🤪 DISTORTED JUSTICE: From Inanely Denying Persecution To Ignoring Evidence, Garland’s Biased Courts Warp The Immigration Narrative By Improperly Rejecting Many Valid Claims!🤮

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Two More Classic Examples of AG’s “Judicial Malpractice” With Lives At Stake From Dan Kowalski @ LexisNexis:

1. CA9 on Persecution: Singh v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/03/22/22-211.pdfl

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca9-on-persecution-singh-v-garland

“Singh experienced multiple physical attacks and death threats over an eight-month period, from November of 2014 to June of 2015. No reasonable factfinder would conclude that Singh did not experience serious harm rising to the level of persecution. … For all these reasons we find that the record compels a finding that Singh suffered harm rising to the level of persecution. … [T]he BIA did not independently analyze relocation and determine that the government met its burden. Rather, the BIA expressly adopted the IJ’s reasons for finding that internal relocation was safe and reasonable. In doing so, the BIA adopted the IJ’s flawed relocation analysis, which did not afford Singh the presumption of past persecution or shift the burden to the government to prove that Singh can safely and reasonably relocate within India. … In sum, because the BIA erred in its relocation analysis, we grant Singh’s petition to review his claim for asylum and remand to the BIA for consideration in light of Singh v. Whitaker, 914 F.3d 654. … For the reasons set forth above, we GRANT Singh’s petition in part and REMAND to the BIA to consider (1) whether Singh is eligible for asylum because he suffered past persecution on account of statutorily protected grounds by the government or individuals whom the government was unable or unwilling to control; (2) if so, whether the DHS rebutted the presumption of a well-founded fear of future persecution; and (3) whether Singh is entitled to withholding of removal.”

[Hats off to Inna Lipkin!]

Inna Lipkin, Esquire
Inna Lipkin, Esquire
PHOTO: Law Office of Inna Lipkin

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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2. BIA Ignores Evidence, CA2 Remands

https://ww3.ca2.uscourts.gov/decisions/isysquery/b4acba28-c76c-439c-bf1f-032d1674929f/15/doc/22-6420_so.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/bia-ignores-evidence-ca2-remands

Mendez Galvez v. Garland (unpub.)

“The agency entirely overlooked evidence material to the hardship determination in this case: evidence regarding Mendez’s serious back injury and its implications for his ability to support his qualifying relatives through work in El Salvador. … The BIA’s decision is VACATED and the case is REMANDED for further proceedings consistent with this order.”

[Hats off to H. Raymond Fasano!]

H. Raymond Fasano, Esquire
H. Raymond Fasano, Esquire
PHOTO: Sup[er Lawyers Profile
Daniel M. KowalskiEditor-in-ChiefBender’s Immigration Bulletin (LexisNexis)

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What if a brain surgeon or a heart surgeon were routinely engaging in “surgical malpractice?” Wouldn’t it be a cause for grave concern?🤯

Almost every week, sometimes multiple times, the BIA mishandles the basics in potential “life or death” cases. Yet, Garland somehow shrugs it off! This not only adds to the “dehumanization” of migrants (their lives don’t count), but also badly skews the statistical profile that undergirds much of the misguided immigration (non) dialogue. 

If the anti-immigrant, anti-asylum, huge “over-denial” problem at EOIR were addressed with better qualified judges and adjudicators, it would become apparent that many more, probably a majority, of those caught up in the dysfunction at EOIR and the Asylum Office are qualified to remain in the U.S. in some status. And, proper positive precedents would guide practitioners, ICE Counsel, Immigration Judges, and Asylum Officers to correct results without protracted litigation that eventually burdens the Courts of Appeals, causes avoidable remands, fuels “Aimless Docket Reshuffling,” and contributes mightily to the mushrooming EOIR backlog!

As a result, these cases could be prepared, prioritized, granted, and individuals could get on with their lives and maximize their human potential to help our nation — just as generations before them have done including the ancestors of almost all Americans! How soon some of us forget!

 The real, largely self-created, “immigration crisis,” is NOT insufficient “deterrence, detention, and cruelty” at the border! It’s the grotesque failure of all three branches of Government to insist on a fair, timely, well-staffed, professionally-managed, due-process-compliant adjudication, review, and resettlement system for asylum seekers and other immigrants. It’s also the ongoing attempt to “cover up” and minimize our Government’s mistreatment of asylum seekers, particularly those asserting their legal right to apply at our borders and in the interior regardless of status!

The racially-driven “targeting” of asylum seekers at the border is a ruse designed to deflect attention from the realities of human migration, what drives it, and the failure of governments across the board to come to grips with them and to fulfill their legal responsibilities to treat all persons fairly, humanely, and in accordance with correct interpretations and applications of the law!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here’s additional commentary on Singh from my Round Table ⚖️⚔️ colleague “Sir Jeffrey” Chase:

The IJ was really determined to deny on this one. And I guess Vandyke had filled his quota of once in a lifetime for finding fault with the government, and thus had no choice but to dissent.

How would YOU like to face a system “determined to deny” with your life on the line? How would Garland like it?

Actually, under the generous “well-founded fear” standard applicable to asylum (Cardoza-Fonseca/Mogharrabi) and the authoritative guidance in the U.N. Handbook on adjudication, applicants like Singh who testify credibly are supposed to be given “the benefit of the doubt.” Garland has, quite improperly, like his immediate predecessors, allowed this key humanitarian legal principle to be mocked at EOIR! Instead, as cogently pointed out by “Sir Jeffrey,” here the IJ and the BIA actually went the “extra mile” to think of “any reason to deny” — even totally specious ones!

Also, half-baked, legally deficient “reasonably available internal relocation analysis” is a long-standing, chronic problem at EOIR, despite a regulation setting forth analytical factors that should be evaluated. Few, if any, such legitimate opportunities are “reasonably available” in most countries sending asylum applicants!

Moreover, once past persecution is established, the DHS has the burden of showing that there is a reasonably available internal relocation alternative, something that they almost never can prove by a preponderance of the evidence! Indeed, in my experience, the DHS almost never put in such evidence beyond rote citations to generalized language in DOS Country Reports! 

The “judicial competency/bias” problems plaguing EOIR are large and well documented. Yet, Garland pretends like they don’t exist!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

🇺🇸 Due Process Forever!

PWS

03-28-24

⚖️⚔️🛡️ ROUND TABLE CHAMPIONS NAIJ, RIPS EOIR “GAG ORDER!” — PLUS, BONUS COVERAGE: “NAIJ Is An Essential Force For Judicial Independence!” — A “Mini-Essay” By Hon. “Sir Jeffrey” Chase!

Round Table Logo

Round Table, Gag, Chase Essay

The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech

As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.

In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.

This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.

NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration

Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.

Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.

Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.

We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###

The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.

For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831

3/25/24

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge (Retired)
San Francisco Immigration Court
Past President, National Association of Immigration Judges, Member Round Table of Former Immigration Judges
Knightess
Knightess of the Round Table

 

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Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE

By Judge (Ret.) Jeffrey S. Chase

March 25, 2024

In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”

I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.

Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.

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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!

NOTE: I am a proud retired member of the NAIJ.

🇺🇸 Due Process Forever!

PWS

03-26-24

🤪 GARLAND’S BIA DRUBBED AGAIN ON PSG — This Time It’s 1st Cir! — Ferreira v. Garland!

Trial By Ordeal
Under Garland, the BIA’s approach to gender-based asylum has too often remained tethered to the past.  Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Hon. “Sir Jeffrey” S. Chase reports to the Round Table⚔️🛡️:

[Ferreira] [2024.3.21] Opinion

Victory in the 1st Circuit

Hi all: Another win to report, in a First Circuit case in which we filed a joint amicus brief with immigration law professors (and some in our group actually fit within both categories!).

However, the court declined to address our argument regarding the correct nexus standard for withholding claims (as opposed to asylum claims). The reason is that the court found that the BIA misstated one of the petitioner’s particular social groups, such that (according to the circuit court):

In sum, the BIA rejected a PSG of its own devising and not the social group Ferreira advanced. Its characterization substantively altered the meaning of Ferreira’s proffered PSG and amounts to legal error.

The court directed:

On remand, the BIA should carefully consider Ferreira’s gender-based PSG in light of our decisions in De Pena-Paniagua and Espinoza-Ochoa.

Both of those cited decisions were quite favorable to the petitioners.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

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Fear mongering and myth making by politicos of both parties, with the connivance of the media, deflect attention from the real problem: a dysfunctional U.S. asylum adjudication system that hugely and disingenuously over-rejects and under-protects, in addition to being too slow and unconstitutionally inconsistent. Thus, both parties intentionally skew the statistics against asylum seekers and feed racially-driven nativist “talking points” about the border!

The BIA/OIL claim that the gender-based psg is not recognizable is utterly preposterous! It took me fewer than 5 minutes of internet research to find this very recent Trinidad government report recognizing that gender-based violence is an endemic and well-documented problem that disproportionately affects women and girls in Trinidad. While the report sets forth an “aspirational multi-year plan” to address the problem (“willing to protect”), there is no indication that the plan is reasonably effective at present (“but unable to do so at present”).

https://www.eeas.europa.eu/sites/default/files/documents/2024/20240304_spotlight_national_strategic_action_plan_for_trinidad_and_tobago_0.pdf

Knightess
Knightess of the Round Table

Here is some other “choice commentary” from Round Table members:

“A win is a win–again ‘calling’ the BIA on doing the wrong thing!”

“Great job, Team!!  Let’s keep up this winning streak.”

“Wow – great! As Paul would say, another bad Garland/BIA Fiasco. Making up a psg and then denying relief because of it. Funny if it were not so tragic!“

“Yes, especially when they are telling IJs they can’t even determine what PSG fits the facts of the case unless the Respondent gets it just right!  Yet they can make up whatever they want and then say it doesn’t fit the facts or isn’t cognizable!”

“When we were at the International Judges conference that [Paul] organized at Georgetown, all of the international judges said that gender was a recognized psg in their countries—even the countries where women are discriminated against and/or persecuted!”

“Like most of you, I am at a loss to understand how gender, alone, does not meet every requirement of PSG. The BIA position on this is inexplicable, and IMO, at minimum, borders on frivolous.“

Roger that! Intentionally ignoring the obvious and failing in the duty to consistently recognize and prioritize many easy grants of asylum and other protection is the “elephant in the room” for the U.S. justice system! 

No wonder spineless politicos, judges, and the media want to shift attention away from their shared responsibility for a glaringly unjust and inept asylum system to blame the hapless victims of their collective failure — whose lives and futures are on the line!

🇺🇸 Due Process Forever!

PWS

03-22-24

🗽⚖️😎 HUGE SCOTUS WIN FOR DUE PROCESS, JUDICIAL REVIEW, ROUND TABLE! 🛡️⚔️— WILKINSON v. GARLAND (6-3)!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Hon. “Sir Jeffrey” Chase reports:

Hi all: The Supreme Court just issued its opinion in Wilkinson v. Garland, in which our group filed an amicus brief. The Court held that the exceptional and extremely unusual hardship determination in cancellation B cases (involving non-LPRs) is a mixed question of fact and law, and is thus reviewable by circuit courts on appeal. The Court thus reversed the Third Circuit’s determination that it lacked jurisdiction.

The decision was 6-3. Sotomayor wrote the majority opinion; Jackson wrote a concurring opinion, and Roberts and Alito wrote dissenting opinions.

Our amicus brief argued: 

In amici’s experience, whether the facts of a particular case satisfy the “exceptional and extremely unusual hardship” eligibility criteria for cancellation is a mixed question of law and fact.

This decision will have a major impact on cancellation B cases, as the Board’s hardship determinations will now be subject to wide circuit court review.

