disreputable, deadly ‘clown show’ at EOIR!” Dems both inside and outside Government should be demanding reforms and accountability!
“The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.” PHOTO: Creative Commons 4.0
Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:
Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.
This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?
While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.
Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.
Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!
I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!
Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.
So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit.SeeBah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).
Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!
More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.
Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.
Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.
But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.
And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.
Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expertIJ handling a non-detained docket.
That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”
As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.
But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”
That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing forupcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.
Johnathan Chair Political Columnist NY Magazine PHOTO: Facebook
Johnathan Chait @ The Intelligencer:
There is an enduring pattern in American conservatism in which the right first develops a paranoid interpretation of the liberal Establishment, and then reverse engineers its own version of the monster it has imagined. Conservatives convinced themselves that the mainstream media and universities were mere propaganda organs, then created institutions like the Heritage Foundation and Fox News, warped reflections of their own overheated critique. The January 6 insurrection was, of course, in the mind of its participants, a “response” to the imagined vote-fraud conspiracy and its antifa/BLM shock troops.
John Durham’s investigation is a classic episode in this tradition. The American right first convinced itself that Robert Mueller and the deep state, using the cover of dispassionate professionalism, had launched a partisan witch hunt to smear Donald Trump. In response, it created a right-wing mirror image, as fervently partisan and unhinged as they believed their enemies to be.
The New York Times has a deeply reported narrative showing how Durham’s counter-investigation of the Russia probe, cooked up by William Barr at Donald Trump’s urging, was just as abusive, partisan, and unhinged as Trump’s defenders made Mueller out to be.
The purpose of special counsel is to wall off a politically sensitive investigation from the attorney general. But Durham, reports the Times, was working closely with Barr behind closed doors all along. The two Republicans dined and drank together, and came to share Barr’s Fox News–brained beliefs that Trump had been the victim of a conspiracy.
Rather than preventing Barr from meddling in a politicized investigation, this arrangement inverted that purpose and laundered Barr’s involvement through Durham’s putative independence. “At some point, some particularly ill-informed critic of the administration may try to paint Durham as a right-wing hack or Republican loyalist,” wrote National Review’s Jim Geraghty in a fawning profile, singling out the NAACP’s Sherrilyn Ifill for having the temerity to suggest Durham might have been compromised by serving Trump’s ends.
Durham and Barr kept failing to prove the deep-state conspiracy they imagined, but continued to press forward anyway. At one point they seized upon hacked Russian memos that intelligence analysts deemed obviously fake, instead treating them as a valuable intelligence trove, and tried to prove it out, even harassing one of the targets to obtain his emails (which contained nothing incriminating). It weirdly reflected the Trumpist accusation that Robert Mueller had been tricked into pursuing Russian disinformation.
As Durham kept failing to find support for the conspiracy he was pursuing, and which Barr kept floating in public, his deputies chafed at his obsession. Eventually, one of them resigned in protest when he brought charges against Michael Sussmann, a target of the right. As his former lieutenants expected, Durham’s case was defeated in court.
. . . .
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Read the complete article at the link.
Immigration advocates didn’t need a NY Timesinvestigation to tell you that Barr was corrupt! Biased anti-immigrant, anti-asylum “AG precedents;” BIA “Appellate Judges” appointed for their unusually high asylum denial rates and known hostility to migrants and their attorneys; Immigration Judges appointed without expertise in immigration and human rights, overwhelmingly from the ranks of prosecutors; busting the IJ union (“NAIJ”) for speaking out against DOJ’s politicized mismanagement; issuing an EOIR “Fact Sheet” full of lies, misrepresentations, and myths; appointing politicized managers at EOIR without judicial or due process qualifications; taking ethically questionable litigating positions in Federal Court; the list of Barr’s abuses of authority on immigration and human rights goes on and on!
AG Merrick Garland has made a few ameliorative changes. Some of the worst precedents have been overruled; some unqualified political senior executives been removed or reassigned; over time, judicial selection has been shifted to a more balanced, merit-based system that has resulted in the appointment as Immigration Judges of some widely-recognized experts, with experience representing individuals, and a demonstrated commitment to due process for all; “numerical quotas” for IJs have been eliminated. (Curiously, however, Garland “honored” 17 “transition” Barr judicial selections made under badly flawed selection criteria!)
