JOE PATRICE @ ABOVE THE LAW: WE NOW HAVE “SCIENTIFIC PROOF” THAT IMMIGRATION LAWYERS ARE “INCREDIBLY USEFUL” — IN FACT, THEY ARE ESSENTIAL TO DUE PROCESS — So, Why Are Sessions & His Minions Smearing Lawyers & Trying To Railroad More Migrants Through The System Without Fair Hearings?

https://abovethelaw.com/2017/11/we-have-scientific-proof-that-lawyers-are-incredibly-useful/

Patrice writes:

“So instead of fighting whether or not the feds can order cops to bust up the local Motel 6, cities can just hire some lawyers.

This is the lie of every talking head that praises building a wall but adds, with all faux sincerity, that they have “no problem with legal immigrants.” Almost half of the people shuttled through assembly line deportation hearings actually fit within legal immigration protections, but the complexity of the system — not to mention language barriers — make them victims of the bureaucracy.

If that projection is correct, NYIFUP cases result in immigrant victories 48 percent of the time. As Oren Root, director of the Vera Institute’s Center for Immigration and Justice, puts it, that means that of every 12 immigrants who are winning at Varick Street right now, 11 would have been deported without a lawyer.

That finding challenges a widely held assumption about immigration court: that most immigrants who go through it don’t qualify for the types of protection that Congress has laid out for particularly compelling cases. The Vera finding implies that, in fact, many immigrants do deserve relief as Congress and the executive branch have established it — but that hundreds of thousands of them have been deported without getting the chance to pursue those claims.

New York’s program has inspired 12 more cities to adopt the program. It’s put up or shut up time for the Department of Justice — if they’re really committed to proving some undocumented migrant is in violation of the law, then stand up and make that case in court.

Against a real attorney.

Unless they’re chicken.”

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

Read the complete article at the link. I have previously reported on the VOX News Article and the Vera study.

I think Patrice has hit the nail on the head. Sessions, Miller, Bannon and the White Nationalist crowd are biased bullies picking on the most vulnerable and disadvantaged. Like all bullies, they have absolutely no desire to compete fairly on a level playing field.

The Vera report confirms what many of us involved in the field have been saying for years: a significant portion of those going through Immigration Court, probably 50% or more are entitled to be in the US. Without lawyers, such individuals have little or no chance of making and succeeding on claims that would allow them to stay. Since at least one-third of individuals (and a much higher percentage of detained individuals) are unrepresented, we are unlawfully removing tens of thousands of individuals each year, in violation of due process. And nothing aggravates this unfairness more than unnecessary detention (in other words, the majority of immigration detention which involves individuals who are not criminals, security threats, or threats to abscond if they are represented and understand the system).

A competent and conscientious Attoyney General would work cooperatively with private bar groups, NGOs, and localities to solve the representation crisis and drastically reduce the use of expensive and inhumane immigration detention. But, Sessions is moving in exactly the opposite direction, in violation of constitutional principles of due process, practical efficiency, and basic human decency.

PWS

11-13-17

REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!

https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer

Dara Lind reports for VOX

“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.

His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.

Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”

But Siagha’s access to a lawyer in immigration court is the exception.

There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.

But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.

The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.

According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.

So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)

Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.

As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.

The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.

From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.

But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.

This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”

I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”

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

Read Dara’s full article at the link.

No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and reasonable access to competent counsel.

I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.” Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.

I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)

When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.

That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.

By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!

In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.

No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.

The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.

Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.

I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!” They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.

Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!

PWS

11-10-17

DOJ PLANS TO CUT U.S. IMMIGRATION COURT BACKLOG IN HALF BY 2020 — CONTINUES TO PRESS BOGUS CLAIM THAT BACKLOGS DRIVEN BY PRIVATE ATTORNEYS — THE TRUTH: BACKLOGS DRIVEN PRIMARILY BY POOR DECISIONS BY CONGRESS (E.G., USG SHUTDOWN) & “AIMLESS DOCKET RESHUFFLING” BY THE DOJ OVER THE PAST THREE ADMINISTRATIONS, INCLUDING THIS ONE!

https://www.washingtonpost.com/local/immigration/doj-details-plan-to-slash-immigration-court-backlog/2017/11/03/03fcef34-c0a0-11e7-959c-fe2b598d8c00_story.html

Maria Sacchetti reports in the Washington Post:

“The Department of Justice said Friday it is aiming to slash the massive immigration court backlog in half by 2020 by adding judges, upgrading technology and refusing to tolerate repeated delays in deportation cases.

Officials, who briefed reporters on condition that they not be identified by name, said the effort is part of the Trump administration’s broad plan to more efficiently handle cases of undocumented immigrants, who number 11 million nationwide.

The administration has reversed Obama-era policies that allowed prosecutors to indefinitely postpone low-priority cases, which the Justice Department officials said allowed some immigrants to delay “inevitable” deportations. In other cases, they said, immigrants who deserved to win their cases were delayed for years because of the backlog.

The immigration court backlog has tripled since 2009, the year former president Obama took office, to more than 630,000 cases in October.

“That is what this administration is committed to, getting this done right, ensuring that we’re never in this place again,” a Justice Department official said. “Really and truly, when you look at the numbers . . . it reflects the fact that the last administration likely wasn’t as committed to ensuring that the system worked the way that Congress intended it to.”

The agency, which oversees the administrative immigration courts, said it plans to hire new immigration judges, use technology such as videoconferencing, and increase judges’ productivity by setting case-completion guidelines, though officials would not give details.

The department also will have a “no dark courtrooms” policy, the officials said, explaining that there are at least 100 courtrooms nationwide that are empty every Friday because of judges’ alternate work schedules. The Justice Department is tapping retired judges to fill those courts.

The immigration court overhaul comes as the Trump administration is carrying out policies that could generate even more cases in coming months. Arrests and deportations from the interior of the United States are rising sharply, and the Trump administration has ended Obama-era protections for some undocumented immigrants, including 690,000 undocumented immigrants who arrived in the United States as children.

By Monday, the Trump administration is also expected to say if it will renew temporary protected status for thousands of longtime immigrants from Honduras and Nicaragua whose permits expire next year.

The Justice Department officials said they are no longer widely using certain protections for undocumented immigrants, including a tool known as prosecutorial discretion that allowed the government to set aside low-priority deportation cases.

DOJ officials criticized immigration lawyers, saying they “have purposely used tactics designed to delay” immigration cases. As of 2012, the officials said, there were an average of four continuances for each case before the court.

Gregory Chen, director of government relations for the American Immigration Lawyers Association, said the administration’s plan to cut the backlog would “undermine judicial independence” in the immigration courts.

“This administration has been extremely hostile toward the judiciary and the independence of immigration judges, as well as other judges,” Chen said.

Speeding up cases depends partly on congressional funding. It also rests partly on the actions of immigration judges, who have expressed concerns about due process for immigrants, many of whom are facing deportation to some of the world’s most violent countries. Immigrants are not entitled to a government-appointed lawyer in these courts and often handle cases on their own.

The Justice officials would not comment on reports that they will impose case-completion quotas on judges, which raised an outcry from the judges’ union. But the officials said they would give judges clear standards to complete cases and add more supervisors.

Officials say they are already seeing results from efforts this year to improve efficiency. From February to September, judges ordered 78,767 people to leave the country, a 33 percent jump over the same period in 2016. The total number of final decisions, which includes some immigrants who won their cases, is 100,921.”