Here is a link to the full decision:

https://www.supremecourt.gov/opinions/23pdf/22-666_bq7c.pdf

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This case makes a huge difference! Circuit review will ratchet up the pressure on the BIA to cut the “any reason to deny” BS 💩 and start doing a quality review in every case! If not, given the number of cancellation cases in the system, there are going to be lots more Circuit remands that will jack the backlog even higher!

As put by one “Round Tabler,” this will “impact the scholarship and often times lack of analytical rigor by the Board, knowing that it is no longer completely insulated from review of its hardship determinations.” You betcha!

And don’t ever underestimate the adverse impact on due process and justice that occurs when, knowing that its decisions are “immune” from judicial review, the BIA is “pushed by the political powers that be” to cut corners, “crank the numbers,” and “keep the removal assembly line moving!” That’s why political control over the BIA’s decision-making has such an outsized adverse impact on justice for immigrants and undermines the key constitutional due process principle of “fair and impartial justice for all.”

🇺🇸 Due Process Forever!

PWS

03-19-24

😘 NEW “DREAM TEAM” FOR EOIR REFORM? — Judge (Ret.) Dana Leigh Marks & Sen. Chuck Grassley (R-IA)  Blast 💣Garland’s “Muzzling” Of NAIJ, Demand Change! 🤯

Star Chamber Justice
“Justice” —  While totally unjustifiable, it’s perhaps understandable why A.G. Merrick Garland wants to suppress criticism from IJs of his courts’ failure to provide due process and uphold the rights of asylum seekers at the border and elsewhere! It’s a major driver of disorder at the border!

Two items from the indomitable Dan Kowalski @ LexisNexis:

  1. “LEXISNEXIS EXCLUSIVE: How Low Will They Go? – An Outraged Retired IJ Speaks (Because She Can)”

https://www.lexisnexis.com/community/insights/legal/immigration/b/outsidenews/posts/exclusive-hon-dana-leigh-marks-on-eoir-gag-order

Judge Marks says:

. . . .

This broad edict applies even when a judge seeks to speak at an event in their personal capacity and agrees to provide a clear disclaimer that the views expressed do not
reflect an official position of EOIR or DOJ. It means a judge cannot explain the basics of immigration law to a church group interested in sponsoring refugees or even a middle
school civics class. The application of this process to NAIJ officers ignores the well known fact that many reporters operate on deadlines of mere hours and do not provide their questions in advance. It is also hard to understand how EOIR dismisses the clear disclaimer, scrupulously provided, that NAIJ comments do not represent the Department’s views.

Perhaps most puzzling about this turn of events is how this step can be taken during the Biden administration, one which says it seeks to empower federal workers and their
unions. It is simply breathtaking in the worst of ways that the DOJ through EOIR is taking this step in clear violation of the First Amendment. The United States Supreme Court has made it abundantly clear that federal employees don’t check their First Amendment rights at the door when they accept employment. To the contrary, the Court has
recognized the unique “special value” to the public of speech by public employees on matters related to their employment. In stark contrast to EOIR’s position, the Code of
Conduct for U.S. Judges affirmatively encourages federal judges to speak, write, lecture, teach and participate in other activities concerning the law, the legal system and
the administration of justice. And whatever happened to whistleblower protections? Are they suspended when they reveal information which can be viewed as critical of an agency?

In defense of its action, EOIR cites the tepid, generic excuse that it is merely promoting the efficiency of the service it is charged with performing. It asserts that using personal
capacity speech (as opposed to official speech by its designated spokespersons), even with a disclaimer, can have real adverse effects on the agency’s mission. It claims that
the SET process was established to promote public confidence in IJ impartiality, despite clear Supreme Court guidance that judicial partiality is narrowly defined as a lack of bias
for or against a party in the proceeding. If that is not clear enough, that standard was set forth in a decision which protected the rights of judicial candidates to announce their
views on disputed legal or political issues, a bridge NAIJ officers never cross because NAIJ is a nonpolitical professional organization whose members’ personal viewpoints
span the spectrum.

EOIR’s gag order against NAIJ officers is an outrageous and dangerous policy that should not go unnoticed and unremedied. Those of us who can speak must speak out
and take action to prevent this policy change from being continued.”

The Honorable Dana Leigh Marks (retired) served as an Immigration Judge in San Francisco from January 1987 until December 2021. During her tenure she was an active member of NAIJ from the start, serving seven two-year terms as President and two two-year terms as Vice President. Since ending her term as president in 2017 she has served as President Emerita of NAIJ. The opinions expressed here are her personal ones and are not intended to set forth the formal position of NAIJ on the matters discussed. To hear their views, you will have to contact its officers. Uh oh. I guess you can’t…….

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
Retired U.S. Immigration Judge
Past President, National Association of Immigration Judges, Member of The Round Table of  Former IJs.

2. ACROSS THE BOARD OUTRAGE: Sen. Chuck Grassley (R-IA) Sends Garland Scathing Letter: “Completely Unacceptable!”

https://www.grassley.senate.gov/imo/media/doc/grassley_to_doj_-_eoir_disclosures_to_congress.pdf

I write to you regarding concerning allegations that the Biden Justice Department is unlawfully attempting to prohibit its employees from making legally protected disclosures to Congress. It’s been reported that the Justice Department Executive Office for Immigration Review (EOIR) Chief Immigration Judge Sheila McNulty issued an order on February 15, 2024, prohibiting immigration judges from speaking publicly without prior agency approval.1 The news report claims that the issuance of this order comes as some immigration judges have spoken out publicly on significant case backlogs at the immigration court, testified before Congress, participated in panel discussions, and made themselves available to the media.2 It’s been reported that the order prohibits immigration judges from speaking with Congress without prior agency approval, and it’s speculated that Chief Immigration Judge McNulty issued this directive in response to the testimony Immigration Judge Mimi Tsankov gave before Congress last fall.3 In that October 18, 2023, testimony before the Senate Judiciary Committee, Judge Tsankov said that the Justice Department lacked leadership and was ineffective in its management of the immigration courts.4 It’s critically important that immigration judges communicate with Congress particularly when the Biden administration’s leadership and policy failures have created an unprecedented immigration crisis at our Southern Border. If the allegations that the Justice Department has sought to silence immigration judges from communicating with and testifying before Congress are true and accurate, the Biden Justice Department’s conduct is absolutely unacceptable.

. . . .

Sen. Chuck Grassley (R-IA)Official Photo
Sen. Chuck Grassley (R-IA)
Official Photo

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Read the full statements of Judge Marks and Sen.Grassley at the links above.

Thanks for speaking out, Dana, my friend and Round Table colleague! As Dana points out, the Speaking Engagement Team (“SET”) process acts to deter IJs from public speaking at educational and other events. It’s an example of how within DOJ, EOIR “management” gets sidetracked with creating unnecessary bureaucratic “gatekeepers” and “handlers” rather than focusing on due process, fundamental fairness, best practices, and quality control! Those are the things that are broken at EOIR.

The idea that the SET is “necessary” to promote “public confidence in IJ impartiality,” is preposterous in light of the growing body of documentation of racism, anti-immigrant bias, and defective decision-making within Garland’s dysfunctional courts. For sure, EOIR has an extreme “public confidence and institutional bias problem!” But, it’s got nothing to do with the NAIJ speaking to Congress or in any other public forum. Ask the good folks over at the Ohio Immigrant Alliance who just issued a scathing report on racism and other grotesque institutional abuses going on at EOIR on Garland’s watch! See https://immigrationcourtside.com/2024/03/06/%f0%9f%a4%90-busted-eoir-squelches-ijs-union-administration-moves-to-silence-outspoken-uncensored-critic-of-dysfunctional-court-system-news-comes-on-heels-of/.

Also, well-known immigration commentator Nolan Rappaport provided the following helpful resource on Federal employee rights to communicate with Congress:

https://www.justsecurity.org/66433/know-your-rights-conversations-with-congress/

More “Unforced Errors” By Garland

Here’s what Garland should be doing to promote “order at the border:”

  • Prioritize fairness and efficiency in asylum and immigration court adjudications.

  • Respect and maintain the fundamental right of migrants to seek asylum at the border, regardless of manner of entry or transit.

https://wp.me/p8eeJm-9PM

Instead, Garland, once again, has unnecessarily and incompetently, stepped into a “hornet’s nest!” And, the Biden Administration, inexplicably and indolently, has allowed him to do so.  Sen.Grassley is “spot on” in this letter. And, that’s something I don’t often say. 

Now, if the Senator will just call up his colleague Sen. Alex Padilla (D-CA) and get behind the Article I legislation effort, the problem can be solved in a bipartisan manner that will give a huge boost to the quality of justice in America! The evidence that EOIR is not “viable” within DOJ or any other Executive Agency is overwhelming. This is just a graphic illustration of why we need the Article I change that Judge Mimi Tsankov, (Ret) Judge Dana Marks, and many other experts and legislators have been supporting before Congress and in other public forums! See, e.g.https://youtu.be/MEJ093pDGI4%C2%A0.

In the interim, the Administration should immediately appoint an “Immigration Czar” and expert task force along the lines recommended by Heidi Altman of NIJC to supersede Garland’s and Mayorkas’s incompetent and damaging “management” of existing migration programs and policies and lay the groundwork for a smooth transition to Art 1. https://wp.me/p8eeJm-9PM.

DISCLOSURE: I am a proud retired member of the NAIJ.

🇺🇸 Due Process Forever

PWS

03-14-24

😎⚖️🗽

🤐 BUSTED! — EOIR SQUELCHES IJS’ UNION — Administration Moves To Silence Outspoken, Uncensored Critic Of Dysfunctional Court System! — NEWS COMES ON HEELS OF BLOCKBUSTER REPORT ON SYSTEMIC RACISM, BIAS, AND HORRIBLY FLAWED JUSTICE AT EOIR!🤯

Censorship
“AG Garland & EOIR Executives holding a strategy session.”
“CENSORSHIP” “PUBLIC SENTIMENT” “NATIONAL CENSOR” “LOCAL CENSOR” “STATE CENSOR” art by Holmet – Motion Picture Magazine (Feb-May 1916) (IA motionpicturemag111moti) (page 151 crop).jpg
Public Domain

Elliot Spagat reports for AP:

https://apnews.com/article/immigration-courts-judges-union-backlog-751f55a0ae60af5c04d6c0ca420d36ae

SAN DIEGO (AP) — A 53-year-old union of immigration judges has been ordered to get supervisor approval to speak publicly to anyone outside the Justice Department, potentially quieting a frequent critic of heavily backlogged immigration courts in an election year.

The National Association of Immigration Judges has spoken regularly at public forums, in interviews with reporters and with congressional staff, often to criticize how courts are run. It has advocated for more independence and free legal representation. The National Press Club invited its leaders to a news conference about “the pressures of the migrant crisis on the federal immigration court system.”

The Feb. 15 order requires Justice Department approval “to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews).” Sheila McNulty, the chief immigration judge, referred to a 2020 decision by the Federal Labor Relations Authority to strip the union of collective bargaining power and said its earlier rights were “not valid at present.”

The order prohibits speaking to Congress, news media and professional forums without approval, said Matt Biggs, president of the International Federation of Professional & Technical Engineers, an umbrella organization that includes the judges’ union. He said the order contradicted President Joe Biden’s “union-friendly” position and vowed to fight it.

“It’s outrageous, it’s un-American,” said Biggs. “Why are they trying to silence these judges?”

. . . .

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

Read the complete article at the above link.

