Category: Article I Immigration Court

VICTORY ON THE WESTERN FRONT: “Western Brigade Of The NDPA” (A/K/A Pangea Legal Services) wins Key Bond Battle! — “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice. . . . We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

https://static1.squarespace.com/static/50b1609de4b054abacd5ab6c/t/5aab2aac758d467bf8761e84/1521167020690/Habeas+Order,+Floricel+Liborio+Ramos+v.+Sessions,+2018.03.13.pdf

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On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States.  Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

 

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

 IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility.  Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

 

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Related posts:

  1. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. AMERICA’S “MASS ATROCITY” — Professor Kate Cronin-Furman Says Don’t Kid Yourself About What The Trump Administration Is Doing In Your Name & How “Ordinary Civil Servants” Carry Out The Unthinkable & Unacceptable!
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

BACK ON THE KILLING FLOOR: BATTERED WOMEN STRUGGLED FOR 15 YEARS TO GET LIFE-SAVING LEGAL PROTECTION UNDER ASYLUM LAWS – – Now, Jeff Sessions Appears Poised To Sentence Them To Death Or A Lifetime Of Unremitting Abuse With A Mere Stroke Of His Poison Pen!

FINALLY, AFTER FUTILE REQUESTS TO THE BIA AND THE DOJ, THE PUBLIC HAS BEEN ABLE TO GET A COPY OF THE RECENTLY CERTIFIED MATTER OF A-B-, FROM THE ATTORNEY (WHO WASN’T TOLD OF THE ACTION UNTIL HE RECEIVED A COPY OF THE DECISION  IN THE MAIL ON FRIDAY)

Here it is:

A-B- BIA Decision (12-08-2016) (redacted) (1)

It’s bad news for Due Process, justice in American, and particularly vulnerable asylum seekers who are battered women. Sessions appears to be taking direct aim at the landmark BIA precedent Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) which, following a 15 year legal battle, recognized that battered women could be a “particular social group” and thereby qualify for asylum and withholding of opinion.

Make no mistake, the BIA decision in Matter of A-B- is correct in every respect — a virtual textbook on how U.S. Immigration Judges should be handling and granting these well-documented claims. It’s also a classic example of poor quality work and feeble, biased anti-asylum, anti-female reasoning by an Immigration Judge that plagues too much of our asylum system.

The Immigration Judge’s decision denying asylum which was reversed by the BIA in Matter of A-B- contained numerous egregious errors, including:

  • An incorrect adverse credibility ruling which failed to consider and properly weigh “the totality of the circumstances, and all relevant factors,” as required by the REAL ID Act;
  • Failure to recognize a “particular social group” (“PSG”) substantially similar to that approved by the BIA in Matter of A-R-C-G-;
  • A “clearly erroneous” finding that the abused respondent was free to leave her ex-husband;
  • A “clearly erroneous” finding that the valid PSG was not “at least once central reason” for the persecution;
  • An erroneous finding, bordering on the absurd, that the Government of El Salvador was not “unable or unwilling” to protect the respondent.

Overall, the Immigration Judge’s handling of this case has all the earmarks of a jurist who is biased against asylum applicants and has predetermined to deny most claims giving a litany of specious, basically “pre-judged” reasons.

The Attorney General compounds the problem by apparently questioning the long-established principle that persecution takes place when “non-state actors” are not reasonably controlled by their national government. See, e.g., Matter of O-Z-&I-Z-, 22 I&N Dec. 23, 26 (BIA 1998).

Rather than reinforcing the BIA’s long-overdue “reining in” of a wayward Immigration Judge, the Attorney General appears to be aiming to upend well-settled asylum law and empower those Immigration Judges who already treat asylum applicants unfairly. That’s likely to result in a monumental battle in the Article III Courts — specifically the U.S. Courts of Appeals. Hopefully, those courts eventually will recognize that the U.S. Immigration Courts are being manipulated to reflect the anti-asylum, xenophobic biases and prejudices of Jeff Sessions.

That will require them to stand up to Sessions’s bullying and insist that asylum seekers rights to fair hearings before impartial decision makers and to receive legal  protection under U.S. and international standards be recognized.

Advocates also question the procedures by which this case was handled by the Immigraton Judge following the BIA remand. The BIA order instructed the Judge to schedule the case for a routine update of the fingerprints and background checks and to issue a final order; in my experience, that’s usually a “30 second process” that can be completed on a Master Calendar or by joint written motion “in chambers.”