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

THE GOOD:

Using retired U.S. Immigration Judges to fill in while Immigration Judges are on leave or otherwise scheduled to be out of court is a good idea. Indeed, the National Association of Immigration Judges (“NAIJ”) has been pushing this idea since the Clinton Administration with no results until now. Additionally, finally taking advantage of the available “Phased Retirement Options” for the the many Immigration Judges nearing retirement could also be helpful.
Over time, hiring additional Immigration Judges could be helpful, at least in theory. But, that depends on whether the hiring is done on a merit basis, the new judges are properly trained, and they have the space, equipment, and support staff to function. The DOJ/EOIR’s past record on accomplishing such initiatives has been beyond abysmal. So, it’s just as likely that additional hiring will harm the Immigraton Courts’ functioning as it is that it will help.

THE BAD:

“Productivity standards” are totally inappropriate for an independent judiciary. They are almost certain to infringe on due process by turning judges into “assembly line workers.” Moreover, if hiring is done properly, judges should be self-motivated professionals who don’t need “Micky Mouse performance evaluations” to function. While it might be helpful to have some “periodic peer review” involving input from those appearing before the courts and judges of courts reviewing the judges’ work, such as takes place in some other independent judicial systems, that clearly isn’t they type of system this Administration has in mind.
More use of Televideo is problematic. In person hearings are definitely better for delivering due process. The EOIR Televideo equipment tends to be marginal from a technology standpoint. “Pushing the envelope” on Televideo could well force the Article IIIs to finally face up and hold at least some applications of this process unconstitutional.
More “Supervisory Judges” are totally unnecessary and a waste of resources. In the “EOIR World,” Supervisory Judges often don’t hear cases. Moreover, as noted previously, professional judges need little, if any, real “supervision.” The system might benefit from having local Chief Judges (“first among equals”), like in other independent judicial systems, who can address administrative issues with the Court Administrator and the public, But, judges don’t need supervision unless the wrong individuals are being selected as judges. And, as in the U.S. District Courts, local Chief Judges should carry meaningful case loads.
Every other court system in the U.S., particularly the U.S. District Courts, rely on heavy doses of “Prosecutorial Discretion” (“PD”) by government prosecutors to operate. By eliminating PD from the DHS Chief Counsels, then touting their misguided actions, this Administration has guaranteed the ultimate failure of any backlog reduction plan. Moreover, this stupid action reduces the status of the DHS Assistant Chief Counsels. There is no other system I’m aware of where the enforcement officials (“the cops”) rather than professional prosecutors make the decisions as to which cases to prosecute. PD and sensible use of always limited docket time is part of the solution, not the problem, in the Immigration Courts.

THE UGLY:

The DOJ and EOIR continue to perpetuate the myth that private attorneys are responsible for the backlogs. No, the backlogs are primarily the result of Congressional negligence multiplied by improper politically motived docket manipulation and reschuffling to meet DHS enforcement priorities by the last three Administrations, including this one! This Administration was responsible for unnecessarily “Dark Courtrooms” earlier this year in New York and other heavily backlogged Immigration Courts.
Although not highlighted in this article, EOIR Acting Director James McHenry recently admitted during Congressional testimony that EOIR has been working on e-filing for 16 years without achieving any results! Thats incredible! McHenry promised a “Pilot Program” in 2018 with no telling when the system will actually be operational. And DOJ/EOIR has a well-established record of problematic and highly disruptive “technology rollouts.”

THE INCREDIBLE:

As usual, the DOJ/EOIR “numbers” don’t add up. EOIR “touts” compleating approximately 100,000 cases in the 7-month period ending on August 31, 2017. That’s on a pace to complete fewer than 200,000 cases for a fiscal year. But, EOIR receives an average of at least 300,000 new cases each year (even without some of the “Gonzo” Enforcement by the Trump DHS). So, EOIR would have to “pick up the pace” considerably just to keep the backlogs from growing (something EOIR hasn’t done since before 2012). Not surprisingly, TRAC and others show continually increasing backlogs despite having more judges on board. To cut the backlog from 640,000 to 320,000 (50%) by 2020, the courts would have to produce an additional 160,000 annual completions in 2018 and 2019! That, in turn, would require completing a total of at least 460,000 cases in each of those years. That’s an increase of 230% over the rate touted by DOJ/EOIR in the Post article. Not going to happen, particularly since we’re already more than one month into FY 2018 and Congress has yet to authorize or appropriate the additional resources the DOJ wants!

WHAT’S CLEAR:

The DOJ hocus pocus, fake numbers, unrealistic plans, political scheming, cover-ups, blame shifting, and gross mismanagement of the U.S. Immigration Courts must end!
Unless and until Congress creates an independent, professionally managed Article I Immigration Court, any additional resources thrown into the current Circus being presided over by Jeff Sessions’s DOJ would be wasted.

PWS

11-04-17

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

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

Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia. Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

“TERRIFIC TRIO” INSPIRES STUDENTS, FIGHTS FOR IMMIGRANT JUSTICE AT UVA LAW IMMIGRATION CLINIC — PLUS EXTRA BONUS: Go Back To School This Fall — Take My “One-Lecture” Class “Basic Asylum Law for Litigators” Right Here!

HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

FACULTY

dsharuk@law.virginia.edu

Deena N. Sharuk

Lecturer
Biography
Courses

Deena N. Sharuk teaches Immigration Law at the Law School.

Sharuk is currently practicing as an immigration attorney at the Legal Aid Justice Center in Charlottesville, Virginia, where she manages the Virginia Special Immigrant Juvenile Project. She received her B.A. in international relations with a specialization in human rights from Wellesley College. Sharuk received her law degree from Northeastern University School of Law.

After graduation, she worked as a fellow at the American Civil Liberties Union of Massachusetts and later practiced immigration law in Massachusetts and Virginia. Sharuk was recently appointed as a task force core team member to foster a welcoming environment for immigrants and minorities in Charlottesville and Albemarle county. She often presents to the community about changes in immigration law.

EDUCATION

JD.   Northeastern University School of Law    2012     
BA.   Wellesley College    2007

FACULTY

tanishka@justice4all.org

Cell Phone

(434) 529-1811

Tanishka V. Cruz

Lecturer
Biography
Courses

Tanishka V. Cruz is an attorney in solo practice at Cruz Law, a Charlottesville-based immigration and family law firm. She is also an attorney with the Legal Aid Justice Center, where for the past two years she has focused on the management of the Virginia Special Immigrant Juvenile Project, an award-winning collaboration between LAJC and pro bono attorneys across the state. The project has saved more than 150 refugee children from likely deportation.

Cruz earned her B.A. from Temple University and her J.D. from the Drexel University Thomas R. Kline School of Law.

She currently supervises students in the Immigration Law Clinic, which LAJC runs in conjunction with the Law School

EDUCATION

JD.   Drexel University Thomas R. Kline School of Law    2012     
BA.   Temple University    2004

FACULTY

rmcfarland@justice4all.org

Rachel C. McFarland

Lecturer
Biography
Courses

Rachel C. McFarland is an attorney at Legal Aid Justice Center in Charlottesville. She focuses on cases in public and subsidized housing, unpaid wages for migrant workers and immigration.

McFarland earned her B.A. from the University of Richmond in 2009, where she majored in Latin American and Iberian studies, and rhetoric and communication studies. She received her J.D. from Georgetown University Law Center in 2015.