Ukase
Ukase
Public Domain

Courtesy of my friend Dan Kowalski over at LexisNexis, here’s the text of what is being called the “McNulty Ukase:”

From: Chief Immigration Judge, OCIJ (EOIR)
Sent: Thursday, February 15, 2024 11:53 AM
To: Tsankov, Mimi (EOIR) ; Cole, Samuel B. (EOIR)
Cc: Weiss, Daniel H (EOIR) ; Luis, Lisa (EOIR) ; Young, Elizabeth L. (EOIR) ; Anderson, Jill (EOIR) <

Subject: Public Engagements and Speaking Requests

 

Dear Judges Cole and Tsankov:

 

From recent awareness of your public engagements, I understand you are of the impression that your positions in the group known as the National Association of Immigration Judges (NAIJ) permit you to participate in writing engagements (e.g., articles; blogs) and speaking engagements (e.g., speeches; panel discussions; interviews) without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary. The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present. Please consider this email formal notice that you are subject to the same policies as every EOIR employee. To ensure consistency of application of agency policies—and prevent confusion among our staff—please review the SET policy and work with your supervisor to ensure your compliance with it, effective immediately.

 

Thank you,

 

Sheila McNulty

Chief Immigration Judge

Executive Office for Immigration Review • Department of Justice

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

It’s perhaps no surprise. EOIR is a badly failing agency with an incredible ever-growing backlog of over 3 million cases, no plan for reducing it, antiquated procedures, a disturbing number of questionably-qualified judges (many holdovers from the Trump era), grotesque decisional inconsistencies, poor leadership, a tragic record of ignoring experts’ recommendations for improvements, and that produces a steady stream of sloppy, poorly-reasoned, or clearly erroneous decisions on the “nuts and bolts” of asylum and immigration law that are regularly “roasted” by Circuit Judges across the political spectrum. 

In this context, their desire to strangle criticism from those actually trying to provide justice and due process, against the odds — the sitting Immigration Judges who see the management and systemic problems on a daily basis — is perhaps understandable, if not defensible.

At least where immigration is involved, the Biden Administration’s rhetoric and promises on being “labor friendly” and supportive of Federal workers is unfortunately reminiscent of its pledge to treat asylum seekers and immigrants fairly and humanely and to distance themselves from the racially-driven xenophobic policies of the Trump Administration.

While the NAIJ may be “gagged,” the fight about working conditions and the unrelenting dysfunction at EOIR is far from over!

Sources close to the NAIJ’s parent union, the IFPTE, tell me that the “campaign to call out this atrocity” is “just getting started.”

In statement issued yesterday, IFPTE President Matt Biggs expressed outrage and raised the possibility that the Administration could face tough Congressional questioning on the gag order, which also applies to communications with legislators and legislative staff:

“Just because a highly partisan decision by the FLRA’s board, that is likely to be reversed, limited NAIJ’s ability to collectively bargain, doesn’t mean that NAIJ and its national union IFPTE can’t meet and confer with the DOJ, provide legal services to our members, have officers serve on professional committees, speak to the media, offer training and other services a union provides,” says Biggs. “In fact, for the past four years, NAIJ, with assistance from IFPTE, has provided all of that. We give judges a voice. Judge Tsankov regularly speaks to reporters and recently testified before Congress.  This is an attempt to limit what the press and public know by placing a gag over the mouths of the judges on the front lines. The only thing that has changed in the past four years is an overreach by a federal bureaucrat.”

NAIJ has repeatedly sounded the alarm on the size of the backlog, the need for translators, raised courtroom security concerns and other issues related to immigration adjudication. It has been a strong advocate for judicial independence and questioned why the immigration courts are attached to the Department of Justice, rather than being placed in an independent agency. The National Press Club recently invited both Tsankov and Cole to speak at a news conference on “the pressures of the migrant crisis on the federal immigration court system.”

“We believe that this order and un-American, anti-union act of censorship by McNulty will lead to Congressional hearings,” said Biggs. “Until this matter is resolved, the judges’ national union, IFPTE, will act as the voice for the immigration judges. McNulty may try, but the nation’s immigration judges won’t be silenced.”

As noted by Biggs, over the years, NAIJ leadership has frequently been asked to testify before Congress and meet with staff as an independent counterpoint to the “party line, everything is under control” nonsense that has become a staple of DOJ politicos and EOIR bureaucrats in administrations of both parties in dealing with the Hill as the backlog continued to explode in plain view!

Although the Biden Administration has curiously shown little hesitation in throwing asylum seekers, human rights, and advocates who were a key support group in 2020 “under the bus” in an ill-advised attempt to “out-Trump-Trump” on stupidity and inhumanity at the border, the IFPTE could be a different animal. Representing more than 80,000 government professionals, the union endorsed  Biden/Harris in 2020.

With a hotly-contested, close election underway, Biden can ill-afford to alienate more key support groups, particularly among organized labor.  Why the “geniuses” in the White House and the Biden/Harris Campaign think that going to war with your base is a great, “winning” strategy, is beyond me! Even Donald Trump recognizes the benefit of energizing behind him a loyal and committed (although horribly misguided) “base!”

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

Tellingly, and illustrating this issue’s cosmic importance, the Ohio Immigrant Alliance just released its blockbuster report documenting systemic racism at EOIR entitled “The System Works As Designed: Immigration Law, Courts, & Consequences” —

https://illusionofjustice.org/read/lawcourtsandconsequences

Here’s the Executive Summary:

Executive Summary

This report is based on the experiences of immigrants, lawyers, and immigration court observers, as well as external research. “The System Works as Designed” reveals how U.S. immigration laws, and the courts themselves, were planted on a foundation of white supremacy, power imbalance, and coercive control. For those reasons, they fail to protect human dignity and lives on a daily basis.

While the operations of the immigration courts have frequently been ignored, their outcomes could not be more consequential to immigrants and their loved ones. This report lifts the curtain.

Racism in Immigration Law and Policies

It is clear from the congressional record, and laws themselves, that the Chinese Exclusion Act, Undesirable Aliens Act, Immigration and Nationality Acts of 1924 and 1952, and other laws played on racial and ethnic stereotypes to limit mobility and long-term settlement of non-white immigrants.

The Immigration and Nationality Act of 1965 attempted to address some imbalances, but the Illegal Immigration Reform and Immigrant Responsibility Act basically broke the already contradictory set of laws, making them a landmine for immigrants attempting to seek safety or build new lives here. The REAL ID Act and other post-9/11 laws and policies tightened the vise.

Policy choices made by presidents from every modern administration have attempted to coerce, repress, and reject migration, a basic human survival act, instead of building safe paths people can use.

Death Penalty Consequences, Traffic Court Rules

The U.S. immigration courts were designed to offer the illusion of justice, while failing the people they purport to protect. Dysfunctional elements include:

A quasi-judicial structure that answers to the U.S. Attorney General in the Executive Branch and is not an independent judiciary; is blatantly influenced by ideology; and promotes quantity over quality decision making.

Power imbalances, such as the fact that the government is represented by attorneys 100% of the time, while immigrants often argue their cases without a legal guide. Detained immigrants are forced to “attend” their hearings via grainy video feed, while judges and counsel are together in courtrooms miles away. Yet immigration judges frequently deny requests for expert witnesses to appear remotely, citing challenges with communication and credibility. The deck is stacked.

4

Also, by detaining someone in jail for the duration of their civil immigration case, the government makes it harder for them to get a lawyer to help. The government is also using the psychological, financial, and physical toll of detention to try to break someone’s spirits and get them to give up.

Subjective “credibility determinations,” rife for bias and abuse. A case can be denied based on a judge’s feeling about the immigrant’s testimony, not facts. This is the barn door through which all manner of ignorance, bias, and ideology storm in.

Legal landmines make it harder for people who qualify for asylum to receive it, such as the one-year filing deadline; illogical definition of material support to terrorism; and the Biden asylum ban.

Differing standards of accuracy. Immigrants may be furnished interpreters who speak the wrong dialect. Judges and DHS attorneys may make inaccurate statements about an individual’s evidence or the political conditions of their country. The hearing transcripts can be riddled with gaps instead of key facts. Yet life-altering decisions are made based on this record, and an immigrant has little to no opportunity to object, correct, or explain.

Consider the experience of M.D. a Black Mauritanian man seeking asylum in the U.S. after the late 1980s/early 1990s genocide. An immigration judge questioned his credibility because M.D. did not provide “evidence” that he is Black and Fulani, a persecuted group in Mauritania. M.D. addressed the court, speaking in Fulani, and said, “I am the evidence. I speak Fulani and I am Black.”

The English transcript of M.D.’s hearing is riddled with “(unintelligible)” in place of the names of relatives and locations where important events, such as the murder of his father, took place. There was an interpreter in the room who could have spelled the words out to make the record more accurate and credible. Instead, the record shows big holes in place of material facts, while M.D. was accused of not providing “proof” that he is Black, deemed not credible, denied asylum.

In another case, a Black man seeking asylum was found “not credible” because his interpreter first used the word “canoe” when describing his method of escape, and later said “little boat.” But in his language and, one can argue, in common English, they are the same thing.

Situations like these, memorialized in the case record, are carried into the appeals process where rehearings typically do not take place, compounding the injustices of these mistakes.

Many of the report’s observations echo some aspects my own writings and public speeches over the years since I retired from the bench in June 2016. For example, here’s my speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“ from from an FBA Conference in Austin, Texas in May 2019: 

https://immigrationcourtside.com/wp-content/uploads/2019/05/FBA-Austin-Central-America-—-Intro.docx

While I was speaking during the Trump Administration, sadly, many of my observations remain equally true today, as the Biden Administration and AG Garland have quite inexcusably failed to rise to the occasion by instituting long-overdue due process and quality control reforms at EOIR. Yet, I am struck by how even then, as today, I found reasons to continue to be proud of the accomplishments of the “New Due Process Army” (“NDPA”) and to urge others to continue to  believe that the “light of due process will eventually be relit” at EOIR and that history will deal harshly with the xenophobic urges and anti-asylum attitudes that too often drive policy in administrations of both parties:

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts aren’t much better, having largely “swallowed the whistle” on a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to “defer” to decisions produced not by “expert tribunals,” but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been  granted by Immigration Judges across the country even after Sessions’s blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day “Jim Crows” who have abused the rule of law and human values, at all levels of our system, accountable, before the “court of history” if nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administration’s nativist, White Nationalist policies. That’s what the “New Due Process Army” is all about.

That brings me back to two of my “key takeaways” from the Ohio Immigrant Alliance Report.

First: “Withholding is a true limbo status, though better than being sent back to certain death.” Skillfully and aggressively using the system to save lives, in any way possible, is job one. A life saved is always a victory!

Second, as the report concludes:

Solutions exist, but they require policymakers and legislators to listen to the people with direct, personal experience. Ramata, cited earlier in this report, suggests quicker approval of cases found credible at the outset. Aliou wants judges to put more stock in migrants’ testimony, understanding that persecuting governments are not credible sources about their own abuse. Jennifer, one of the immigration lawyers we interviewed, suggested that Black immigrant organizations and the American Immigration Lawyers Association be involved in crafting a new direction, citing their extensive expertise with how the system works—and fails people.

Bill, another immigration lawyer interviewed for this report, suggests taking a page from the refugee resettlement program when it comes to verifying facts about a case. “Social workers and private investigators [could] interview people and research documents and try to … verify whether [they’re] telling the truth or not,” he said. Bill suggests employment counselors, ESL teachers, and others with specialized expertise could also assist in the processing of cases.

Most importantly, the asylum and immigration system must be reoriented toward prioritizing safety and resettlement, rather than deportation as the default outcome. The forthcoming report, “Behind Closed Doors: Black Migrants and the Hidden Injustices of US Immigration Courts,” will explore these and other solutions.

As I have observed many times, despite the “national BS” on asylum and immigration being traded by Trump and Biden, and the legislative gridlock, there are still plenty of readily available, non-legislative solutions out there that would dramatically improve due process, justice, and the life-saving capacity of the EOIR system. While no single one of them is a “silver bullet” that would solve all problems overnight, each is an important step in the right direction. Taken together, they would substantially improve the quality and quality of justice overall in our U.S. legal system and, perhaps, in the process, save our republic from demise. 

🇺🇸 Due Process Forever!

PWS

03-06-24

This article has been revised to include an excerpt from the IFPTE press release.