Yet, overall, EOIR remains largely the disaster zone that Barr left behind. Trump-era anti-asylum Appellate Judges continue to dominate the BIA; many Trump-era IJs still misapply basic immigration legal standards and operate “asylum free zones;” management is weak; training is inadequate; dockets are out of control; respondents and their attorneys are treated unprofessionally; quality control is largely nonexistent; wildly inconsistent “refugee roulette” asylum adjudication remains; an enforcement-skewed culture of “any reason to deny and deport” continues to infect EOIR at all levels; “numbers” are emphasized over quality and fairness; and the DOJ’s OIL often defends indefensible EOIR decisions in Federal Court on the apparent rationale that “it’s only migrants’ lives at stake, so who cares!”
Unhappily, the Biden Administration has barely “scratched the surface” of the badly needed and long overdue common sense reforms needed at EOIR and the DOJ to put the Sessions/Barr abuses behind us and move forward! Barr was a bad AG; but, his ghost continues to haunt the DOJ and those seeking equal justice for all!
BIA Asylum Panel cutting down the backlog by trampling asylum seekers and their legal rights! Guatemalans are a favorite target for Garland’s “Band of Bullies” at EOIR. Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
CA3 on Guatemala, Law, Facts and Standard of Review: Saban-Cach v. Atty. Gen.
Saban-Cach v. Atty. Gen.
“Based on past experiences, if returned to Guatemala, Selvin Heraldo Saban-Cach fears being persecuted by a local gang because of his identity as an indigenous person. Accordingly, he seeks withholding of removal under the Immigration and Nationality Act and protection from removal under the Convention Against Torture. The Immigration Judge denied his applications and ordered his removal, and the Board of Immigration Appeals affirmed. This petition for review followed. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. … Although the BIA need not write an overly detailed explanation of its review of an IJ’s decision, it must provide an adequate explanation of its ruling and afford us an opportunity to review it. Here, the BIA did neither. At times, the IJ’s decision completely conflicts with the record. Yet, for reasons that are not at all apparent, the BIA affirmed the IJ’s decision in its entirety. … The BIA must review the first, factual question for clear error and the second, legal question de novo. In affirming the IJ’s decision of the second question regarding acquiescence, the BIA concluded that it found “no clear error in the [IJ]’s predictive fact-finding.” Accordingly, in addition to not bifurcating the Myrie step-two inquiry, the BIA also erred by applying this heightened standard of review to a legal question. Because of these errors, “we have little insight into the basis for [the BIA’s] determination that the IJ’s opinion ‘clearly reflects that [s]he used the proper “willful blindness” standard in relation to the issue of acquiescence.’” Accordingly, on remand the BIA needs to reassess each question.”
[Hats way off to Stephanie Norton, CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall!]
Stephanie Norton CSJ Practitioner-in-Residence, Detained Immigrant Project Education, Seton Hall Law PHOTO: Seton Hall Law website
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Congratulations to NDPA star Stephanie Norton! This is yet another example of the great talent “out here” who could replace mal-functioning EOIR judges. Human lives are at stake, this system is dysfunctional, crying out for bold reforms! Wonder how the Dems will try to “spin” their miserable performance at EOIR in 2024?
The IJ’s and BIA’s findings of “no past persecution” in this case rise to the level of absurd! Here’s what happened:
The BIA recognized that gang members had attacked Saban-Cach on multiple occasions and that the worst attack left him unconscious after he was stabbed with a broken glass bottle. However, the BIA agreed with the IJ that, in the aggregate, this abuse did not rise to the level of persecution. The BIA explained that, “because most of the incidents did not involve physical injuries, and because the worst attack did not require him to seek professional medical care for his physical injuries, the applicant did not establish harm rising to the level of past persecution.”
Come on man! No competent, fair minded judge would reach such a totally ridiculous conclusion based on such shallow, specious, and basically “made up reasoning!” Not incidentally, it also directly conflicted with Circuit precedent as well as with the realities of life in Guatemala!