While at Georgetown, McFarland participated in the asylum clinic and received a certificate in refugees and humanitarian emergencies.

EDUCATION

JD.   Georgetown University Law Center    2015     
BA.   University of Richmond    2009

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

Wow, what a totally impressive and multi-talented team! All three of these amazing lawyers also work at the Legal Aid and Justice Center in Charlottesville, VA. They tirelessly pursue justice for our most vulnerable! They teach their clinical students “real life” client interview, case preparation, organization, time management, negotiation, and litigation skills while giving them a solid background in probably the most important and dynamic area in current American Law: U.S. Immigration Law.

They do it all with energy, enthusiasm, good humor, and inspiring teamwork that will help their students be successful in all areas of life and law while contributing to the American Justice system.

I am of course particularly proud of Rachel McFarland who was one of my wonderful Refugee Law and Policy students at Georgetown Law and has gone on to “do great things” and help others as a “charter member” of the “New Due Process Army.” Way to use that “RLP” training and experience, Rachel! I know that my good friend and colleague Professor Andy Schoenholtz who runs the Georgetown Law Certificate in Refugees and Humanitarian Emergencies program is also delighted at how Rachel has chosen to use her specialized training!

Thanks again, Rachel, for “making your professors proud” of your dedication and achievements. I hope that your students will do the same for you (and your terrific colleagues)!

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For those of you who want to replicate the class experience in Charlottesville last Wednesday, here is the complete text of my class presentation: “BASIC ASYLUM LAW FOR LITIGATORS!”

BASIC ASYLUM LAW FOR LITIGATORS-2SPACE

BASIC ASYLUM LAW FOR LITIGATORS

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

UVA LAW IMMIGRATON CLINIC

Charlottesville, VA

October 25, 2017

BASIC ASYLUM LAW FOR LITIGATORS

OUTLINE

I. INTRODUCTION

II. WHO IS A REFUGEE?

Refugee Definition

Standard of Proof

What Is Persecution?

Nexus

III. PARTICULAR SOCIAL GROUP

The Three Requirements

Success Stories

The Usual Losers

What Can Go Wrong?

A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

I. INTRODUCTION

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

I’m truly delighted to be reunited with my friend and former student from Refugee Law & Policy at Georgetown Law, the wonderful Rachel McFarland. I am absolutely thrilled that Rachel has chosen to use her amazing talents to help those most in need and to be a teacher and an inspirational role model for others in the New Due Process Army. In addition to being brilliant and dedicated, Rachel exudes that most important quality for success in law and life: she is just one heck of a nice person! The same, of course, is true for your amazing Clinical Professor Deena Sharuk and her colleague Tanishka Cruz Thank you Deena, Tanishka, and Rachel, for all you are doing! All of you in this room truly represent “Due Process In Action.”

As all of you realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” including, sadly and most recently our Attorney General, losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of migrants are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

I do want to offer one additional important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

Please feel free to ask questions as we go along, or save them until the end.

II. WHO IS A REFUGEE?

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A. Refugee Definition

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

Generally, outside the country of nationality (not usually an issue in border cases);
Unwilling or unable to return (failure of state protection);
Because of persecution (undefined) or a well founded fear of persecution;
On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution do not automatically qualify individuals for refugee status, although “persecution“ within the meaning of the INA and the Convention certainly can sometimes occur in these contexts. However, some of these circumstances that fail to result in refugee protection because of the “nexus” requirement might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B. Standard of Proof

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C. What Is Persecution?

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner, who recently retired from the Seventh Circuit Court of Appeals, in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7^th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first [discrimination] refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D. Nexus

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fourth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fourth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5^th Cir. 2015). The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears designed to make the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A,

and the BIA is unlikely to retreat from L-E-A-. On the other hand, the Fourth Circuit might not go along with the L-E-A- view, although Judge Wilkins appeared anxious to endorse L-E-A- in his separate concurring opinion in Valasquez v. Sessions, 866 F.3d 188 (4^th Cir. 2017).

To my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4^th Cir. 2017) (slamming BIA for misapplying concept of “mixed motive”). So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your client’s currentproblems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both UVA Clinic specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III. PARTICULAR SOCIAL GROUP

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A. The Three Requirements

The BIA has established three requirements for a PSG.

Immutability or fundamental to identity;
Particularity; and
Social distinction.

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than the UVA Clinic – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4^th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

There are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. As they say, “There’s a new sheriff in town and, unfortunately in my view, he looks a lot like the infamous “Sheriff Joe.”

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4^th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E. A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit.

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

My eleventh rule is to “Get Physical.” In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htmwas effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyonewho has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect morearrests, more detention (particularly in far-away, inconvenient locations like, for instance, Farmville, VA), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

(10-30-17)

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

PWS

10-30-17

TRAC IMMIGRATION: MORE ARRESTS, MORE ENFORCEMENT, MORE DETENTION, MORE U.S. IMMIGRATION JUDGES, MORE GRANDIOSE CLAIMS – FEWER REMOVALS, FEWER COURT FILINGS, MORE COURT BACKLOGS – Somehow, The Trump Administration’s “Gonzo” Immigration Enforcement Program Doesn’t Add Up!

“==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. Preliminary figures based upon case-by-case court records as of the end of September 2017 indicate that the number of DHS issued NTAs (notices to appear) initiating proceedings in Immigration Court is substantially down since President Trump took office. This is surprising since ICE states that its apprehensions were up during this same period.

There were also increasing delays at DHS before NTAs, once issued, were actually filed in Immigration Court. This backlog of un-filed NTAs helped obscure the fall in Trump-initiated cases. Over 75,000 DHS filings in court after January 20, 2017 actually were of deportation cases begun under the Obama administration.

Despite the drop in court filings, and the hiring of 74 additional immigration judges over the past year, the court backlog also increased by 113,020 cases during FY 2017 – most of it since President Trump assumed office. As of the end of September 2017 the Immigration Court backlog has grown to 629,051 cases.

These and other findings are based upon very current case-by-case court records that were obtained under the Freedom of Information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

For the full report, go to:

http://trac.syr.edu/immigration/reports/487/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through September 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563″

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The Trump Administration is good at “obfuscation of data.” Seems like the upcoming appearance of EOIR Acting Director James McHenry before the House Immigration and Border Security Subcommittee on Wednesday, November 1, would be a good time for legislators to start asking some tough questions about how resources are being used (or not) at EOIR and why U.S. Immigration Judges were detailed, at Government expense, to locations where they had insufficient cases to keep busy while leaving jam-packed dockets behind.

They might also be curious as to how EOIR could be requesting a dramatic increase in Immigration Judges when additional positions allocated by Congress several years ago remain unfilled and, according to a recent GAO Report, Immigration Judge hiring has taken an average of two years (yet most of those hired are already on the government payroll and in jobs requiring full background checks).

They also might want to get an accounting for the continuation of the DOJ/EOIR practice of Aimless Docket Reshuffling (“ADR”) which “jacks up” backlogs while denying many due process of law.

PWS

10-30-17

ACTING EOIR DIRECTOR McHENRY TO TESTIFY BEFORE HOUSE JUDICIARY SUBCOMMITTEE ON WEDNESDAY, NOV. 1

Congressional Quarterly reports that Acting EOIR Director James McHenry will testify before the Immigration and Border Security Subcommittee Chaired by Chairman Raul R. Labrador, R-Idaho, at 2 p.m. in Room 2141 of the Rayburn House Office Building on Wednesday, Nov. 1. According to CQ, he is expected to address backlogs, hiring, and other issues facing the U.S. Immigration Courts.