FULL DISCLOSURE: I am a proud retired member of the NAIJ.

🏴‍☠️ GARLAND BIA’S MANTRA: “WHEN IN DOUBT, THROW ‘EM OUT!” 🤮 — I Dissent From The Wrong Decision In Matter of AZRAG, 28 I&N Dec. 784 (BIA 2024)!

Star Chamber Justice
The Garland BIA’s tortured pro-DHS logic is a constant trauma for immigration practitioners!

Matter of AZRAG, 28 I&N Dec. 784 (BIA 2024)

https://www.justice.gov/d9/2024-02/4073.pdf

BIA HEADNOTE:

Where a State court order granting a respondent’s motion to vacate a conviction does not indicate the reason for the vacatur, and there is no other basis in the record to independently establish the reason, the respondent has not satisfied his burden to show that the court vacated his conviction because of a substantive or procedural defect in his criminal proceedings.

FOR THE RESPONDENT: William M. Sharma-Crawford, Esquire, Kansas City,

Missouri

BEFORE: Board Panel: HUNSUCKER, PETTY, and CLARK, Appellate Immigration

Judges.

PETTY, Appellate Immigration Judge: [Opinion]

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

SCHMIDT, Judge of the Round Table, dissenting:

I dissent.

This respondent moves to reopen and terminate proceedings. His motion is biased on a valid order of a Kansas State Judge vacating the conviction that was the basis for his removal. I would grant the motion and terminate proceedings.

Contrary to the panel’s claim, the basis for the respondent’s motion to vacate the conviction in state court is clear on this record: the respondent was ineffectively advised by counsel during his criminal proceedings where he pled guilty. Notably, the U.S. Supreme Court has found that failing to properly advise a defendant of the immigration consequences of his conviction is ineffective assistance under the sixth amendment to the Constitution. Padilla v. Kentucky, 559 U.S. 356 (2010).

According to the record, the prosecuting attorney agreed with the respondent’s assertion. On the basis of that agreement and his review of the record, the state judge granted the motion. Thus the record shows that the reason for the action was a violation of the respondent’s sixth amendment rights during his criminal proceedings. There is no evidence that the state court acted “solely for immigration purposes” as the BIA found in Matter of Pickering, 23 I&N Dec. 621, 625 (BIA 2003), rev’d on other grounds, Pickering v Gonzales, 465 F.3d 263 (6th Cir. 2006).  Therefore, the panel’s reliance on Pickering is wrong.

Because there is no conviction supporting the DHS’s charge of removability, they have failed to meet their burden of proof. Consequently, these proceedings must be terminated.

Even if there were ambiguity in the state judge’s order, I would reach the same result. The INA places the burden of establishing removability on DHS by a very high “clear and convincing evidence” standard. INA section 240(c)(3)(A). Consequently, any ambiguities in the DHS’s proof must be construed against them. Therefore, even if I found some ambiguity as to the reason for the state judge’s order, the DHS would still fail to sustain their burden and proceedings should be terminated.

There is no evidence in this record that the state judge acted solely to eliminate immigration bars or for other rehabilitative purposes as was the case in Pickering. Therefore Pickering does not control. To get around this defect, the panel essentially invents a “presumption of immigration rehabilitative purposes” to fill the gap in their reasoning and save the DHS’s case. This attempt to overrule the statutory burden placed on DHS is clearly inappropriate.

For the foregoing reasons the DHS has not established the respondent’s removability by clear and convincing evidence. Therefore, I would grant the respondent’s motion to reopen and terminate proceedings. Consequently, I dissent from the panel’s unjustified denial of the motion.

🇺🇸 Due Process Forever

PWS

02-26-24

🏴‍☠️ THIS WEEK IN “GARLANDING” — “What Me Worry” AG Attains “Verb Status,” Pisses Off WH, & More Tales Of Woe From The Land Where Justice Goes To Die!”

Alfred E. Neumann
Merrick Garland doesn’t worry about injustice in his courts! But, YOU should PHOTO: Wikipedia Commons

THIS WEEK IN “GARLANDING” — True Tales From The “Twilight Zone” Of American Justice!

By Paul Wickham Schmidt

Courtside Exclusive

February17, 2024

garland ( gar’ land) v.t. [garlanded, garlanding] [dv. USAG Merrick Garland via Prof. Laurence Tribe] m. inflict injustice by one in charge, often through inattention, inaction, or dithering. (Ex 1. I pray the judge won’t garland my case. Ex 2. My client was garlanded and deported to death. Ex 3. They will be garlanding asylum applicants at the U.S. border.)

I would love to take full credit for the above verb. But, that honor must go to the inspiring writing of Harvard Professor Laurence Tribe, one of AG Merrick Garland’s former mentors. See https://www.thenewcivilrightsmovement.com/2024/02/gross-abuse-merrick-garlands-former-constitutional-law-professor-is-now-blasting-him/.

By all accounts, President Biden and his White House were outraged this week when they were garlanded by the “Hur report.” Ironically, three years of complaining by some of Biden’s core supporters who helped elect him in 2020 about being systematically “garlanded” at EOIR brought not so much as a raised eyebrow from the WH. Indeed, they might now be viewed as just a preview of Biden’s “Miller Lite” dissing of his supporters and human lives at the border with his inanely enthusiastic support of an attempted human rights “fire sale” by Senate Dems! Obviously, it’s quite a different story when things come full circle and the “chickens finally come home to roost.”

But, enough of that. When we left our DOJ antihero last week he was fresh off paying out $1.2 million of your taxpayer dollars to settle a sexual harassment claim by one of his ex-EOIR employees! See https://immigrationcourtside.com/2024/02/09/%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97%F0%9D%90%97-sex-the-courthouse-%F0%9F%A4%AF-a-tragicomic-%F0%9F%8E%AD-series-starring-judge-merrick-garland-dag-lisa-mo/.

You might think that’s hard to top! But, you would be wrong! Let’s get started on this week’s trip around “the land where due process and fundamental fairness fear to tread!” 

  1. No Due Process In The Omaha Immigration Court

The ACLU released it’s report condemning Garland’s Omaha Immigration Court for a plethora of due process abuses. See https://www.aclunebraska.org/en/press-releases/new-report-finds-omaha-immigration-judges-routinely-compromise-peoples-rights.

Among the “lowlights:”

  • The project focused on pretrial hearings that can encompass pleadings, scheduling and other technical matters. The average observed hearing ran under four minutes, a rapid-fire pace to cover all of a hearing’s required steps.

  • Judges advised people of their rights in only 18% of the observed hearings. Most often, this involved reading rights to everyone in a group instead of individually.

  • Immigration courts are required to provide interpretation in the preferred language of the individual appearing at a hearing at no cost to the individual. The court frequently failed to provide Central American Indigenous language interpretation. This impacted roughly four out of five individuals who preferred to speak in a Central American Indigenous language.

  • In about one in five observed hearings, the individual was not represented by an attorney.

Of course, one might wonder why it is the responsibility of the ACLU to ferret out things that Garland should have discovered and corrected himself. But, no matter. Those poor souls whose lives and future are in the hands of the Omaha Immigration Court can expect to be garlanded.

2) Shenanigans in Chicago

Dan Kowalski reports:

IJs hide the ball; find the secret list or lose your case

Friends,

Immigration court practitioners in many cities now face a new hurdle: find, and adhere to, a secret list of IJ procedural preferences (requirements, actually)…posted, in one case, in the “pro bono room” of one court.  NOT online anywhere.  Oh, and it changes frequently, and without warning.  See the attached sample from Chicago.

Practitioners have complained to EOIR, so let’s see what happens.

 

I have a funny feeling that PWS may have a thing or two to say about all this.

DPF!

2024.02.05 – EOIR Chicago IJ Hearing Preference Sheet

Indeed I do, my friend, indeed I do. This one hits “close to home.”

Back in 2006 my friend and Round Table colleague Judge John Gossart of Baltimore headed a group of IJs who took on the monumental task of writing the first Immigration Court Practice Manual (“ICPM”). Based on Judge Gossart’s own “local court rules and best judicial practices” developed over decades, the ICPM built on the success of the award- winning BIA Practice Manual, created and issued during my tenure as BIA Chair. 

One of the key features of the ICPM is that  It superseded and erased all then-existing “local rules.”

Those few of us IJs who did public education events — under the watchful eye of our HQ “handlers” — were encouraged to tout and promote the ICPM as the “definitive guide” to successful practice before the courts, which, of course I dutifully did as reflected in my speeches from those days. I believe we even had “Q&A” sessions with the local immigration bar to promote and explain the ICPM.

Now, after years of gross mismanagement under Trump and Biden, things have come full circle. The oft-conflicting, idiosyncratic, and frequently inaccessible or counterintuitive “local rules” that the ICPM was created to eliminate evidently have returned with a vengeance.

Meanwhile, the very substantial amount of time, resources, credibility, and effort that went into creating, distributing, and implementing the ICPM has been a colossal waste of taxpayer resources because the last two Administrations have failed in their duty to competently and professionally administer EOIR!

And let’s not leave out Congress! If ever there were a need for a new, independent, professional, expert Article I Court System it’s EOIR. Yet, although Dems have introduced bills, the GOP has expressed no interest in Article I, nor has it been a priority for Congressional leadership and the Administration. It wasn’t even “on the radar screen” during the failed Senate “debate” on the immigration system.

Both Chicago Immigration Court practitioners and those IJs, current and past, who devoted their professional time and energy to the ICPM have been garlanded.

3) ADR On Steroids In Virginia

A long-time DMV immigration lawyer told the “Courtside I-Team” this week:

I routinely have MCHs listed as “in person” that are actually by Webex (I had one today). I also have an Individual on Thursday listed as Webex, but I received an email at 4:00 PM today stating that this was an error, and it was actually in person. I replied that I could not attend in person, as I have too many other cases and family issues to rearrange my schedule at the last minute. We’ll see what happens, but all this is typical of an agency that could care less about applicants, practitioners or due process of law. Take care.

For decades, practitioners and experts had been begging DOJ and EOIR to enter the 21st century with automation. Dishearteningly, now that automation has belatedly arrived at EOIR, it’s being used to severely diminish customer service rather than improve it!

It seems that every whim, irrationality, inefficiency, and inconvenience that developed at EOIR over years has now been “automated” to maximize the trauma and stress inflicted on those appearing before these broken courts. As this example points out, that has led to “Aimless Docket Reshuffling (“ADR”) on steroids!”

And here’s why automated ADR is such a powerful tool! Some practitioners have told me that it allows EOIR to unilaterally schedule them to be in three or four different courts at the same time, with almost no notice. Then, it’s up to the lawyer to file individual  “motions to reschedule” to clean up EOIR’s mess. 

Sometimes they are granted, sometimes denied without any rationale. All of this leads to more work and case shuffling but, importantly, without ever getting to the merits of any case! 

Meanwhile, the backlog grows exponentially and the stress levels on the private bar and the staff ratchet up.

There might be surer ways to destroy a court system, but none come immediately to mind. This is garlanding at its best!

4) Another “F” In “Immigration Law 101” From The 3rd Circuit

This from Dan Kowalski at LexisNexis:

CA3 CAT Remand (Somalia) – Herrow v. Atty. Gen.

https://www.govinfo.gov/content/pkg/FR-2024-02-12/pdf/2024-02829.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-cat-remand-somalia—herrow-v-atty-gen

“[W]e conclude that the BIA, in deciding his CAT claim, failed to consider evidence favorable to Herrow. For that reason, we will remand his petition as it applies to that claim. … Herrow claims that the BIA and IJ erred in denying his CAT claim and in finding that (1) he is unlikely to face torture and (2) the Somali government would not acquiesce in such torture. Because the BIA and IJ ignored evidence favorable to Herrow, we will grant his petition in part and remand for a more comprehensive review of the evidence. … To establish a likelihood of future torture, the record must demonstrate an aggregate risk of torture to the noncitizen that exceeds fifty percent. In making this determination, the IJ must address what is likely to happen to the petitioner if removed, and whether “what is likely to happen amount[s] to the legal definition of torture.” In answering these questions here, the BIA and IJ found that Herrow did not demonstrate a likelihood of torture. We conclude, however, that this determination could not have been made if all the evidence presented by Herrow had been properly considered.”