The BIA also ran roughshod over its OWN binding precedent, Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) (cumulative harm is persecution), which should have made a finding of past persecution a “no brainer” for a panel of competent asylum adjudicators! The sloppy, biased, “any reason to deny” culture at EOIR is a major cause of their out of control backlog. Efforts to deny easily grantable cases, and failure to direct wayward asylum-denying IJs to get it right in the first place, is a drag on our entire justice system — all the way up to the Courts of Appeals!
That’s because EOIR’s “any reason to deny” approach to asylum encourages, and often rewards, frivolous litigating positions by ICE, discourages stipulations and settlements in cases that should easily be granted, and results in OIL taking ethically and legally flawed positions in the Courts of Appeals. For example, in this case the 3rd Circuit characterized parts of OIL’s position as “disingenuous,” “puzzling and disappointing,” and pointedly stated that “[r]egrettably, the government’s response brief doubles down on this inaccuracy.”
So, these are the legal quality and ethical standards set at DOJ by AG Merrick Garland, a former Circuit Judge himself who certainly should be expected to “know better.” Apparently, in his view, due process, fundamental fairness, impartial adjudication, adherence to the law, judicial and legal ethics don’t apply when it’s “only migrants” whose lives are at stake! While this is a common approach from White Nationalist GOP politicos, don’t we deserve better from a Dem Administration that claims to care about racial justice, but whose actions with respect to migrants say otherwise?
The court also blasted EOIR for “ethnocentric” judging and failure to fairly evaluate cases.
We have previously cautioned IJs and the BIA against ethnocentric evaluations of petitioners’ resources. Petitioners primarily come from countries in the poorest and most dangerous regions of the world. Any presumption that they enjoy the same kinds of resources as their adjudicators is shortsighted and unfair. Unless the record supports it, IJs and the BIA should not assume that their own views of appropriate medical care and its ready accessibility make up a universal reality.
Petitioners for relief under the asylum system must be afforded the just hearing that due process and basic fairness demands. The immigration system can only provide a fair and neutral determination of the claims of people from different cultural and economic circumstances if adjudicators diligently avoid unrealistic assumptions about petitioners’ circumstances.
Any competent asylum practitioner would understand what the court is getting at. But, EOIR IJs at both the trial and appellate level make these basic mistakes time after time.
The 3rd Circuit and other courts might claim to find the BIA’s “entire” affirmance of a decision often in “complete conflict” with the record to be inexplicable. But, WE know that it’s because the “deportation assembly line” works on the “principle” of “any reason to deny” and “keep cranking out those final orders of removal.” To Hell with justice, quality, fairness, and the human lives involved!
This disasterous, backlogged, “star chamber system” is neither appropriately staffed nor competently operated to afford individuals “the just hearing that due process and basic fairness demands.” How is this due process and fundamental fairness required by our Constitution?
“Justice” Star Chamber Style. — AG Merrick Garland appears to be blissfully unconcerned about the methods applied by too many of his EOIR “judges,” and his DOJ attorneys who “run interference” for them, to achieve “removal for any reason, at any cost!”
Until a court has the guts to “pull the plug” on EOIR’s ongoing, deadly clown show 🤡, declare it unconstitutional, and require at least minimal due process reforms, these outrages will continue! “Puzzling” about recurring miscarriages of justice at EOIR, as the 3rd Circuit did here, is one thing; acting decisively to enforce the Constitution by stopping the abuse, once and for all, is quite different. Requiring EOIR judges with demonstrated expertise in asylum law, willing to professionally review records, and decide cases of asylum seekers correctly, without “ethnocentrism” or bias, would be a logical starting point! It should be a “no brainer!”
“When you walk into your EOIR ‘courtroom’ and this guy takes the bench, you’re probably in for a BAD day! Isn’t it time to finally END the ‘Clown Show’ in our dystopian Immigration ‘Courts?'” PHOTO: Clown Civertan.jpg, Creative Commons License
Immigration Courts across the U.S. have been randomly rescheduling and advancing cases without regard to attorney availability or whether we have the capacity to complete our cases. The very predictable result of this fiasco is that lawyers are stressed and overworked, our ability to adequately prepare cases has been reduced, and–worst of all–asylum seekers are being deprived of their right to a fair hearing. Besides these obvious consequences, the policy of reshuffling court cases is having other insidious effects that are less visible, but no less damaging. Here, I want to talk about some of the ongoing collateral damage caused by EOIR’s decision to toss aside due process of law in favor of reducing the Immigration Court backlog.