PWS

10-29-17

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

3

finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

4

documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

5

eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17

1ST CIR. BOPS BIA’S BOILERPLATE DENIAL OF DOCUMENTED WITHHOLDING CLAIM – AGUILAR-ESCOTO V. SESSIONS!

1stCirAsy:WH16-1090P-01A

Aguilar-Escoto v. Sessions, 1st Cir., 10-27-17, published

PANEL: Howard, Chief Judge,Thompson and Kayatta, Circuit Judges.

OPINION BY: Chief Judge Howard

KEY QUOTE:

“We review the BIA’s legal conclusions de novo and its findings of fact under the “substantial evidence” standard, meaning that we will not disturb such findings if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Xin Qiang Liu v. Lynch, 802 F.3d 69, 74 (1st Cir. 2015) (citation omitted). In our review of the record, we note that while the BIA need not “discuss every piece of evidence offered,” it is “required to consider all

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relevant evidence in the record.” Lin v. Mukasey, 521 F.3d 22, 28 (1st Cir. 2008) (emphasis added). Consistent with this obligation, the Eleventh Circuit has specifically held that “an adverse credibility determination does not alleviate the BIA’s duty to consider other evidence produced by” an applicant for relief. Hong Chen v. U.S. Att’y Gen., 231 F. App’x 900, 902 (11th Cir. 2007) (citing Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005)). Rather, where the applicant provides evidence other than her own testimony, the agency “must consider that evidence” and may not “rely solely on an adverse credibility determination.” Forgue, 401 F.3d at 1287. According to the Eleventh Circuit, the agency’s failure to fulfill this duty is grounds for vacating the BIA decision, irrespective of the merits of the adverse credibility finding. See Toska v. U.S. Att’y Gen., 194 F. App’x 767, 768 (11th Cir. 2006); see also Khattak v. Holder, 704 F.3d 197, 208 (1st Cir. 2013) (“[W]e will remand if the agency fails to state with sufficient particularity and clarity the reasons for denial of [relief] or otherwise to offer legally sufficient reasons for its decision.” (citation omitted)).

We agree with the Eleventh Circuit’s approach to this issue, which is consistent with our precedent. See Rasiah v. Holder, 589 F.3d 1, 6 (1st Cir. 2009) (“An adverse credibility finding by itself would not automatically doom a claim for asylum.”). The appropriate result in this case follows easily.

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Even assuming that its credibility ruling was supportable, the BIA was required to go further and address whether, setting Aguilar’s testimony to one side, the documentary evidence entitled her to relief. See Lin, 521 F.3d at 28; Forgue, 401 F.3d at 1287. Indeed, the IJ expressly recognized that this documentary evidence, if believed, was sufficient to establish multiple acts of domestic violence against Aguilar by her ex-husband. In these circumstances, the BIA’s failure to consider or even acknowledge the evidence requires remand. See Toska, 194 F. App’x at 768; Khattak, 704 F.3d at 208. We take no position on the merits of the IJ’s holding that the abuse reflected in the documentary evidence was not sufficiently severe to warrant relief. This issue is best left to be addressed by the BIA in the first instance.

We note, for the benefit of the agency on remand, that the Board’s failure to consider Aguilar’s documentary evidence may have been rooted in its fundamental misunderstanding of her claim. Again, the Board appears to have operated under the mistaken assumption that Aguilar had applied for asylum as well as withholding of removal. These two grounds for relief are not identical. For one thing, withholding of removal requires a higher likelihood of persecution than asylum. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) (noting that applicants for withholding must satisfy a “more likely than not” standard (citation omitted)). There is, however, a different sense in which

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the asylum standard may be more exacting. Withholding claims “lack a subjective component and are [thus] concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (explaining that the relevant statutory language “has no subjective component”). Asylum, by contrast, has both a subjective and an objective component: it requires a showing that the applicant “genuinely fears persecution,” in addition to proof that the “fear is objectively reasonable.” Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Applicants “typically” seek to establish the requisite “genuineness” through their “own credible testimony.” Id. at 80-81. An adverse credibility finding thus may prove fatal to this aspect of an asylum claim. But, because withholding of removal requires no such genuine belief, a withholding claim “may, in appropriate instances, be sustained” despite an adverse credibility finding. Paul, 444 F.3d at 156.

In the present case, the BIA may well have been justified in concluding that, absent her own credible testimony, Aguilar failed to establish a subjectively genuine fear that she would be persecuted upon returning to Honduras. This failure would doom an asylum claim notwithstanding additional evidence establishing that a reasonable person in Aguilar’s circumstances would have feared persecution. See Makhoul, 387 F.3d at 80-81. But, in the withholding context, the inquiry is a strictly objective one. See

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Cardoza-Fonseca, 480 U.S. at 430-31. Thus, even after discrediting Aguilar’s testimony, arguably the only evidence that she did in fact harbor a subjective fear of persecution, the BIA was nonetheless obliged to consider documentary evidence potentially capable of establishing her likelihood of suffering further abuse.

Rather than embarking on this objective assessment, the BIA fell back on the familiar refrain that, because “the applicant did not establish eligibility for asylum, it follows that she cannot establish eligibility for withholding of removal, which has a higher burden of proof.” Such a conclusion is unassailable where the applicant’s subjective fear is proven or assumed, and the denial of the asylum claim turns on the lack of evidence that the fear was objectively reasonable. See, e.g., Makhoul, 387 F.3d at 81. But the same is not necessarily true where an asylum claim fails due to a lack of credible testimony establishing the applicant’s subjective fear. The Board’s failure to apply the appropriate, purely objective standard to Aguilar’s withholding claim provides an independent basis for remand. See Kozak v. Gonzáles, 502 F.3d 34, 38 (1st Cir. 2007) (remanding because “the BIA applied an inappropriate legal standard”); Castañeda-Castillo v. Gonzales, 488 F.3d 17, 22 (1st Cir. 2007) (remanding “to allow the matter to be considered anew under the proper legal standards”).

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III.
For the foregoing reasons, we VACATE the BIA’s order

dismissing Aguilar’s appeal and remand for further proceedings consistent with this opinion.”

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

You can read the complete opinion at the link

This type of reversal does not involve a “Chevron-type” legal policy issue where the BIA and the Article IIIs might well reach different conclusions. Rather, this case is all about the BIA misapplying the “fundamental nuts and bolts” of credibility and withholding analysis in putting out a “boilerplate denial.” Why should the Article IIIs be finding “mechanical-analytical” issues that the expert BIA missed? Perhaps the EOIR system is “peddling too fast.” In that case, Sessions’s proposed “production quotas for judges” are the absolute worst thing that could happen to the Immigration Courts and Due Process.

Also, if the Article IIIs are better than the BIA at the basics of immigration and asylum law, why shouldn’t the Article IIIs, not the BIA, be getting “Chevron deference?”

DUE PROCESS UNDER ATTACK: ANOTHER “IMMIGRATION HARDLINER” MOVES OVER TO DOJ TO HELP GONZO TORMENT, TRASH, AND BULLY THE MOST VULNERABLE

http://www.cnn.com/2017/10/27/politics/administration-immigration-official-joining-doj/index.html

Tal Kopan reports for CNN:

“Washington (CNN)One of the Trump administration’s top immigration policy staffers is leaving the Department of Homeland Security to join the attorney general’s office at the Department of Justice — reuniting him with Jeff Sessions.