[Hats off to Christopher M. Casazza and Caitlin J. Costello!  Audio of the oral argument is here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

Being wrongfully denied CAT is no small matter, particularly if the USG is threatening to send you to Somalia. Lets get a glimpse of what happens in Somalia, courtesy of the latest report from our State Department:

Government security forces, including NISA and the Puntland Intelligence Agency (PIA), detained boys and adult men in the same facility and threatened, beat, and forced them to confess to crimes, according to Human Rights Watch.  There were reports of rape and sexual abuse by government agents, primarily members of the security forces.  The Human Rights Center, a local nongovernmental organization (NGO), reported two Somaliland police officers, area commissioner Hassan Ismail and Mustafe Yusuf Dheere, raped Nimo Jama Hassan on June 4 in Caynabo (see sections 1.g. and 6).

Al-Shabaab imposed harsh treatment and punishment on persons in areas under its control (see section 1.g.).

Torture and other cruel, inhuman, or degrading treatment or punishment at the hands of clan militias, some of which were government-affiliated, remained frequent.  A strong and widespread culture of impunity continued, due mainly to clan protection of perpetrators and weak government capacity to hold the guilty to account.

You might think that would lead Garland and his subordinates to take extra care to get these cases right. But, you would be wrong. Dead wrong in many cases. “Good enough for government work” is the touchstone of garlanding. 

By all accounts, Garland was a stellar student during his Harvard Law days. But, not so much some of his EOIR judges at the trial and appellate levels, particularly some of the “Sessions/Barr holdovers” who appear to have been appointed to the bench primarily because they were viewed as likely to deny protection without regard to law or facts. (I’ll concede that Barr and Sessions were wrong about some of their appointments who turned out, perhaps against  the odds, to be fair judges.)

Far too many EOIR judges receive “Fs” from the Courts of Appeals on the basics of immigration and asylum law, even though most mistakes never get to the Article III Courts or manage to otherwise wend their way through the system, thereby endangering lives.

Mr. Herrow was garlanded, but survived (at least for now) thanks to the work of his lawyers and the Third Circuit. 

Well, folks, that’s this week’s wrap from Gar-Land, “the land that justice forgot!” But, stay tuned to Courtside for future updates on garlanding and its victims! 

What’s on the horizon: In March, a final report expected from AILA Ohio on systemic racism at EOIR! Should be a great read!

🇺🇸 Due Process Forever!

PWS

02-17-24

👩🏾‍⚖️🙏 HON. ROSALIND K. MALLOY (1942-2024), U.S. Immigration Judge

Hon. Rosalind K. Malloy
Honorable Rosalind K.Malloy (1942-2024)
U.S. Immigration Judge
PHOTO: the obituary app.com

https://osheafuneral.com/tribute/details/6700/The-Honorable-Rosalind-Malloy/obituary.html

In Memory of The Honorable Rosalind K. Malloy 1942 – 2024

Obituary

The Honorable Rosalind K. Malloy, of Marlton, NJ, passed away on February 7, 2024, at the age of 81. Loving daughter of the late Daniel and Annie. Cherished sister of Dr. Tyrone Malloy, and predeceased by Ann, Daniel, Joyce, and Marcus. Adored by many nieces and nephews. Judge Malloy was appointed as an Immigration Judge in December 1998. Prior to her appointment to the Immigration Court in Philadelphia, Judge Malloy served as an Immigration Judge at the Immigration Court in Los Angeles from December 1998 to December 2001. She received a Bachelor of Arts degree in 1964 from Hunter College, City University of New York; a Master of Arts degree in 1971 and a Masters of Education degree in 1975, both from Teachers College, Columbia University; and a Juris Doctorate in 1979 from Rutgers University. Judge Malloy was an assistant district counsel with the former Immigration and Naturalization Service in New York from 1995 to 1998. From 1993 to 1994, she served as a hearing officer with the Georgia Department of Corrections in Atlanta, Georgia. She worked as an assistant district attorney in New York from 1984 to 1989. Previously, Judge Malloy served as a teacher/guidance counselor with the New York City Board of Education and she taught biology at John F. Kennedy High School, Bronx, NY for 15 years. She was a Peace Corps. volunteer in Nigeria for several years. Judge Malloy is a member of the New York, Pennsylvania, and Georgia Bars. Cremation Private.

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Although I ran into Judge Malloy at various events during my EOIR career, and reviewed her decisions while I was a BIA Appellate Judge, I never had the pleasure of working with her or really getting to know her on a personal level.

But, based on the outpouring of heartfelt comments from those who knew her, gathered on our “Round Table Communications Network” (“RTCN”), established and maintained by Hon. “Sir Jeffrey” Chase, she was a beloved and valued friend and colleague to all around her during her distinguished legal and judicial career. 

I think this quote from retired Judge Bruce J. Einhorn best captures the feelings of those knew her well:

Thanks for sharing. This is very sad news. I had the privilege of serving as a judge with Ros in LA. She was a fair, decisive, humane, and witty jurist, and a wonderful colleague.  May her memory be a blessing.

A moving and fitting tribute to a life of achievement well-lived in law and society. 

Rest in Peace!

🇺🇸 Due Process Forever!

PWS

02-11-24

🗽⚖️😎👍 ANOTHER “W” FOR THE GOOD GUYS 😇 — ROUND TABLE 🛡️⚔️ ON THE WINNING TEAM AGAIN, AS BIA REJECTS DHS’S SCOFFLAW ARGUMENTS ON NOTICE! — Matter of Luis AGUILAR HERNANDEZ — “Sir Jeffrey” 🛡️ Chase Reports!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

A Victory before the BIA!

Hi All: I hope you are not getting tired of all the winning. Today, the BIA issued a precedent decision on the whole Pereira and Niz-Chavez jurisdictional issue involving service of a defective NTA (link attached) in which our Round Table submitted an amicus brief drafted for us by our own Sue Roy.And the BIA actually agreed with us!!!

The holding:

The Department of Homeland Security cannot remedy a notice to appear that lacks the date and time of the initial hearing before the Immigration Judge by filing a Form I-261 because this remedy is contrary to the plain text of 8 C.F.R. § 1003.30 and inconsistentwith the Supreme Court’s decision in Niz-Chavez v. Garland, 593 U.S. 155 (2021).

Here’s the link to the full decision:

https://www.justice.gov/d9/2024-01/4071.pdf

Of course, our brief was not acknowledged in the Board’s decision.

A thousand thanks to Sue and to all in this group who have repeatedly signed on in support of due process.

As a reminder, we still await a decision from the Supreme Court on whether Pereira and Niz-Chavez extend to in absentia orders of removal. Oral arguments in that case were heard earlier this month, and our brief was mentioned in response to a question by Chief Justice Roberts.

Best, Jeff

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Hon. Susan G. Roy
“Our Hero” 🦸‍♂️ Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Knightess
Knightess of the Round Table

Want to meet Judge Sue Roy in person and learn from her in a small group setting? You’re in luck! (HINT: She’s not only a very talented lawyer and teacher, but she’s also very entertaining and down to earth in her “Jersey Girl Persona!”)

Jersey Girls
“Don’t mess with Jersey Girls! They’ll roll right over you — in or out of court.”
Creative Commons License

The Round Table 🛡️ will be well-represented by Judge Roy, Judge Lory Diana Rosenberg, and me at the upcoming Sharma-Crawford Clinic 7th Annual Immigration Court Trial Advocacy College in Kansas City, MO, April 24-26, 2024! We’ll be part of a  faculty of all-star 🌟 NDPA litigators who are there to help every attendee sharpen skills and reach their full potential as a fearless litigator in Immigration Court — and beyond!

Here’s the registration information:

🗽⚖️😎 SEE YOU AT THE SHARMA-CRAWFORD CLINIC TRIAL COLLEGE IN K.C. IN APRIL! — Guaranteed To Be Warmer Than Last Saturday’s Playoff Game!

Kansas City here we come! Hope to see you there!

Fats Domino
“Walk in the footsteps of the greats! Join us in KC in April!” Fats Domino (1928-2017)
R&B, R&R, Pianist & Singer
Circa 1980
PHOTO: Creative Commons

🇺🇸 Due Process Forever!

PWS

02-01-24

⚖️🗽🎭 HON. “SIR JEFFREY” CHASE HELPS WATERWELL CELEBRATE 20 YEARS OF SOCIAL JUSTICE EDUCATION THROUGH THEATER!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“Sir Jeffrey” writes:

https://www.instagram.com/reel/C15BxTdPD8T/?igsh=eXFtYjY3czY5eDVv

I am featured in the attached “20 Stories for 20 Years” video for Waterwell’s 20th anniversary with Kristin Villanueva, the star of the play and film versions of “The Courtroom.”

Waterwell is the theater company co-founded by the actor Arian Moayed that has been a great advocate on behalf of immigrants.

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Congrats, my friend and Round Table colleague, to you and to Waterwell!👏

Come to think of it, “Sir Jeffrey” is a pretty good moniker for an actor, as well as a leading warrior of the Round Table!🛡️⚔️

And, certainly, Immigration Court is a continuing human drama. Some would say “Repertory Theater of the Absurd!”🎭🤯

🇺🇸 Due Process Forever!

PWS

01-12-24

🛡️⚔️ ROUND TABLE FILES AMICUS BRIEF IN SUPPORT OF CERT PETITION —- ISSUE: For Judicial Review Of Non-Discretionary Immigration Determinations! — Bouarfa v. Mayorkas

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Here are links to our brief and the Petition for Cert:

2023 01 02 — Bouarfa v. Sec. — IJs Amicus Brief

Bouarfa – Petition for Certiorari

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Richard W. Mark, Esquire
Richard W. Mark, Esquire
Partner
Gibson Dunn
New York
PHOTO: Gibson Dunn

Many thanks to Richard W. Mark, Esquire, and his team at Gibson Dunn for their pro bono representation on our brief!

🇺🇸 Due Process Forever!

PWS

01-05-24

🤯 PROVING MY POINT: “Justice for asylum seekers and other migrants shouldn’t be this difficult in Garland’s courts!” — Despite “Happy Ending,” 600-Day Ordeal In What Should Have Been “Day 1 Grant” To Afghan Ally Shows Deep-Seated Problems @ Garland’s DOJ/EOIR & Human/Operational Consequences Of That Failure!

Star Chamber Justice
AG Merrick Garland’s methods for treating allies and friends of America when they apply for asylum in his “courts” are highly questionable and demonstratively counterproductive. Did the DC Circuit use “trial by ordeal” during Garland’s tenure? If not, why is it OK for EOIR?

From Human Rights First (“HRF”):

https://humanrightsfirst.org/library/ice-pushes-to-deport-asylum-seeking-afghan-incarcerated-in-the-united-states/

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HELPING AN AFGHAN INCARCERATED IN THE UNITED STATES EARN ASYLUM

Mohammad[1] is an Afghan citizen of the Hazara ethnic minority and Shi’a religion, who fled Afghanistan after repeated threats to his life following the Taliban’s consolidation of power in 2021. He escaped by traveling through the treacherous and only available route to the United States to seek asylum.

In Afghanistan, Mohammad was a professor with a history of advocacy for women’s rights and for victims of the Taliban and other extremist groups. Mohammad’s wife, who worked for a U.S. government-funded nonprofit organization in Afghanistan. Due to her work, she has an initially approved Special Immigrant Visa application that also gives Mohammad a path to permanent residence in the United States.