However, according to sources, this Immigration Judge allegedly “held up” AB’s case for eight months for no particular reason, and then “recertified” it to the BIA raising a facially bogus legal issue concerning a later-issued, unrelated Fourth Circuit case. Mysteriously, the case then was “certified” by Sessions taking it out of the BIA’s jurisdiction.

This scenario raises speculation that this Immigration Judge — perhaps recognizing from the Attorney General’s public statements that Sessions was also biased against asylum seekers — may have manipulated the process to do an “end run” around the BIA to the Attorney General. All pretty unseemly stuff when “lives are on the line.” Yet more “anecdotal evidence” of a system out of control and biased against Due Process and fairness for asylum seekers and other migrants.

Stay tuned. The battle is just “revving up,” and the New Due Process Army is ready to defend our justice system against each and every debilitating attack on the rule of law by our biased and lawless Attorney General.

PWS

03-13-18

Related posts:

  1. MORE ARTICLES FEATURE “GANG OF RETIRED JUDGES’ STATEMENT” RE: SESSIONS’S OUTRAGEOUS ATTACK ON SETTLED PRINCIPLES OF PROTECTION LAW! — Media Exposing Corrupt, Inherently Unfair, Biased “Court” System Where The Prejudiced Prosecutor “Cooks” The Results to His Liking! — Jeff Sessions Degrades The American Legal System & Our National Values Each Day He Remains In Office!
  2. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  3. THE HUMAN AGONY OF ASYLUM: SPEND 4 MIN. WITH MS. A-B- & HUMAN/WOMEN’S RIGHTS EXPERT PROFESSOR KAREN MUSALO — Beaten, Raped, & Threatened With Death By Her Husband, Hounded Throughout Her Country, Abandoned By El Salvadoran Authorities, She Sought Refuge In The U.S., Winning Her Case At The BIA — Then She Was Targeted For A Vicious Unprovoked Attack By Notorious Scofflaw Immigration Judge Stuart Couch & White Nationalist Xenophobe Jeff Sessions — She’s Still Fighting For Her Life!
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

HON. JEFFREY CHASE ON MATTER OF E-F-H-L- — SESSIONS’S OUTRAGEOUS ATTTACK ON DUE PROCESS AND RIGHTS OF VULNERABLE ASYLUM SEEKERS SHOWS WHY COURT SYSTEM CONTROLLED BY BIASED A.G. IS A FARCE!

https://www.jeffreyschase.com/blog/2018/3/10/the-ags-strange-decision-in-matter-of-e-f-h-l-

The AG’s Strange Decision in Matter of E-F-H-L-

On Monday, the Attorney General’s strange decision in Matter of E-F-H-L- had many of us talking well into the night.  As background, the BIA published its precedent decision in Matter of E-F-H-L- in 2014.  The case involved an immigration judge’s decision that an asylum applicant’s claim was not deserving of a merits hearing.  Instead of a hearing at which he would have had the opportunity to testify, present witnesses, file documentary evidence, and present legal arguments, the immigration judge simply denied the case on the written application alone.  On appeal, the BIA reached the obvious conclusion that all asylum applicants merit the right to a hearing, and remanded the record back to the immigration judge for that purpose.

Four years later (i.e. this past Monday), Attorney General Jeff Sessions unexpectedly inserted himself into the matter.  It seems that by the time the record arrived back in immigration court, the respondent was now eligible to obtain lawful permanent residence based on a relative petition.  As such petition is a far more certain and direct route to legal status, and carries greater benefits, the respondent followed the common practice of withdrawing his application for asylum in order to proceed on the visa petition alone.  Furthermore, because USCIS (and not the immigration judge) has the authority to decide the visa petition, both the respondent and DHS agreed to administratively close proceedings in order to allow USCIS to adjudicate the petition (which often takes some time) without either having such effort delayed by removal proceedings, or wasting the court’s valuable time by holding unnecessary status-check hearings.  Ordinarily, once the visa petition is decided one way or the other, the parties will move the immigration judge to recalendar the case.

However, such cooperation, efficiency, and consideration is apparently not to the AG’s liking.  On Monday, he determined that because the matter was remanded for an asylum hearing, but the asylum application was subsequently withdrawn, the Board’s precedent guaranteeing asylum applicants the right to a hearing should for some reason be vacated.  He further ordered an end to administrative closure, and that the case be placed back on the IJ’s active hearing calendar, where time and taxpayer money can be wasted on unnecessary hearings, which could possibly delay USCIS in adjudicating the visa petition.