Gene Hamilton, a senior counselor to the Homeland Security secretary since January and top immigration policy expert for the administration, confirmed the move to CNN.
Hamilton’s departure will be a blow to Homeland Security’s policy shop, sources familiar with the situation said. The agency is tasked with managing the vast majority of the administration’s immigration portfolio.
But the move will reunite Hamilton, a former Sessions staffer, with the Cabinet’s strongest immigration policy hardliner, an early supporter of President Donald Trump who has been a key proponent of his aggressive immigration agenda from his perch at DOJ.
Hamilton was a general counsel for Sessions on Capitol Hill and will work directly with the attorney general in his new role. The switch is tentatively expected to begin next week, the sources said.

. . . .

While the move would take Hamilton out of the development of DHS immigration policies, where the secretary’s office oversees components including Immigration and Customs Enforcement, Customs and Border Protection and US Citizenship and Immigration Services, DOJ under Sessions has been taking a stronger role in immigration policy during this administration.
Sessions himself remains a thought leader in the administration on the tough immigration agenda of the President, and DOJ manages the nation’s Immigration courts.
Justice also is charged with representing the government in litigation — which would include all the sanctuary cities litigation, DACA lawsuits and ongoing travel ban litigation.“

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Read Tal’s complete report at the link.

With the DOJ abandoning the last pretenses of objectivity and assuming the “point position” on the Administration’s xenophobic anti-immigrant agenda, how could Immigration Courts held “captive” within the DOJ possibly provide individuals with the “fair and unbiased decision-making” required by the Due Process Clause of our Constitution? Only an independent Article I Court can save this deeply compromised system!

PWS

10-27-17

LA TIMES; “DETAINED AND DEFENSELESS” – How Our Government Specifically Designed An American Gulag (Complete With “Kangaroo Courts”) To Deny Migrants Their Statutory & Due Process Rights To Counsel, & Then Simply Lies About What They Are Doing!

http://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Kyle Kim writes:

“Judy London merges onto the freeway, heading northeast toward a high desert already baking under a recently risen sun. From West Los Angeles, she faces a two-hour, 100-mile drive to the Adelanto Detention Facility to meet a client who is being deported. The commute time can double if rush-hour traffic is particularly bad.

London arrives at the facility and walks up a concrete path flanked by gravel to the detention facility’s entrance. Once inside, rows of chairs and lockers greet her, as does a guard. She checks in but can’t meet her client yet — the facility is undergoing its daily head count, and she has to wait until it’s finished.

It can take another hour from this moment. London still has to be cleared through security and have a guard escort her client to her.

Finally, she has to wait for an interview room. Adelanto Detention Facility has an average daily population of 1,785, but only a handful of rooms designated for lawyer-client meetings. And once a room is available, she’ll have to take all her notes by hand. The facility prohibits the use of phones, laptops and other electronic devices.

London, like many immigration attorneys, spends a lot of time just trying to meet face-to-face with her clients. It’s a good day when she actually meets them. On bad days, she can spend hours traveling, only to be turned away.

The facility in recent months has refused entrance to attorneys for a variety of reasons, including a chickenpox outbreak and hunger strikes.

“Generally, it is far easier for me, as an attorney, to walk into a high-security local or federal prison unannounced to visit a client than it is to get into a detention facility to see someone. And that is odd,” said London, directing attorney for Public Counsel’s Immigrants’ Rights Project.

::

Most immigrants detained by Immigration and Customs Enforcement while their deportation cases are being considered don’t have an attorney.

Immigration detention is considered civil detention and, as a result, detainees do not have a right to counsel as they would in criminal cases.

Immigration attorneys say geography is a significant hurdle.

Many ICE facilities in the U.S. are located in smaller cities, hours from cities where most legal aid organizations operate. So even if the government makes legal aid resources available, they can be miles away.

About 30% of detained immigrants are held in facilities more than 100 miles from the nearest government-listed legal aid resource, according to a Times analysis of 70 ICE detention centers.

Of these, the median distance between the facilities and the nearest government-listed legal aid was 56 miles.

The farthest is Etowah County Detention Center in Gadsden, Ala. Alabama doesn’t have an immigration court, so immigrants detained there are referred to the Loyola Law Clinic — 408 miles away in New Orleans.

Immigrants facing deportation are provided with a list of available pro bono legal aid and services. The list is administered by the Justice Department’s Executive Office for Immigration Review, which calls it an “essential tool.”

Providers on the pro bono list — mostly nonprofits — aren’t required to offer free services to every detainee, according to the Justice Department, and only a lucky few get help from pro bono lawyers.

UCLA law professor Ingrid Eagly analyzed 1.2 million deportation cases between 2007 and 2012 and found that just 2% of immigration detainees had free legal representation. Most immigrant attorneys came from solo practitioners or small firms.

The location of detention facilities in remote locations can pose a logistical challenge to the court system as well as the attorneys. Court procedure can vary by jurisdiction. Some have judges at the facility. Some conduct business by teleconference. Some use a combination of the two.

. . . . .

ICE officials did not answer specific questions about why detained immigrants are significantly less likely to obtain counsel or allegations that systemic hurdles limit access to legal representation.

The agency has previously said that it is “very supportive and very accommodating” to detainees who wish to have a lawyer. ICE spokeswoman Jennifer D. Elzea said the department maintained that position.

“ICE is committed to allowing detainees access to visits, telephones, legal counsel and law library resources. Additionally, all facilities have notifications posted throughout providing information about pro bono legal services,” Elzea said in a statement.

No attorney or legal aid group interviewed for this report agreed with ICE’s position.

“The government is locking people up in remote jails and prisons hundreds of miles from attorneys, and arguing that having phones there that sometimes work is sufficient access to counsel,” National Immigrant Justice Center Executive Director Mary Meg McCarthy said in response to ICE’s statement.

“The government spends billions of dollars to sustain — and expand — a system that obstructs lawyers’ ability to defend their clients’ due process rights. We’ve been told by ICE that the agency does not consider availability or proximity of counsel as any part of its assessment of the suitability of a new detention center, and we have no reason to believe that it cares at all whether people in detention have lawyers,” she said.

Immigrant rights proponents see little chance of reform under President Trump.

The administration’s executive orders on immigration have reversed enforcement priorities. Arrests increased by 37.6% during Trump’s first 100 days in office compared with the same period in 2016, according to ICE data.

The fight for reform will take place in more liberal cities and states, and through the efforts of legal aid groups.

The Southern Poverty Law Center recently started the Southeast Immigrant Freedom Initiative. The goal is to provide counsel to every detained immigrant in the Southeast — a region with a high number of deportation cases.

But the program, said Dan Werner, who directs the initiative, was a stopgap measure built out of necessity.

“The real solution is systemic reform of immigration policy,” he said.

In March, New York became the first state to dedicate funding to providing pro bono legal services to every detained immigrant.

And in June, California lawmakers put $45 million in the state budget to expand legal services for immigrants.

Attorneys and advocates view such measures as incremental.

“In most cases, there won’t be accountability in the government,” London said, “so there’s no incentive for them to address it.”

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

Read the complete article at the link.