Despite this, Mohammad was criminally prosecuted for entering the United States to seek asylum.  He spent 7 months in prison before he was transferred to U.S. Immigration and Customs Enforcement (ICE) custody, where he could only then begin to pursue his asylum claim. ICE repeatedly denied Mohammad’s release into the community despite his having permanent resident family in the United States ready to sponsor and receive him.

Mohammad was forced to undergo his asylum case without an attorney while detained in immigration jail. After being held for one year, an immigration judge denied Mohammad’s asylum claims despite extensive evidence that he survived multiple attacks on his life by the Taliban and ISIS-K, and that the Taliban continue to search for him. The judge also dismissed irrefutable evidence of the significant risk he would face due to his ethnic and religious minority status if forced to return to Afghanistan, and the escalating violence imposed by the Taliban.

Mohammad’s story was detailed by the Associated Press.  The article provided “a rare look inside an opaque and overwhelmed immigration court system where hearings are often closed, transcripts are not available to the public and judges are under pressure to move quickly with ample discretion” and highlights Human Rights First’s efforts to find justice for Mohammad.

The United States should not deport Afghan allies—especially not those like Mohammad, who have courageously fought for human rights in Afghanistan, are members of ethnic and religious minority groups, and have family eligible for SIV status—all factors that would lead to certain risk of persecution and torture at the hands of the Taliban if forced to return.

We argued that Mohammad was subjected to unreasonably prolonged incarceration. He deserved to live freely in the United States and be reunited with his family while he sought asylum.

As Human Rights First acted on Mohammad’s case, we updated this blog with details of that effort.  Please follow this link for more on Mohammad’s story.

December 22, 2023

Mohammad’s journey has been long – he traveled from Afghanistan to South America, through the Darien Gap to the border, to ICE detention, and more – but it has come to a successful conclusion.

Our attorneys were successful in stopping the Department of Homeland Security from deporting Mohammad back to Afghanistan. We filed a Motion to Reopen Mohammad’s case and then filed a new asylum application. We made multiple parole requests to get Mohammad released. We filed for Temporary Protected Status for Mohammad, arguing that it is the U.S. government’s long-standing policy to release any individual who is prima facie eligible for TPS. We contacted government officials and advocated for Mohammad’s release for his sake and for his family — two small children and his wife, whose application through the Special Immigrant Visa program has long been approved. Our request to have his TPS application expedited was denied.

With our partners at the law firm of Akin LLP, we prepared Mohammad for his December 13 Individual hearing before a new judge in Dallas Immigration Court. We gathered additional evidence, spoke with eyewitnesses, consulted with an expert, and filed all necessary filings.

Finally, on December 20, 2023, 602 days after he first arrived in the United States, Mohammad was granted asylum. The immigration judge found that Mohammad had suffered persecution due to his political opinions and ethnicity.

Mohammad was released from detention on December 22, 2023, and will soon reunite with his niece in Michigan. Human Rights First and Akin LLP will now work to reunite Mohammad with his wife and children and help him to pursue a dignified life in the relative safety of the United States.

December 12, 2023

Mohammad is scheduled for an Individual Hearing on December 13.  We are very concerned about the possibility of his facing more detention even though he has an incredibly strong case with multiple claims to asylum.

Mohammad is an ethnic Hazara Shia Muslim who was an outspoken law professor and advocate on behalf of victims of Taliban terrorist attacks. His wife was employed by a U.S.-funded organization, and was granted COM approval for her Special Immigrant Visa.  Mohammad’s two brothers converted to Christianity, a crime punishable by death; Mohammad fears retribution by the Taliban due to their close family relationship and because they lived in the same building unit. In recent months, the Taliban have visited their home in Afghanistan multiple times.

We continue to believe and will argue that Mohammad should have never been detained in the first place.

December 2, 2023

On December 1, USCIS denied Human Rights First’s request to expedite Mohammad’s application for Temporary Protected Status (TPS). At the time of our request, Mohammad had been in detention for over 550 days.

We argued for expedited processing of his TPS application based on urgent humanitarian reasons  — he survived an ISIS-K bombing and an attempted gunpoint abduction by the Taliban — and the national interest of the United States.

We anticipated that the filing of Mohammad’s TPS application would be sufficient for DHS to release him, as he clearly meets the prima facie eligibility requirement. It is a long-standing U.S. government policy that “once granted TPS, an individual cannot be detained by DHS based on their immigration status in the United States.”

Unfortunately, our parole requests have repeatedly been denied, even after the submission of proof of TPS filing and of Mohammad’s wife’s COM approval for her Special Immigrant Visa (SIV).

September 25, 2023

Following the immigration judge’s erroneous denial of Mohammad’s asylum claim, he was connected with a pro bono attorney at Human Rights First to timely appeal that decision. Although ICE argued that Mohammad waived his right to appeal during the final immigration court hearing, experts, including former immigration judges, have reviewed the court transcript and agree with Human Rights First that Mohammad did not receive a fair hearing or knowingly waive his right to appeal. Unfortunately, the Board of Immigration Appeals summarily dismissed Mohammad’s appeal due to that purported waiver.

Human Rights First then filed a motion to reopen his removal proceedings directly with the Immigration Court. With the assistance of Akin Gump LLP, Mohammad also filed a petition for review of the BIA’s decision.[2]

On September 21, Mohammad’s motion to reopen before the immigration court was granted, despite the government’s continued opposition, winning him the opportunity to present his evidence for asylum again but this time with the assistance of an attorney and a new judge. That same day, the Department of Homeland Security (DHS) announced that the Secretary has redesignated Afghanistan for Temporary Protected Status, which will provide an additional path to temporary protection from deportation for Mohammad. Human Rights First will continue to defend Mohammad’s case until he secures protection for himself and his family.

[1] full name withheld due to security concerns for his family

[2] this petition will be voluntarily dismissed as Mohammad’s motion to reopen removal proceedings was separately granted by an immigration judge

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I said it yesterday on “Courtside.”

https://immigrationcourtside.com/2023/12/26/🌲under-your-tree-a-gift-🎁-from-sir-jeffrey-chase-of-the-round-table-🛡️-asylum-in-the-time-of-m-r-m-s/.

And, “bingo,” Garland and his inept minions at EOIR and DOJ furnish a great example of a backlog-building, due-process denying, expertise-lacking, dysfunctional, illogical  “court” system that is damaging humanity while undermining U.S. justice and democracy in so many ways!

The full scope of USG failure is on display in this saga:

  • Prosecutorial abuse;
  • Coercive detention;
  • Denial of counsel;
  • Bad judging at both trial and appellate levels of EOIR;
  • Lack of asylum expertise;
  • Absence of positive precedents granting asylum in recurring situations like Afghanistan;
  • Ignoring evidence;
  • Punishing allies;
  • Disregarding potential solutions;
  • Backlog-building, totally unnecessary “Aimless Docket Reshuffling;”
  • Squandering USG and NGO resources;
  • Alienating the NGO community;
  • Mistreating those we eventually will be welcoming and relying upon in our society;
  • Generating unnecessary litigation;
  • Promoting arbitrary and inconsistent results.

The HRF report also notes the supportive role of former Immigration Judges in obtaining justice for Mohammad.

As renowned asylum expert Eleanor Acer, Refugee Protection Director at HRF, said of this case on X: 

So relieved that he was finally granted asylum, but I continue to be appalled that people seeking asylum in the US often face so many obstacles & injustices.  Senators & Biden officials should focus on staffing & steps for accurate & just decisions, not more barriers & cruelty.

Yup! Our leaders “just don’t get it” when it comes to human rights, immigration, and the reality of forced migration. The costs to humanity of their failures is incalculable! 

Institutionalizing “accurate and just decisions” is something that has largely eluded Garland — despite his long service as an Article III Judge and his near-elevation to the Supremes. Many of us, obviously incorrectly, believed that with his judicial background and reputation — and few other real priorities on his plate given his recusal from the Trump prosecutions — Garland would be the AG who would finally fix EOIR and push the transition to Article I status. Instead, he has allowed EOIR to drift and deteriorate on his watch, with destruction of human lives and the undermining of justice in America as consequences!

All the punitive measures Congress is discussing will make things worse! The legislators and the politicos “running” this dysfunction are completely detatched from reality! (Reportedly, Secretary Blinken and other Administration politicos are now in Mexico looking for more “ guaranteed to to fail yet cause more human misery” ways to “enforce their way” out of a humanitarian crisis that is not at core a law enforcement problem at all!)

EOIR and the BIA require senior leaders who are practical experts in asylum law, who put due process and fundamental fairness first, and who are proven problem solvers — not part of the problem as is now the case. Unless and until we get an AG and senior DOJ leaders who recognize both the problems and the (now unrealized) opportunities at EOIR, American justice and democracy will continue to suffer! And human lives will continue to hang in the balance!

🇺🇸 Due Process Forever!

PWS

12-27-23

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

Four Horsemen
“Sir Jeffrey” tells us how to use “the law as a sword” to defend against the BIA’s anti-asylum precedent in M-R-M-S-. Don’t let yourself and your clients be “shredded and trampled” by BIA panels wielding deadly, hyper-technical, counterintuitive, overly restrictive asylum precedents designed to promote and support “any reason to deny!”
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.jeffreyschase.com/blog/2023/12/24/asylum-in-the-time-of-m-r-m-s-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Asylum in the Time of M-R-M-S-

Introduction

In 2017, while Matter of L-E-A-1 was pending before the BIA, I attended an immigration law conference at which Professor Jon Bauer posed the following “thought experiment”:

A Nazi official threatens to kill all the Jews in a town unless a Jewish criminal, who has committed several robberies and murders and is suspected to be hiding in the area, is turned over to the authorities or turns himself in.

Is this persecution on account of religion?

The answer is obviously yes. Those in the town find themselves at risk of persecution on account of their religion. It would seem impossible for anyone possessing knowledge of our asylum laws (or just plain common sense) not to understand this.

However, with its decision in Matter of M-R-M-S-,2 the Board of Immigration Appeals has managed to create a test for nexus that would lead to the opposite conclusion.

One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that; bemoaning the fact that regulations that are more than two years overdue could have prevented this; and suggesting that the correct course of action for the Attorney General to take at this point would be to vacate this decision in anticipation of said forthcoming rulemaking.

But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result. I hope that some of what follows will prove helpful, and that it will encourage further thought and conversation on this topic.

Legal Strategies in light of M-R-M-S-

  1. Distinguish your case based on the facts

In M-R-M-S-, the Board chose for its precedent a case surprisingly devoid of facts. The entire factual summary consists of three sentences. A criminal cartel forced the respondents off of their land “because the cartel wanted the land for its own purpose. The cartel killed the lead respondent’s grandson for unknown reasons, although the respondents believe it was related to the cartel’s efforts to obtain their land. The cartel also forced other families off of land in the same area.”

This summary makes no mention of how family membership might have been a factor; it only says the cartel wanted the land for its own unstated purpose. It can be argued that the decision simply establishes that cases asserting mixed motives need to present more than one motive.

Instead, the Board leaped to a much broader and more damaging conclusion that wasn’t even suggested by the above facts, namely, that targeting members of a family for purposes of achieving another non-protected ground renders the family membership “incidental or subordinate,” and thus lacking the nexus required for asylum or withholding of removal protection.

Tip: Distinguish your facts from those in M-R-M-S-.

Emphasize how family or another protected ground played a significant role in the applicant being targeted for persecution. Note that merely mentioning that other family members were also harmed does not in itself establish a nexus on account of family membership.

Tip: Employ the Board’s test in Matter of S-P- when applicable.

In Matter of S-P-,3, the BIA looked at when government prosecution might actually be persecution on account of political opinion. And one of the warning signs it mentioned occurs when the punishment is clearly out of proportion to the conduct in question. So under S-P-’s test, if someone charged with jaywalking is detained at length and beaten by the police, the reasonable conclusion is that the punishment wasn’t actually about the jaywalking.