As an initial matter, it’s important to acknowledge that the Immigration Court backlog is huge. There are currently more than 2 million pending cases, which is more than at any time in the history of the Immigration Court system. To address this situation, EOIR (the Executive Office for Immigration Review – the office that oversees our nation’s Immigration Courts) has been working with DHS (the prosecutor) to dismiss low-priority cases, where the non-citizen does not have criminal issues or pose a national security threat. Also, the U.S. government has been doing its best to turn away asylum seekers at the Southern border, which has perhaps slowed the growth of the backlog, but has also (probably) violated our obligations under U.S. and international law.
In addition, EOIR has been hiring new Immigration Judges (“IJs”) at a break neck pace. In the past few years, there has been a dramatic increase in the number of IJs nationwide, though some parts of the country have received more judges than others. In those localities with lots of new IJs, EOIR has been advancing thousands of cases. The goal is to complete cases and reduce the backlog. Why EOIR has failed to coordinate its new schedule with stakeholders, such as respondents and immigration attorneys, I do not know.
What I do know is that EOIR’s efforts have created great hardships for attorneys and respondents (respondents are the non-citizens in Immigration Court). Also, I expect that this whole rescheduling debacle will have long-term effects on the Immigration Courts, as well as on the immigration bar.
The most obvious effect is that lawyers and respondents simply do not have enough time to properly prepare their cases. When a hearing was set for 2025 and then suddenly advanced to a date a few months in the future, it may not be enough time to gather evidence and prepare the case. Also, this is not occurring in a vacuum. Lawyers (like me) are seeing dozens of cases advanced without warning, and so we have to manage all of those, plus our regular case load. So the most immediate consequence of EOIR’s policy is that asylum seekers and other respondents often do not have an opportunity to present their best case.
Perhaps less obviously, lawyers are being forced to turn work away. We can only competently handle so many matters, and when we are being assaulted day-by-day with newly rescheduled cases, we cannot predict our ability to take on a new case. In my office, we have been saying “no” more and more frequently to potential clients. Of course, this also affects existing clients who need additional work. Want to expedite your asylum case? Need a travel document to see a sick relative? I can’t give you a time frame for when we can complete the work, because I do not know what EOIR will throw at me tomorrow.
One option for lawyers is to raise prices. We have not yet done that in my office, but it is under consideration. What we have done is increase the amount of the down payment we require. Why? Because as soon as we enter our name as the lawyer, we take on certain obligations. And since cases now often move very quickly, we need to be sure we get paid. If not, we go out of business. The problem is that many people cannot afford a large down payment or cannot pay the total fee over a shortened (and unpredictable) period of time. The result is that fewer non-citizens will be able to hire lawyers.
Well, there is one caveat–crummy lawyers will continue to take more and more cases, rake in more and more money, and do very little to help their clients. Such lawyers are not concerned about the quality of their work or doing a good job for their clients. They simply want to make money. EOIR’s policy will certainly benefit them, as responsible attorneys will be forced to turn away business, those without scruples will be waiting to take up the slack.
Finally, since EOIR is increasing attorney stress and burnout to untenable levels, I expect we will see lawyers start to leave the profession. I have talked to many colleagues who are ready to go. Some are suffering physical and mental health difficulties due to the impossible work load. Most immigration lawyers are very committed to their clients and have a sense of mission, but it is extremely difficult to work in an environment where you cannot control your own schedule, you cannot do your best for your clients, you cannot fulfill your obligations to your family and friends, and where you are regularly abused and treated with contempt. Long before EOIR started re-arranging our schedules, burnout among immigration lawyers was a serious problem. Today, that problem is exponentially worse, thanks to EOIR’s utter disrespect for the immigration bar. I have little doubt that the long term effect will be to drive good attorneys away from the profession.