Next time you hear Jeff “Gonzo Apocalyto” Sessions deliver one of his self-righteous, fact-free attacks on asylum seekers and their advocates, remember that the REAL FRAUDSTER HERE IS “GONZO” HIMSELF and his knowingly false narrative about asylum seekers that he uses to “cover up” the intentional abuses of legal and human rights being carried out by ICE and EOIR under his direction. Accountability, addressing the real need for reforms in the immigration enforcement and Immigration Court systems to insure Constitutional Due Process? Not going to happen on “Gonzo’s Watch.”

PWS

10-23-17

WashPost LEAD EDITORIAL BLASTS SESSIONS’S ATTACK ON INDEPENDENCE OF U.S. IMMIGRATION JUDGES — Time For Congressional Action To Preserve Due Process!

https://www.washingtonpost.com/opinions/sessionss-plan-for-immigration-courts-would-undermine-their-integrity/2017/10/22/ce000df6-b2aa-11e7-9e58-e6288544af98_story.html?utm_term=.2ee43b5a7979

“By Editorial Board October 22 at 6:39 PM

ATTORNEY GENERAL Jeff Sessions decried the state of the immigration courts in remarks Oct. 12 before the Justice Department’s Executive Office for Immigration Review, lamenting “rampant abuse and fraud” in asylum applications. As part of Mr. Sessions’s push for an overhaul of the immigration system, the department also plans to begin evaluating immigration judges on the basis of how many cases they resolve. This proposal would do little to fix the United States’ backlogged immigration courts and much to undermine their integrity.

The Trump administration hinted at the plan in a wish list of immigration policies, alongside commitments to constructing President Trump’s promised border wall and withholding federal grants from so-called sanctuary cities. According to reporting by The Post, government documents show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.” Such a metric would probably involve assessing judges based on how many cases they complete or how quickly they decide them — a plan that the National Association of Immigration Judges has called a “death knell for judicial independence.”

Unlike other federal judges, immigration judges are technically Justice Department employees. Currently, the collective bargaining agreement between Justice and the judges’ association forbids evaluating judges based on quotas. But the association says the Executive Office of Immigration Review is working now to remove that language from the contract.”

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

Read the complete editorial at the link.

Note the “progression” by the DOJ: From “performance evaluations would interfere with judicial independence,” to “performance evaluations won’t involve production quotas,” to “judges are just ‘oyster shuckers in robes!'”

Performance evaluations by the DOJ are just as inappropriate and unnecessary for U.S. Immigration Judges now as they were back in 1983 when EOIR was established. The only difference is the plan by Sessions and his politico cronies to co-opt the U.S. Immigration Courts and use them as an enforcement tool in his xenophobic crusade against immigrants, asylum seekers, due process, and the American justice system.

I actually was part of the NAIJ “negotiating team” that negotiated the current procedures and standards for judicial performance evaluations. We were assured over and over by “EOIR Management” that “case quotas” were not part of the plan and that “management recognized” the need for decisional independence in the Immigration Judge corps.

PWS

10-23-17

U.S. IMMIGRATON JUDGES: QUOTAS WILL SPELL THE END OF DUE PROCESS IN IMMIGRATION COURT!

HERE ARE TWO POSITION PAPERS PREPARED BY THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”) THE COLLECTIVE BARGAINING ORGANIZATION THAT REPRESENTS ALL U.S. IMMIGRATION JUDGES (FULL DISCLOSURE: I am a Retired Member of the NAIJ)

NAIJ HAS GRAVE CONCERNS REGARDING IMPLEMENTATION OF QUOTAS ON IMMIGRATION JUDGE PERFORMANCE REVIEWS, October 18, 2017

“The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.

Not only will individuals who appear in removal proceedings potentially suffer adverse consequences, but also the public’s interest in a fair, impartial and transparent tribunal will be jeopardized by implementation of such standards.

THE SOLUTION

While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. The problems highlighted by the response to the recent “surge” underscores the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xvi In the intervening years, a strong consensus has formed supporting this structural change.xvii For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court

system….” xviii

The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of the United States justice system that these foreign born individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for enforcement, due process and humanitarian treatment of all respondents in our proceedings.

6

NAIJ CONCERNS RE QUOTAS

AILA Doc. No 17102062.  (Posted 10/20/17)

We realize that immediate action is needed, and that a structural overhaul and creation of an Article I Court, while the best and only durable solution, may not be feasible right now. However, Congress can act easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. . Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings.xix To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

We urge you to take this important step to protect judicial independence at the Immigration Courts by enacting legislation as described above.

Thank you.

FOR ADDITIONAL INFORMATION, CONTACT

THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT NATIONAL ASSOCIATION OF IMMIGRATION JUDGES C/o Immigration Court
606 S. Olive Street, 15th Floor

Los Angeles, CA 90014 (310)709-3580 ashleytabaddor@gmail.com www.naij-usa.org

Read the complete memo at this link:

NAIJ2

Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges

“15) If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.

16) In addition, Circuit Courts will be severely adversely impacted and we will simply be repeating history which has proven to be disastrous. One need only remember the lasting impact of Attorney General Ashcroft’s “streamlining” initiative at the Board of Immigration Appeals.

17) The United States Government Accountability Office issued its report entitled “IMMIGRATION COURTS-Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges Report to Congressional Requesters” in June 2017, GAO-17-438, (GAO Report). This GAO Report contains a section entitled, “Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog;” however, nowhere is the suggestion made that numerical or time based criteria be added to performance evaluations for immigration judges. AILA Doc. No 17102061. (Posted 10/20/17)

18) There is no reason for the agency to have production and quantity based measures tied to judge performance reviews. The current court backlog cannot be attributed to a lack of Immigration Judge productivity. In fact, the GAO report shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances, where Judges were forced to reset cases that were near completion in order to address cases that were priorities of various administrations, have a much greater impact on case completion rates. 19) The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.”

Read this entire memorandum at the following link:

NAIJ1

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

Folks, Due Process is “on the run” at the U.S. Immigration Courts. If Congress doesn’t take at least some corrective action to protect quasi-judicial independence, our U.S. Immigration Courts will no longer be able to provide fair and impartial adjudication in accordance with Constitutional requirements. Today, the statutory and Constitutional rights of immigrants are under attack. Tomorrow it could be YOUR Constitutional rights. Who is going to speak up for YOUR RIGHTS if YOU are indifferent to the rights of others?

PWS

10-21-17

READ ABOUT EL SALVADOR, ONE OF THE PLACES WHERE “GONZO & HIS GANG” WOULD LIKE TO SEND REFUGEES WITHOUT GIVING THEM DUE PROCESS AND A FAIR CHANCE TO PLEAD FOR THEIR LIVES!

http://www.washingtonpost.com/sf/world/2016/10/28/el-salvadors-conflict-with-gangs-is-beginning-to-look-like-a-war/?tid=a_classic-iphone&utm_term=.66bd90942a8d

Fred Ramos reports for the Washington Post:

‘We see the police as terrorists’

In the next few weeks, four young men 16 to 24 years old were fatally shot by police during two incidents. Police on both occasions reported an “enfrentamiento,” or confrontation, in which gangsters fired on them. Relatives of the dead said that the officers killed the young men unprovoked.

As with much of the violence here, getting to the truth is difficult. Investigations are often cursory. Some residents said they are too afraid of the police to provide testimony. What is clear is many residents’ deep resentment of the security forces.

“We see the police as terrorists,” said an aunt of one of the four victims, 16-year-old Bryan Rodrigo Santos Arevalo.

The aunt, who spoke on the condition of anonymity, citing a fear of authorities, said that a witness who escaped told her that police had executed the teenager. The right side of Santos Arevalo’s face was blown off, morgue photos show.