One can transpose this approach to the particular social group consisting of family by arguing that the same logic applies to gang punishment for failing to pay extortion. Particularly where the amount being sought by the gang or cartel isn’t that much, when the response to the failure to pay is to threaten to severely harm or kill a family member of the target of extortion, a reasonable conclusion under S-P- would be that this isn’t simply about the money. A gang or cartel can seek a financial goal, but at the same time can develop an animosity against a family resistant to its demands.

Moving on, the use of the word “subordinate” in the Board’s most recent holding is of interest, for the following reasons.

  1. The fall and rise of the Board’s “subordination” criteria for nexus

In its first attempt to define the “one central reason” language adopted by Congress in 2005, the BIA in Matter of J-B-N- & S-M-4 recognized in the last paragraph of page 212 of that decision that the standard did not require a central reason to be “dominant” in relation to other reasons for persecution. In fact, in a footnote, the Board further explained: “The problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”

Yet two pages after rejecting a hierarchical approach to nexus, the Board defined the new standard as a reason that “cannot be incidental, tangential, superficial, or subordinate to another reason for harm.”

The problem with the inclusion of the word “subordinate” is obvious. It means that once an adjudicator finds a reason they consider to be the dominant one, their inquiry is over, and, as the Board itself warned, all other motives become irrelevant.

The Third Circuit, in Ndayshimiye v. Attorney General of U.S.5 rejected the Board’s standard for precisely this reason: its use of the word “subordinate” was found by the court to be no different from the “dominance” test that the Board purported to reject. To quote the Third Circuit:

This plain language indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant. The BIA acknowledged this in refusing to define a central reason within the meaning of § 208 as a “dominant” motivation. Id. at 212. The same logic forbids an interpretation that would impose a mirror image of the rejected “dominance” test: the requirement that a protected ground, even if a “central” reason for persecution, not be subordinate to any other reason.

Interestingly, following this rejection of its standard, the BIA reacted by dropping the word “subordinate” from its stated legal standard.  For example, in a subsequent (2011) precedent, Matter of N-M-, 6 the Board cited its earlier decision in  J-B-N & S-M-, but made no mention of that case’s incidental/tangential/superficial/subordinate language at all. Rather, the Board said:

In cases arising under the REAL ID Act, the “protected ground cannot play a minor role in the alien’s past mistreatment or fears of future mistreatment.” Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. Instead, a [noncitizen] must demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.7

The italicized sentence states a “but for” causation standard which we will discuss further below. In fact, it seems to be an identical standard to that employed by the Fourth Circuit, whose approach the Board criticized in M-R-M-S-.

Years later,  in the aforementioned Matter of L-E-A- (decided in 2017), the Board amended its earlier language in J-B-N- & S-N- as follows:

The protected trait, in this case membership in the respondent’s father’s family, “cannot play a minor role”—that is, “it cannot be incidental [or] tangential . . . to another reason for harm.”8

Notice how an ellipsis is used to drop the word “subordinate” from the definition. So the Board seemed to understand for quite some time that the legal standard it enunciated could not include a dominance test (although it would then proceed to apply a dominance test in practice, as numerous circuit court reversals have demonstrated)

But now, without explaining the reason for  its sudden reversal, the Board has in M-R-M-S- reverted to its original flawed standard.  Here’s the quote:

A protected ground that is “incidental, tangential, superficial, or subordinate to another reason for harm” does not satisfy this standard.  Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. 9

Furthermore, the Board chose to reassert its dominance requirement in a case in which the facts mention only one reason, and a vague one at that – that “the cartel wanted the land for its own purpose.” A dominance test is meaningless where there is only one reason asserted for the persecution.

But what if the revived dominance test were to be applied to Prof. Bauer’s hypothetical? Presumably, the Board would find the dominant reason for the threatened persecution to be the Nazi authorities’ desire to bring a criminal to justice. The targeting of the suspect’s coreligionists as a means to achieve that primary objective would, under the Board’s test, become “subordinate” to that goal, and would thus render the murdering of the town’s Jews “irrelevant.” Applying the Board’s “logic,” religion would not be one central reason for the murders.

As the above example demonstrates, the Board’s test will lead to truly absurd results. It is therefore not surprising that the Board’s standard is at odds with the approach of most circuits.

  1. The reinstituted dominance test conflicts with most circuit case law

Tip: Argue the inapplicability of M-R-M-S- where it conflicts with prevailing circuit law.

While not exhaustive, the following selection of circuit court case law should provide a basis for arguing that the Board’s standard for determining nexus is inapplicable in many courts located within the jurisdiction of those circuits

Third Circuit

It should certainly be argued in cases arising within the jurisdiction of the Third Circuit that the new decision’s reiteration of the exact legal standard that was rejected in Ndayshimiye (as discussed above) means that M-R-M-S- cannot be followed. The BIA actually recognized the conflict in footnote 6 of its decision, stating:

Although the United States Court of Appeals for the Third Circuit generally agrees with the Board’s interpretation of the “one central reason” standard, it has rejected the requirement that a protected ground not be subordinate to another reason for harm. See Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 130–31 (3d Cir. 2009).

The Board thus seemed to acknowledge by way of this footnote the inapplicability of its decision in the Third Circuit.

Fourth Circuit

The BIA in M-R-M-S- does not contest that its requirement for nexus is at odds with the long-established “but for” standard employed by the U.S. Court of Appeals for the Fourth Circuit.

In Hernandez-Avalos v. Lynch,10 the Fourth Circuit explained that even though a gang threatened the petitioner for the purpose of recruiting her son, the applicant was nevertheless targeted “on account of” her family ties because her “relationship to her son is why she, and not another person, was threatened….”  The court has repeated the “why she, and not another person” test in other decisions.11

The Fourth Circuit has more recently pointed to an oft-repeated error of the Board in “incorrectly focusing on why the gang targeted Petitioner’s family, rather than on why they targeted Petitioner herself.”12  In another published decision, the Fourth Circuit stated that “‘once the right question is asked’ — that is, why was Petitioner being targeted — the conclusion is quite clear: ‘whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.’”13

The fact that the Board in M-R-M-S- states that it prefers the approach of the Tenth Circuit, which “does not agree with the Fourth Circuit’s approach,”14 does not change the fact that the standard enunciated in the above-captioned Fourth Circuit decisions remains the standard for nexus applicable in Immigration Courts and Asylum Offices located within that circuit’s jurisdiction.

Cases being heard remotely by an IJ located within the Fourth Circuit

A decision of the Fourth Circuit issued last year provides a strong argument for applying that court’s nexus standard in lieu of the M-R-M-S- approach in cases geographically outside of the circuit’s jurisdiction which are heard remotely by Immigration Judges sitting in Virginia, Maryland, or North Carolina.

In Herrera-Alcala v. Garland 15, the Fourth Circuit held that under a plain reading of the statute, jurisdiction is determined by the geographic location of the immigration judge at the time the judge completed the proceedings.

The BIA subsequently issued a conflicting precedential opinion, Matter of Garcia.16 But as the Fourth Circuit’s ruling in Herrera-Alcala was based on its clear reading of the statutory language, the lack of a finding of statutory ambiguity would preclude deference to the Board’s view under either Chevron or Brand X.

In cases in which the Immigration Judge is sitting within the Fourth Circuit while the respondent is appearing in an immigration court elsewhere, the argument should be made that Fourth Circuit case law should apply. Claims constructed using Fourth Circuit precedent should be presented below, as in case the claim is denied by the agency, the applicant will ultimately be able to seek review before the Fourth Circuit.

Cases arising under the jurisdiction of other circuits

Fifth Circuit

Outside of the obvious examples of the Third and Fourth Circuits, be highly aware of the case law of the prevailing circuit regarding nexus. Most circuits have rejected the Board’s approach to some degree. Furthermore, the BIA misrepresented the holdings in some of the circuit decisions it cited in M-R-M-S-, a point that should be brought to the attention of judges or asylum officers.

The Fifth Circuit provides us with an example. In M-R-M-S-, the BIA cited the Fifth Circuit’s decision in Guevara-Fabian v. Garland17 as an example of a court employing an analysis of nexus consistent with its own approach.18 However, the court in Guevara-Fabian simply found that there was substantial evidence that the petitioner was targeted “because she owned a profitable business,” and not due to her family membership. This is quite different from the Board’s holding that being targeted due to one’s family membership is insufficient to establish a nexus where such family-based targeting is used as a means to achieving another non-protected goal.

Furthermore, four days after the issuance of M-R-M-S-, the Fifth Circuit published its decision in Argueta-Hernandez v. Garland.19 The facts in that case did not involve a family-based particular social group, but in addressing the subject of nexus, the court’s opinion rejected the agency’s general approach of rejecting all but the dominant reason for persecution.

Specifically, the Fifth Circuit found that in concluding threats by MS-13 were motivated “by criminal intent, personal vendettas, or monetary gain, which do not establish the required nexus,” the BIA disregarded that the petitioner “needed only to present ‘some particularized connection between the feared persecution’ and the protected ground in which his application for relief relies.” The court then referenced an earlier decision in which it had rejected the Board’s employment of an “either-or” approach to nexus in a mixed motive case, and said that the Board had acted similarly here by suggesting that Argueta was targeted for economic reasons “instead” of for a protected ground.20

So in cases arising in the Fifth Circuit, it should be argued that Guevara-Fabian did not support the Board’s approach in M-R-M-S-, as it was distinguishable on its facts, and that the court’s subsequent rejection in Argueta-Hernandez of the type of dominance approach and “either-or” test employed in M-R-M-S- puts the Board’s view of nexus in conflict with circuit law.

Sixth Circuit

On December 8 (i.e. 7 days after the publication of M-R-M-S-), the U.S. Court of Appeals for the Sixth Circuit issued its decision in Sebastian-Sebastian v. Garland 21. In that case, the petitioner, who suffered domestic violence at the hands of her husband, and, following his death, at the hands of his mother, claimed persecution on account of particular social groups which included  “Guatemalan Chuj [w]omen in domestic relationships who are unable to leave,” and “Guatemalan Chuj [w]omen who are viewed as property by virtue of their positions within a domestic relationship.” But the IJ found, and the Board affirmed, that the abuser acted based on a personal vendetta, and therefore found no nexus to a particular social group.

As the record contained ample evidence that “cultural expectations dictated that a Guatemalan Chuj woman in her position—both viewed as property and unable to leave by virtue of her domestic relationship—must stay with her in-laws and have nowhere else to go,” the Sixth Circuit determined there was “sufficient evidence for the BIA to conclude that Sebastian-Sebastian’s membership in these groups ‘underlay[s] all of [her persecutors’] actions.’”22 The court thus concluded that the Board’s failure to consider whether, in light of the above, the personal motives and particular social group membership were “inextricably intertwined” constituted reversible error.

The Sixth Circuit thus held (post-M-R-M-S-) that even where the primary reason for the persecution is a non-protected one (in this case, personal animosity), the fact that membership in a particular social group put and kept the asylum applicant in harm’s way is sufficient to render it sufficiently intertwined to satisfy the “one central reason” test. I believe a strong argument can be made that applying this approach to a family-based PSG would require a finding that even if the ultimate motive is extortion, if family membership is what put and kept the asylum applicant in harm’s way, there is sufficient nexus.

Seventh Circuit

In Gonzalez Ruano v. Barr,23  the Seventh Circuit explicitly rejected an approach essentially the same to that underlying the Board’s decision in M-R-M-S-. The petitioner suffered persecution by a criminal cartel whose leader viewed the petitioner’s wife as “property” that he sought to “possess.” The petitioner thus argued that his familial relationship to his wife was at least one central reason for his persecution.