So what does all of this mean?  First, Sessions has now done away with a Board precedent decision entitling all asylum applicants to a full hearing.  The Board’s original decision in E-F-H-L- cited regulations, statute, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, case law, and common sense in reaching such conclusion.  The fact that years later, the respondent became eligible for another form of relief in no way negates the Board’s reasoned conclusion.

Additionally, the AG’s action might have a chilling effect on immigration judges.  In the past, Attorneys General have certified cases to themselves where they disagreed with a decision reached by the Board.  However, I don’t believe an AG has ever before followed a case years later all the way down to the immigration court level and chosen to certify a case because of an action taken by the immigration judge in the normal course of proceedings.  Administratively closing a proceeding to allow USCIS to adjudicate a visa petition is standard procedure – DHS agreed to such action. Yet now, immigration judges have to worry that the AG is watching. How quickly will judges administratively close under the same circumstances, even if everyone agrees it is the correct thing to do?

Furthermore, as it is extremely unlikely that Sessions is  reviewing every decision every immigration judge is making, someone – in DHS? In EOIR? – is signalling the AG’s office of cases such as this one.  Although the immigration courts and BIA are supposed to be neutral, the playing field is not level when the respondent must appeal an unfavorable to the federal circuit courts, whereas DHS can simply ask the Attorney General to reverse a decision of which it disapproves.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

REPRINTED BY PERMISSION.

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How many innocent, vulnerable individuals will die or have their lives ruined  by the travesty of justice unfolding under Jeff Sessions before Congress takes the necessary action to free the U.S. Immigration Courts from blatant and unwarranted political interference in decision-making?

We need an independent Article I U.S. Immigration Court now!

PWS

03-12-18

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  3. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  4. GONZO’S WORLD: THIS IS WHY HE STAYS: UNDERNEATH ALL THE “TRUMP NOISE” SESSIONS IS METHODICALLY ERADICATING DUE PROCESS, PERVERTING THE LAW, & TURNING ONE OF THE LARGEST FEDERAL COURT SYSTEMS INTO A “KILLING FLOOR” TARGETING OUR MOST VULNERABLE & DESERVING REFUGEES! — “[Sessions] is dumbing down the judges and treating them like assembly-line workers whose only job is to stamp out final orders of removal.”

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said  Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  4. TRUMP TREATS KIDS AS HUMAN PAWNS IN UGLY POLITICAL CHESS GAME – Administration’s Continued Spreading Of False Narrative On Migration Makes Continuing Migration Outside of Legal System Inevitable!

SESSIONS APPEARS TO BE MOUNTING ALL-OUT ATTACK ON DUE PROCESS AND THE RIGHTS OF VULNERABLE ASYLUM SEEKERS IN “CAPTIVE” U.S. IMMIGRATION COURTS — “Out Of The Blue” Certification Of Matter Of A-B- Could Turn Deadly For Those At Risk!

3918

Cite as 27 I&N Dec. 227 (A.G. 2018) Interim Decision #3918

Matter of A-B-, Respondent

Decided by Attorney General March 7, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 6, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 13, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before April 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

227

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Something pretty strange is going on here! The BIA has never, to my knowledge, held that “being a victim of private criminal activity constitutes a cognizable ‘particular social group.'” Quite to the contrary, the BIA has always found that “victims of crime” are not a PSG.

Moreover, “Matter of A-B-” is not a BIA precedent. In fact, it’s impossible to tell from the cryptic certification what facts or context the amici should address.

Stay tuned. But, given Sessions’s record of hostility and outright misrepresentations concerning asylum seekers, we could be heading for a monumental, years long battle in the Article III Federal Courts as to whether the U.S. will continue to honor our Constitutional, statutory, and international obligations to protect “refugees” applying for asylum.

PWS

03-07-18

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”

HON. LORY DIANA ROSENBERG COMMENTS ON AG’S DECISION IN MATTER OF E-F-H-L-!

 
Paul (and all) – Here is my preliminary response to your Courtside post, which you may publish:

The AG may be motivated by any number of explanations, as Immigration Courtside thoughtfully suggests. Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.


First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee iof a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.”  Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018).  To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.


Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General,  he is expected to have read the Board’s reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee “​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​.  In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.


Second, the Board’s decision in E-F-H-L- also cited to governing ​”​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,

​

  • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).

  • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​

  • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii)  . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3).  In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L- ultra vires.


Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., ​Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012);

Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998).  No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.