For me, the saddest part of this whole mess is that it did not have to be this way. EOIR could have worked with attorneys to advance cases in an orderly manner and to ensure that respondents and their lawyers were protected. But that is not what happened. Instead, EOIR has betrayed its stated mission, “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws.” Respondents, their attorneys, and the immigration system are all worse off because of it.
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Jason Dzubow The Asylumist
“For me, the saddest part of this whole mess is that it did not have to be this way.” Amen, Jason! Me too! And, I think I speak for most, if not all, of my esteemed colleagues on the Round Table of Former Immigration Judges and BIA Members.”⚔️🛡
In addition to betraying its mission “to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws,” EOIR has trashed its noble once-vision: “Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all!”
The use of the word “uniformity” in EOIR’s “mission” is an absurdity given the “range” of asylum denials fostered and tolerated by Garland’s dysfunctional system: 0-100%! It’s also understandable, if unforgivable, that EOIR no longer features words like “due process,” “fundamental fairness,” “teamwork,” and “innovation” prominently on its website!
A Dem AG is attacking our American justice system and the legal profession at the “retail level” and causing real, perhaps “irreparable,” damage! What’s wrong with this picture? Everything! What are we going to do about it? Or, more appropriately, what are YOU going to do about it, as my time on the stage, and that of my contemporaries, is winding down?
All of these particularities matter, because once all available options have been exhausted, cases generally end up inside an immigration court before an immigration judge. The administrative snarls that predate a case before it arrives in immigration court are thus a result of policy from the top, for better or worse.
On paper, courts are supposed to be independent bodies. They are supposed to be immune from the political agendas of other government operatives or serve as independent mediators that can rectify previous errors.
But immigration courts are not. As a part of the Justice Department, at the end of the day, they work under the attorney general. While other courts function under a de jure practice of independence, immigration courts are held to the same standard despite not possessing the same protections that allow other judges to carry out their basic job functions. This creates an impossible work environment for immigration judges to fairly adjudicate every case with the attention it deserves. Instead, their measurements of success are based on accomplishing the president’s goals, which are translated into quotas for immigration courts. For example, Biden administration officials touted removing 1.3 million migrants last year.
As the Prospect has previously reported, immigration judges have long pointed out the tenuous environment they must work in.
But later this month, the Federal Labor Relations Authority (FLRA) will be hearing from the National Association of Immigration Judges (NAIJ) over whether or not their union will be reinstated. The FLRA will now have a majority of Biden appointees.
A dysfunctional immigration system can only start to work with independent courts. But that change can only happen through congressional action. In the meantime, a never-ending crisis at the border can be exploited by one party, as the other expands the needlessly punitive immigration practices of the previous administration.
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Many thanks to prodigious immigration commentator Nolan Rappaport for passing this along to me.
There is consensus among experts that an independent Article I Immigration Court is urgently needed and long overdue. There is also a consensus that the chance of achieving this critical legislative change with a GOP-controlled House is zero. At the same time, we must remember that Dems didn’t exactly give any priority to this essential and far-reaching reform when they had “unified control” over the political branches.
There is also consensus that in the absence of Article I there are things that Garland and the Biden Administration could and should have done administratively that would have drastically improved the due process, expertise, quality, efficiency, “customer service,” and professionalism of EOIR.
Gee whiz, a Harvard Law student figured it out! They haveconstructive suggestions for administrative reforms to change culture, improve training, place docket control in the hands of judges not politicos and bureaucrats, increase independence, improve quality, and insulate IJs from the political whims and enforcement agendas of each Administration. Seehttps://wp.me/p8eeJm-8hE?
But, a Harvard Law grad, long-time Federal Judge, and Supremes’ nominee, and his band of supposedly smart and high-powered political lieutenants couldn’t or wouldn’t get it done for a Dem Administration? Gimmie a break!
A Dem Administration that was supposed to get us beyond the cruelty, White Nationalism, xenophobia, and “malicious incompetence” of the Trump Administration falls flat on its face on a critical and achievable part of immigration reform and racial justice in America! Go figure!
Meanwhile, the cries of pain keep coming from those subjected to Garland’s dystopian “courts!”