On review, the Seventh Circuit specifically rejected the government’s argument that the persecution of the petitioner “was simply a ‘means to an end,’ making [the petitioner]’s relationship to his wife incidental.”24 The court found support in the Fourth Circuit’s decision in Hernandez-Avalos v. Lynch, adopting the Fourth Circuit’s test under which a nexus exists because the petitioner’s “relationship to his wife was the reason he, and not someone else, was targeted.”25

As the Seventh Circuit is in accord with the Fourth Circuit’s test that specifically rejects the Board’s approach to nexus (a conflict readily admitted by the Board in M-R-M-S-), the Board’s nexus standard is necessarily inapplicable in cases in which Seventh Circuit case law applies. It should be emphasized that the Fourth Circuit’s decision in Hernandez-Avalos which the Seventh Circuit positively cites is the specific decision mentioned by the Board in M-R-M-S- as an example of how the Fourth Circuit’s approach differs from its own.26

Eleventh Circuit

The Eleventh Circuit in Perez-Sanchez v. U.S. Att’y Gen.27 also applied a “but for” approach to nexus in a case involving family, determining that the persecutor’s monetary motivation did not render the petitioner’s family membership merely incidental where a criminal cartel targeted the petitioner because his father-in-law owed the cartel money. This is the exact scenario the Board rejected in M-R-M-S-, in which a family member is targeted as a means to a monetary end.

However, exactly as the Fourth Circuit had done in Hernandez-Avalos, the Eleventh Circuit stated that “In Mr. Perez-Sanchez’s case, it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin.” The court  concluded that “the family relationship was one central reason, if not the central reason, for the harm.”28

Thus, the M-R-M-S- standard is at odds with Eleventh Circuit case law as well.

Ninth and Second Circuits

The approach of these two circuits relates to the “but-for” standard. The Ninth Circuit applies a “but-for cause” test in determining nexus. As that court recently noted, to satisfy that standard, an asylum applicant “must first show that ‘the persecutor would not have harmed [her] if such motive did not exist,’… that is, but-for cause, see But-for Cause, Black’s Law Dictionary (11th ed. 2019) (“The cause without which the event could not have occurred.”).29

Interestingly, in M-R-M-S-, the BIA quoted this but-for cause language from Parussimova without mentioning that the standard was in conflict with its own.30

It should therefore be argued in cases arising in the Ninth Circuit that applying that court’s “but-for cause” test would lead to a quite different result than the standard enunciated in M-R-M-S-.

The Second Circuit’s standard is less clear, but the court seems to view the “one central reason” requirement an even lower bar for establishing nexus than a but-for cause test. In Quituizaca v. Garland,31 the court noted the need to predict future persecution in withholding of removal claims, as opposed to other areas of law that employ a but-for causation test to past actions only. The court noted that where an adverse action has already occurred, there is an implication that “whatever evidence to establish but-for causation or refute it exists too.”

By contrast, the court noted that because of the predictive nature of future persecution in withholding claims, “[a] but-for standard in this context would seemingly require the applicant have insight into the motivations of the hypothetical future persecutor that sufficiently removes any doubt that the persecutor would be motivated by anything else,” adding that “[a]t a minimum, the proof that can be marshalled to rectify past conduct appears to us distinct from that which would be needed to establish a persecutor’s potential future conduct.”

While the Quituizaca decision is not even mentioned in M-R-M-S-, the Board does reference another Second Circuit case, Garcia-Aranda v. Garland,32 but essentially misrepresents that decision’s holding. In Garcia-Aranda, the facts established that although family members had also been harmed, the petitioners were targeted for persecution because of their own perceived wealth. Whether or not they were related to others who suffered harm would not change the outcome. Thus, in Garcia-Aranda, the court did not address, much less reject, the proposition that no nexus is established under a Hernandez-Avalos type of fact pattern.

A quick note regarding the Tenth Circuit

M-R-M-S- arose within the jurisdiction of the Tenth Circuit, and the Board lauded that court’s decision in Orellana-Recinos v. Garland33 as setting forth its preferred standard for nexus.34

It is worth noting that in Orellana-Recinos, “Petitioners did not challenge, or even cite, Matter of L-E-A- in their brief to this court. And at oral argument they cited it as authority. As previously noted, they dispute only the BIA’s factual findings in their case, not the legal framework it applied.”35

  1. What about the standard applied in discrimination cases?

The Supreme Court recently addressed the question of nexus outside of the asylum context in Bostock v. Clayton County,36  a case involving employment discrimination under Title VII of the 1964 Civil Rights Act.  The Court explained in Bostock that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” (i.e. the standard used in asylum cases).

The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test.  As the Court explained, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”37

The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”  The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”38

This leads to the following question: if “on account of” is not a term specific to asylum, and if the Supreme Court has told us that there is a simple and traditional test for “on account of” that is none other than the “but-for” test being applied by several circuits as described above, can the BIA simply ignore this in creating its own definition for the term “on account of” applicable to asylum claims? M-R-M-S- makes no mention of Bostock. If the Board doesn’t believe that case to be applicable, why not explain its reasoning for reaching that conclusion?

Tip: There is thus an argument to be made in all jurisdictions that the Supreme Court’s standard in Bostock should be the prevailing one.

I have discussed Bostock and offered my views on its applicability to asylum in more detail here.

  1. Emphasize other BIA precedents

Even in the absence of conflicting circuit or Supreme Court case law, an Immigration Judge or asylum officer is left to sort through the several BIA precedents mentioned above. Matter of S-P- (which has not been overruled) did not conclude that because an asylum applicant faced criminal prosecution, there was nothing further to consider. Instead, the Board in that case set forth a test requiring adjudicators to continue their inquiry,  taking into account circumstantial evidence and applying common sense to see if another motive for the persecution might be inferred from the facts of record.

As noted above, Matter of N-M- set out a “but-for” standard that seems identical to the one employed by the Fourth Circuit. And even Matter of L-E-A- dropped the word “subordinate,” and thus the application of the dominance test, from its stated legal standard.

Tip: Note that these other BIA precedents remain binding as precedent.

These other cases should therefore be cited and explained, and the degree to which they conflict with M-R-M-S- should be emphasized. It can be argued that M-R-M-S-’s applicability should be limited to cases in which family members are merely mentioned in passing, without further elucidation from the record as to why family membership might have served as a reason for past or future persecution.

Conclusion

As the above hopefully demonstrates, there are plenty of bases to challenge the Board’s recent decision. In M-R-M-S-, the Board presented an approach to nexus that is at odds with the case law of the majority of circuits. The Board mischaracterized the holdings in a number of circuit court decisions, championed a decision of the Tenth Circuit in which the Board’s standard was conceded and thus not in dispute before that court, and completely ignored the Supreme Court’s analysis of the “on account of” standard without explaining why what the Court termed the traditional standard for nexus was distinguishable in the asylum context.

To reiterate, the proper thing for the Attorney General to do at this point is to certify the decision to himself, and vacate it pending anticipated rulemaking. In the meantime, it is hoped that some of the above points will receive serious consideration from asylum officers, Immigration Judges, ICE attorneys, and federal appellate courts.

Copyright Jeffrey S. Chase 2023. All rights reserved.

Notes:

  1. 27 I&N Dec. 40 (BIA 2017).
  2. 28 I&N Dec. 757 (BIA 2023).
  3. 21 I&N Dec. 486 (BIA 1996).
  4. 25 I&N Dec. 208 (BIA 2007).
  5. 557 F.3d 124, 129-30 (3rd Cir., 2009).
  6. 25 I&N Dec. 526 (BIA 2011).
  7. Id. at 531 (emphasis added).
  8. Matter of L-E-A-, supra at 44.
  9. Matter of M-R-M-S-, supra at 759 (emphasis added).
  10. 784 F.3d 944, 950 (4th Cir. 2015).
  11. See, e.g., Alvarez-Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019); Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017).
  12. Perez Vasquez v. Garland, 4 F.4th 213 , 222 (4th Cir. 2021).
  13. Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020) (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018)).
  14. M-R-M-S-, supra at 761.
  15. 39 F.4th 233 (4th Cir. 2022).
  16. 28 I&N Dec. 693 (BIA 2023).
  17. 51 F.4th 647, 648 (5th Cir. 2022) (per curiam).
  18. M-R-M-S-, supra at 760.
  19. No. 22-60307 (5th Cir. Dec. 5, 2023).
  20. Id., slip op. at 16-17 (citing Rivas-Martinez v. I.N.S., 997 F.2d 1143, 1145, 1147-48  (5th Cir. 1993) (remanding to BIA for consideration of mixed motives).
  21. No. 23-3059 (6th Cir. Dec. 8, 2023).
  22. Id., slip op. at 22 (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 998 (6th Cir. 2009).
  23. 922 F.3d 346 (7th Cir. 2019).
  24. Id. at 355-56.
  25. Id. at 356.
  26. See M-R-M-S-, supra at 761 (stating that the Tenth Circuit does not agree with the Fourth Circuit’s approach in Hernandez-Avalos, and adding its opinion that the Tenth Circuit’s is the proper approach).
  27. 935 F.3d 1148 (11th Cir. 2019).
  28. Id. at 1158-59.
  29. Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021) (quoting Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
  30. See M-R-M-S-, supra at 762.
  31. 52 F.4th 103, 112-13 (2d Cir. 2022).
  32. 53 F.4th 752, 758 (2d Cir. 2022).
  33. 993 F.3d 851 (10th Cir. 2021).
  34. M-R-M-S-, supra at 761 (stating “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm.
  35. Id. at 857.
  36. 140 S. Ct. 1731 (2020).
  37. Id. at 1739.
  38. Id.

DECEMBER 24, 2023

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

Reprinted by permission.

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It’s very satisfying to see Jeffrey’s positive use of Matter of S-P-, a “Schmidt era” precedent in which I joined and which remains good law despite the current BIA’s often ignoring or misapplying it. It’s also a great example of the useful guidance flowing from “positive precedents” — those illustrating and promoting proper asylum grants — as opposed to the overwhelmingly negative tenor of today’s unduly restrictive BIA asylum precedents. 

As many of us often say, justice for asylum seekers and other migrants shouldn’t be this difficult in Garland’s courts. See also https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

Even while the BIA tortures asylum law to make it more difficult to qualify, authorities in other “UN Convention nations” are moving in the opposite direction. For example, Switzerland recently joined Finland, Sweden, and Denmark in automatically granting asylum to Afghan women.  See, e.g., https://www.tortoisemedia.com/2023/12/19/switzerland-becomes-fourth-country-to-automatically-grant-asylum-to-afghan-women/. 

This approach is far more consistent with the Supreme Court’s generous guidance in INS v. Cardoza-Fonseca and the BIA’s own initial implementation of that standard in Matter of Mogharrabi, both of which are routinely ignored at EOIR today. (Indeed, if someone with the exact same facts as Mogharrabi applied today, it’s highly likely that the BIA would invent a host of bogus reasons to send him packing!)  It’s also a much more practical approach that can actually “streamline” the granting of more “first instance” cases by the Asylum Office, greater consistency, and lessening the need for petitions for review and “Circuit specific” strategies. 

While there is no “silver bullet” that will eliminate overnight a backlog built over years of neglect, active mismanagement, and poor performance at EOIR and DOJ, a new, functional, well-respected BIA of asylum expert judges unswervingly committed to due process, fundamental fairness, and best practices is an absolutely necessary first step toward regaining control over our asylum system without sacrificing the legal rights of asylum seekers. The system can’t start eliminating backlog until it ceases doing those things that build unnecessary backlog in the first place. 

In the meantime, this example of “law you can use” from “Sir Jeffrey” promises to be the “gift that keeps on giving” during what is sure to be a difficult upcoming year for refugees, asylum seekers, migrants, and their dedicated attorneys and representatives!

🇺🇸 Due Process Forever!

PWS

12-26-23

⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford
Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever.  So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David  L.  Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @  GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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

As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

  1. While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
  2. Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Waiting for Godot
Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
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Waiting for Godot in Doon School.jpg Copy
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December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23