What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003).  See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications).  Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X  authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts.


Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application.  By the AG’s own admission in the case vacated, upon remand, the respondent had withdrawn his asylum application with prejudice in favor of administrative closure to permit an I-130 petition to be adjudicated.  Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.


In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case,  the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.


Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.


Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear  just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.


IDEAS CONSULTATION and COACHING
Immigration Defense & Expert Advocacy Solutions

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

I agree with Lory’s analysis.
Sessions doesn’t do anything without a reason.
We know that:
1) He falsely claims that asylum fraud is a primary contributing factor to the presence of 11 million undocumented individuals. (It isn’t! The vast bulk of the “11 million” were never in the asylum system. I didn’t do the math, but I doubt that there have been anything approaching 11 million asylum applications since the enactment of the “Refuge Act of 1980. While there no doubt have been documented instances of asylum fraud, they would account for only an infinitesimally small portion of the 11 million — mostly law-abiding and productive — undocumented residents trashed by Sessions. Moreover, those engaged in asylum fraud often are eventually exposed and removed and/or jailed).
2) He appears to want to eliminate or severely limit administrative closing which has helped control and rationalize Immigration Court dockets.
3) He wants to dishonestly shift the blame for the backlog from the DOJ which is responsible for “Aimless Docket Reshuffling” over several Administrations to the private bar.
4) He is opposed to prosecutorial discretion and prioritization which are the foundation of all other functioning parts of the U.S. justice system.
5) He has no respect for immigrants (legal or undocumented), our Constitution, the law, or any judge who disagrees with his extreme right-wing xenophobic views.
All of this spells big trouble for the already failing U.S. Immigration Court System and lots of wasteful, additional litigation to vindicate migrants’ statutory and Constitutional rights.
Go New Due Process Army!
PWS
03-07-17

Related posts:

  1. THE HILL: NOLAN SAYS THERE IS A BETTER WAY TO ADDRESS PROBLEMS AT ICE
  2. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

 

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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

I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

A BIA WIN FOR THE GOOD GUYS! – MICHELLE MENDEZ & HER CLINIC TEAM GET REOPENING FOR ASYLUM APPLICANTS IN ATLANTA! (Submitted By Dan Kowalski at LexisNexis)!

From: Michelle Mendez [mailto:mmendez@cliniclegal.org]
Sent: Monday, February 19, 2018 10:00 AM
To: Artesia OTG <artesiaotg@lists.aila.org>
Subject: [artesiaotg] Good news — the BIA has issued a great unpublished decision on late-filed appeals! (Attached.)

 

Greetings,

The ASAP team of Swapna Reddy, Dorothy Tegeler, and  Liz Willis has done it again. With just a few days before her check-in with Atlanta ICE ERO, a mother reached out to us via our Facebook group. Taylor, Lee & Associates had represented her and accepted an order of removal without fighting her case. Many of us are familiar with this law firm having heard about or helped the families targeted in January 2016 by the Obama Administration who were also represented by this firm in the same manner. By “representation” I mean that the law firm did not defend her against removal before the IJ instead accepting an order of removal in exchange for seeking a stay of removal and promising an EAD.

When we learned her case involved the same “salvo conducto” practice by this law firm and that the mother had not actually consent to this practice, we knew we had to help this mother. But time was not on our side as her imminent check-in with Atlanta ICE EOR was supposed to be her last. After strategically considering our options, we rushed to prepare an untimely BIA appeal….a two-year untimely appeal. We prepared a stay of removal application and recruited a local advocate, Keith Farmer, to attend the Atlanta ICE ERO check-in with her and submit the stay. Keith handled the situation like a professional, and the mother was ultimately never detained at her subsequent check-ins at which Shana Tabak artfully accompanied her.

The BIA accepted the Notice to Appeal and issued a briefing schedule. We followed this with an emergency motion for a stay of removal with the BIA. While the Notice to Appeal was pending and we awaited the briefing schedule, we complied with the Lozada procedures and obtained a psych evaluation of the client thanks to Craig Katz, Elizabeth Singer, and Varsha Subramaniam. We reached out to Trina Realmuto and Kristin Macleod-Ball, who provided strategic advice and an amicus brief in support of our untimely appeal. Katie Shephard provided an invaluable declaration given her work on the cases of the families represented by this law firm and targeted in January 2016 by the Obama Administration who were taken to Dilley. Laura Lichter also pitched in with strategic feedback and sample filings given her tireless work on the January 2016 cases, and her input was essential. And, last but not least, we reached out to Bradley Jenkins andLory Rosenberg for their wisdom, who helped us to frame arguments in the most compelling way.