Had an “interesting” IH today with this IJ. [IJ] denied my motion to continue the case by email the evening before the 8:30 am hearing, even though I had four IHs scheduled in the same time slot and had filed a motion to continue a month before the hearing. [IJ] refused to grant me a few minutes to speak with OPLA counsel before the hearing to narrow issues, saying that discussion should have already taken place. [IJ] spent an inordinate amount of time on housekeeping issues. [IJ] read a list of “rules.” [IJ] would insist that counsel stand when they spoke. [IJ] would routinely deny motions for webex hearings. [IJ] went through the biographical information excruciatingly slowly, including having the respondent spell the names of all the riders, provide their birth dates, etc.
It was a case where DHS had stipulated to 42b and the only issue would’ve been discretion but the IJ didn’t care. [IJ] told me to let everyone know that [IJ] reads each and every single document submitted in . . . court from back to front and . . . has a lot of questions . . . . [IJ] went on to conduct a full hearing, chastised DHS for stipulating, made a big deal of every little thing, asked irrelevant questions about medicaid forms that [client] may have filled for her children (not included as part of evidence), insinuated that she committed medicaid fraud, and made the ACC change position on each and every issue.
[The IJ] denied the asylum application of a young gay man from El Salvador. This is a first for me, in my 20+ years of asylum practice. We’ve never lost such a case that I can recall.
The facts are pretty typical – the kid lived a life of humiliation and abuse in El Salvador due to his sexual orientation; tried to commit suicide several times; and ultimately left the country when the Mara 18 tried to get him to deliver marijuana for them. Arguably, not a strong case for past persecution, but such cases typically prevail where a judge fairly evaluates a claim of well-founded fear of future persecution and considers the country condition reports and articles about the horrendous human rights abuses against the LGBT community in El Salvador. This didn’t fly with IJ. [IJ] simply said “there is no meaningful evidence in the record to demonstrate that the Respondent would experience harm amounting to persecution in El Salvador” and then went on to say that the client would likely experience more bullying and discrimination, but that doesn’t mean it would be persecution. [IJ] did not mention any country conditions report or article from the record to support his ruling.
[T]he DHS attorney called me directly after the hearing to empathize and tell me that it’s well-known even on their side that this judge is a piece of work and it’s always a good idea to take PD if offered.
[T]his judge is a menace. I don’t know what to do to protect my clients from [IJ] other than prepare strong BIA appeals.
This is the third email I have received to schedule MORE cases. No one will tell me what the goal is. I’ve put them on notice of the health issues this is/has been causing me.
Please tell the higher ups that this practice of overscheduling the private bar is taking a serious toll on practitioners’ health. Medical documentation is below and attached. I’m really not sure why the court has felt the need to overschedule practitioners to this level, but it is really taking a serious toll on everyone. Can someone please shed light on this urgent need to overwhelm the limited number of defense attorneys we have in the area?
Another outstanding Immigration Court practitioner told me that they had left courtroom practice and taken a “research and writing” position because the EOIR courtroom “experience” under Garland was so dehumanizing, demoralizing, stressful, and life consuming!
A different attorney called me with concerns that an IJ’s “over the top” abuse of pro bono counsel would discourage others from taking cases in Immigration Court.
IJ’s wasting time; discouraging negation and stipulation by parties; taking over hearings; abusing continuance discretion; failing to abide by Cardoza & Mogharrabi; showing bias; producing wildly inconsistent anti-immigrant results; showing thin knowledge of law; rudely treating counsel and clients; over-scheduling; abusing power; endangering the health of those appearing before them; driving practitioners to leave the EOIR courtrooms; discouraging pro bono!
Everything that is NOT what a fair, independent, court of law should be is present and allowed, perhaps even encouraged, in Garland’s broken EOIR! Why is this type of grotesque mismanagement, bad judging, unprofessional conduct, and disregard of fundamental due process “business as usual” under a Dem Administration?
This “star chamber” system needs new, expert, progressive, due-process-focused, free from political hackery and inane gimmicks, “kick-ass” management! Garland isn’t getting the job done!
These younger progressives are exactly the “core support” that Dems will need to win future elections! How does “dissing” them with inept leadership and ineffective nativist-derived immigration policies help the cause?
Honestly, what a mess! Garland’s dystopian EOIR is the Democratic Party’s shame!