If police were using lethal force, so were the gangs. On July 3, 2015, four local police officers were returning from a call when “they attacked us from both sides,” recalled a police supervisor who was present, speaking on the condition of anonymity. Gang members positioned on earthen mounds overlooking the road sprayed gunfire at the officers’ truck, he said. The police sped off, firing frantically, but the driver was hit in his left side. The supervisor was shot in the right knee.

“It’s a miracle that I am alive to tell this story,” the supervisor said.

Three days later, local police along with members of a San Salvador-based SWAT team shot and killed two members of the Tiny Malditos outside a farmhouse in Santa Teresa. The police reported taking gunfire on arrival. Morena Leiva de Silva, the mother of one of the dead, said a farmworker who was present told her that the officers shot the two gang members as they fled.

“They ran from the police because they were terrified,” she said. “They panicked.”

A truce ends

President Salvador Sánchez Cerén was a Marxist guerrilla in the 1980s. Now he is the one defending the state.

“Although some say we are at war, there is no other road,” Sánchez Cerén said in March.

The government of Sánchez Cerén’s predecessor, Mauricio Funes, had engineered a truce between major gangs, transferring their leaders into more lax prisons where they could coordinate with their followers. The homicide rate fell, although critics argued that the respite allowed the gangs to grow stronger.

On taking office in June 2014, Sánchez Cerén brought a swift end to the truce. His government transferred the leaders back to maximum-security lockups, banned visits and cut off cellphone access. He called up military reservists to join the fight against the gangs. The director of the national police announced that officers should feel free to use their weapons to protect themselves. New legislation made it harder to investigate police when they alleged self-defense.

Homicides shot up. Last year, police were responsible for an estimated 1,000 of the country’s 6,600 killings, a steep increase, experts say.

The gangs began targeting police, soldiers, prosecutors and their families in a way unseen. Gang members killed more than 60 police officers last year, nearly doubling the total the year before. Police have confiscated an increasing number of military-style assault rifles from gang members. The attorney general’s office recently accused one of the biggest gangs, Mara Salvatrucha, also known as MS-13, of planning to assemble a 500-man unit of trained gang members to attack security forces. Last fall, a car rigged with explosives detonated outside the Finance Ministry.

The U.N. High Commissioner for Human Rights warned in June that allegations of assassinations by El Salvador’s security forces are “intolerable and are likely to fuel even greater violence.”

The national human rights prosecutor’s office, an independent agency, has compiled a registry of nearly 100 cases of alleged assassinations by security forces or shadowy “extermination groups,” which often include off-duty police, since mid-2013. But the agency acknowledges that there may be many more.

Walter Gerardo Alegria, a deputy head of the office, said it wasn’t clear whether such killings were ordered by authorities. “However, from the quantity of cases that we have, one can assume that this is a systematic practice,” he said.

The director of the national police, Howard Cotto, said he couldn’t rule out that some officers may have taken part in summary executions, but he denied that such behavior was permitted.

“We are not willing to tolerate that under the guise of solving security problems we cover up for people who commit crimes or summary executions,” he said.

The campaign against gangs has been popular among many Salvadorans. But it may come at a terrible cost to this young democracy, said Hector Silva Avalos, who has written a book on the Salvadoran police.

“If between death squads, citizen squads, rough police officers, they kill enough gang members to actually diminish the territorial control of the gangs — then who’s going to be in charge?” he asked. “Police commanders with no respect for human rights?”

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

This is only a small part of a lengthy article which is available at the above link.

This, not Gonzo’s bogus “Blame DACA Narrative” or his fabricated fraud narrative, is why women and children are fleeing from the Northern Triangle and are likely to continue to do so regardless of how much “deterrence” Gonzo & Gang throw at them. And, these folks have potentially legitimate claims that should be fully and impartially heard in Immigration Court with the assistance of counsel and full appeal rights. Even those who do not fit the “technical requirements” for legal protection under U.S. law might well have strong humanitarian claims for temporary refuge under Temporary Protected Status (“TPS”) (which the last tow Administration ministrations have stubbornly refused to acknowledge) or prosecutorial discretion. We are hardly a “disinterested party” in the rampant violence that is now gripping Central America.

PWS

10-20-17

GOING GONZO IN TEXAS: Sessions “Doubles Down” On Slurs, False Narrative, & Innuendo Against Immigrants!

DOJ PRESS RELEASE:

“Attorney General Jeff Sessions Delivers Remarks About Carrying Out the President’s Immigration Priorities

Austin, TX

Friday, October 20, 2017

Remarks as prepared for delivery

Thank you for that kind introduction Richard. You’ve been a crime fighter here in this office for over three decades. Thank you for your dedicated service.

I would also like to thank and recognize our selfless and dedicated law enforcement here who put their lives on the line every and who run toward danger for the benefit of us all.

On behalf of President Trump, it is an honor to be here with you all – with the selfless and courageous men and women of law enforcement. President Trump and this Department of Justice understand your mission. The President has directed us to support that mission and support you. And we are committed to doing that.

Donald Trump ran for office as a law-and-order candidate and now he is governing as a law-and-order President. Under his strong leadership, we are finally getting serious about crime and the rule of law. And we are finally getting serious about illegal immigration.

We have the most generous immigration laws in the world. And for decades we have always pulled back from effective enforcement.

But earlier this month, the President released his principles for fixing our immigration system. Let me just say: they are a breath of fresh air. For decades, the American people have been begging and pleading with our elected officials for an immigration system that is lawful and that serves our national interest. Now we have a President who leads.

The principles he laid out deal with every aspect of our immigration problems—everything from border security to interior enforcement to closing loopholes in our asylum program. It’s the kind of bold agenda that the American people have been waiting for. It is reasonable and it will work. And this is a critical point: this is not hopeless; it can be done!

First of all, the President is determined to finally build a wall at our Southern border. This will make it harder for illegal aliens to break into this country. For many, they will decide not to come illegally. But more importantly, the wall will send a message to the world that we enforce our laws. It sends a message: finally we mean it.

And to better do that, President Trump has proposed hiring more than 10,000 new ICE officers, 1,000 new ICE attorneys, 300 new prosecutors, and nearly 400 new immigration judges. He has proposed switching to a more merit-based system of immigration like they have in Canada. That means welcoming the best and the brightest but turning away gang members, fraudsters, drunk drivers, and child abusers. This merit-based system would better serve our national interest because it would benefit the American people. That’s what this agenda is all about. We can’t accept everybody—only people who will flourish.

And that’s why the President supports mandating the use of the E-verify system, which is an internet based system that allows employers to verify that those they hire are authorized to work in the United States.

Under the President’s plan, it would be illegal to discriminate against American workers in favor of foreign workers.

We need this agenda. And Texans know that better than just about anybody.

I’m sure everyone in this room remembers Houston police officer Kevin Will. An illegal alien who had been deported twice drove drunk and hit Officer Will at about 90 miles per hour. Officer Will’s last words were telling someone to get out of the way of the car. He died protecting innocent people. And when he died, his wife was pregnant with their first child.

The open-borders lobby talks a lot about kids—those who are here unlawfully. But open-borders policies aren’t even in their interest either. After the previous administration announced the Deferred Action for Childhood Arrivals—or DACA—policy in 2012, the number of unaccompanied children coming here nearly doubled in one year. The next year, it doubled again.

I doubt that was a coincidence. DACA encouraged potentially tens of thousands of vulnerable children to make the dangerous journey North. That had terrible humanitarian consequences—and Texans know that firsthand.

Earlier this month, Border Patrol arrested two young men who had benefitted from DACA, for allegedly attempting to smuggle illegal aliens into Laredo.

Just a few days later, another beneficiary of DACA was charged with the murder of an 18-year old girl. In total, 2,000 DACA recipients have had their status withdrawn.

The President wants to stop the incentives for vulnerable children to come here illegally. He began to do that last month when he ended the DACA policy.

The President has also laid out a plan to close loopholes that are being exploited in our asylum program.

Under the previous Administration, the federal government began releasing illegal aliens who claimed to be too afraid to return home. Unsurprisingly, the number of these claims skyrocketed nearly 20-fold in eight years from 5,000 in 2009 to 94,000 now. And after their release, many of these people simply disappeared.

It’s too easy to defraud our system right now—and President Trump is going to fix that. The President’s plan to close the loopholes will stop the incentive for false asylum claims.

President Trump is also confronting the state and local jurisdictions that have undertaken to undo our immigration laws through so-called “sanctuary policies.”

Such policies undermine the moral authority of law and undermine the safety of the jurisdictions that adopt them. Police are forced to release criminal aliens back into the community—no matter what their crimes. Think about that: Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place. They should—according to law and common sense—be processed and deported.

These policies hinder the work of federal law enforcement; they’re contrary to the rule of law, and they have serious consequences for the law-abiding Texans.

Earlier this month, an illegal alien in Kansas pled guilty to reckless driving that killed a law enforcement officer conducting a traffic stop. He tested for a blood alcohol content twice the legal limit. The officer who was killed—Deputy Brandon Collins—had two young daughters.

The illegal alien who killed Deputy Collins had already been arrested twice for driving-related offenses—including a previous drunk driving conviction. Clearly, he had been in police custody, but no one turned him over to ICE.

The politicians behind “sanctuary” policies say that forcing police officers to release criminal aliens back onto the streets will somehow increase community trust.

But that does not make sense to me. Would releasing someone who had been arrested numerous times into your community give you more confidence in law enforcement?

Would learning that a local district attorney actually charges illegal aliens with less serious crimes than Americans to evade federal deportation make you believe they are trying to make your neighborhood safer? Would forcing federal officers to track down criminal aliens on your street instead of safely in the jails make you believe we value your community?

We all know law enforcement is not the problem. You risk your lives each day in service of the law and the people you protect. Cooperation, mutual respect is critical. Disrespecting our law enforcement officers in their lawful duties in unacceptable.

The problem is the policies that tie your hands.

Yet, rather than reconsider their policies, sanctuary jurisdictions feign outrage when they lose federal funds as a direct result of actions designed to nullify plain federal law. Some have even decided to go to court so that they can keep receiving taxpayer-funded grants while continuing to impede federal immigration enforcement. We intent to fight this resolutely.

We cannot continue giving federal grants to cities that actively undermine the safety of federal law officers and intentionally frustrate efforts to reduce crime in their own cities.

These jurisdictions that knowingly, willfully, and purposefully release criminal aliens back into their communities are sacrificing the lives and safety of American citizens in the pursuit of an extreme open borders policy. It’s extreme and open borders because if a jurisdiction won’t deport someone who enters illegally and then commits another crime then who will they deport.

This isn’t just a bad policy. It’s a direct challenge to the laws of the United States. It places the lives of our fine law enforcement officers at risk and I cannot and will not accept this increased risk because certain politicians want to make a statement.

Our duty is to protect public safety and protect taxpayer dollars and I plan to fulfill those duties.

The vast majority of Americans oppose “sanctuary” policies. According to one poll, 80 percent of Americans believe that cities should turn over criminal aliens to immigration officials.

The American people are not asking too much, and neither is the Department of Justice. Federal law enforcement wants to work with our partners at the state and local level. We want to keep our citizens safe.

Fortunately, in President Trump, we have strong leadership that is making a difference.

Since he took office, border crossings have plummeted by nearly a quarter—even as our economy has been booming. This past fiscal year, Border Patrol conducted half of the number of arrests as the previous one, and one-fifth of the number of arrests they made a decade ago.

Now, someone might say, that decline is because they’re just not catching people. But that’s just not true.

Border Patrol’s tactics and their technology have been refined and are only getting better. The Department of Homeland Security believes that they are catching a greater share of illegal aliens than ever—more than four out of five.

So the data show clearly: President Trump’s leadership is making a difference. Would-be lawbreakers know that we are restoring the rule of law and enforcing our immigration laws again.

And under President Trump’s immigration principles, the Departments of Justice and Homeland Security will stop rewarding sanctuary cities with taxpayer dollars.

If these cities want to receive law enforcement grants, then they should stop impeding federal law enforcement.

In Texas, you have taken a leadership role on this issue.

I want to commend the state legislature for passing Senate Bill Four with strong majorities in both chambers, and thank Governor Abbott for signing it into law.

I am well aware that this law has its critics. And I am more than familiar with their line of criticism. But the facts of the case are clearly on Texas’ side.

Earlier this month, the Department of Justice filed an amicus brief in this case. We believe that the outcome is important not just to the state of Texas, but to the national interest. The integrity of our immigration laws is not a local issue—it is a national issue.

I am confident that Texas will prevail in court. But I would urge every so-called “sanctuary” jurisdiction to reconsider their policies. So-called “sanctuary” policies risk the safety of good law enforcement officers and the safety of the neighborhoods that need their protection the most. There are lives and livelihoods at stake.

If we work together, we can make our country safer for all our residents—native born and lawful immigrant alike. Working together requires ending “sanctuary” policies.

The Department of Justice is determined to reduce crime. We will not concede a single block or street corner in the United States to lawlessness. Nor will we tolerate the loss of innocent life because a handful of jurisdictions believe they are above the law.

And so to all the law enforcement here—federal, state, and local—thank you for all that you do. President Trump is grateful; I am grateful, and the entire Department of Justice is grateful for your service. We have your back and you have our thanks.

Thank you, and God bless you.”

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

Sessions is proposing to make the U.S. Immigration Court the largest, and certainly most “out of control” Federal Judiciary. And he also wants 10,000 more agents for the Internal Security Police (a/k/a/ DHS) that also runs the American Gulag. Sure sounds like a prescription for turning America into something like “Putinia.” That’s the White Nationalist blueprint and why they are so cozy with repressive, non-democratic rulers like Putin.

I’m exhausted for the week. Going to let someone else come up with all the numbers and studies showing how bogus Sessions’s “Alien Crime Wave” and attempt to falsely link DACA to an increase in kids fleeing gang violence to save their lives.

REALITY CHECK: At some point this grandiose plan for endless personnel and resources devoted largely to keeping needed workers and legitimate refugees out of the U.S. will have to be approved by Congress. And, it promises to be a “Budget Buster.”

PWS

10-20-17

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Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.

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HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

Deena N. Sharuk

Tanishka V. Cruz

Rachel C. McFarland

II. WHO IS A REFUGEE?

A. Refugee Definition

B. Standard of Proof

C. What Is Persecution?

D. Nexus

III. PARTICULAR SOCIAL GROUP

A. The Three Requirements

B. Success Stories

C. The Usual Losers

D. What Can Go Wrong?

E. A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

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‘We see the police as terrorists’

A truce ends

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