The BIA dismissed the appeal as untimely instructing us to file a Motion to Reconsider and Remand on the question of timeliness. As was done in five nearly identical cases involving this law firm, we asked the BIA to accept this late-filed appeal on certification, or in the alternative, equitably toll the notice of appeal deadline and remand the case for further proceedings before the Immigration Judge. The BIA decision is attached. Huge thanks to ASAP volunteer law student Mayu Arimoto for her assistance with this briefing. Of course, and as always, thanks to Ben Winograd for his filing assistance with the BIA.

The moral of this story is that defending the rights of immigrants is tough work. We battle inhumane policies, cowardly or openly authoritarian leaders, greedy representatives who fill their coffers with private prison money, negative public opinion, intentional and unintentional media misinformation, notarios/unauthorized practitioners of law, and even other attorneys who abandon their duty to zealously represent their vulnerable clients. But when competent and caring advocates join forces, we can do anything.

Michelle N. Mendez

Training and Legal Support Senior Attorney

Defending Vulnerable Populations Project Manager

Catholic Legal Immigration Network, Inc. (CLINIC)

Mailing Address: 8757 Georgia Avenue, Suite 850, Silver Spring, MD 20910

Physical Address: OPD, 217 E. Redwood Street, Suite 1020, Baltimore, MD 21202

Cellular Phone: 540.907.1761

Fax Number: 301.565.4824

Email: mmendez@cliniclegal.org

Website: www.cliniclegal.org

 

Save the date for CLINIC’s 20th annual Convening!

Defending hope and the American Dream

May 30 – June 1, 2018 | Tucson, AZ

cliniclegal.org/convening

 

Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.

 

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HERE’S A COPY OF THE (UNFORTUNATELY UNPUBLISHED) BIA DECISION BY APPELLATE IMMIGRATION JUDGE MOLLY KENDALL CLARK:

Redacted S-H-O BIA Remand

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

Congrats to Michelle and her CLINIC team for winning a great victory for fairness, Due Process, and the New Due Process Army!

This also reminds us that notwithstanding the pressure from the Sessions DOJ to turn the Immigration Courts and the BIA into an “assembly line” churning out more removal orders, every day talented, conscientious, hard-working jurists like Judge Kendall Clark and others like her in the Immigration Court System remain firmly committed to the original “Due Process Mission” and independent decision-making that were supposed to be the sole focus of EOIR (before the “politicos” intervened with their attempts to “game” the system against migrants to achieve DHS enforcement goals).

We need an independent Article I U.S. Immigration Court (including an Appellate Division) so that judges can do their jobs of unbiased, scholarly, independent, Due Process focused decision making without “quotas,” “performance evaluations,” directives from administrators not actively involved in judging, and other improper political interference!

 

PWS

02-19-18

 

 

Related posts:

  1. TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!
  2. MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

MEET THE GOOD GUYS: NOVA SUPERSTAR IMMIGRATION ATTORNEY AVA BENACH HELPS “DREAMER TYPES” & THEY HELP AMERICA – THIS IS THE WAY THE SYSTEM CAN WORK WHEN YOU GET BEYOND THE WHITE NATIONALIST XENOPHOBIA OF TRUMP, SESSIONS, & MILLER & WHEN GREAT LAWYERS GET INVOLVED!

https://www.washingtonpost.com/local/she-was-almost-deported-as-a-teen-now-she-helps-frightened-versions-of-herself/2018/02/15/b39969a8-1245-11e8-9065-e55346f6de81_story.html

Petula Dvorak writes in the Washington Post:

“She was almost deported as a teen. Now she helps frightened versions of herself.


Liana Montecinos is a senior paralegal at Benach Collopy in Washington. She was 17 and about to be deported when lawyer Ava Benach helped her win asylum. (Jahi Chikwendiu/The Washington Post)

By Petula Dvorak Columnist February 15 at 3:39 PM

On many days in the shiny, sleek law office — in her sharp suit and sweeping view of Washington — she revisits all the horrors most people would want to forget:

The drunk men bursting into her tiny, adobe home at night, terrorizing the 15 children who lived there.

The walk across three countries, fearing for her life the entire way.

The months of eating nothing but beans and rice.

These are the same stories Liana Montecinos hears just about every time the 29-year-old paralegal sits down with a client.

Ava Benach, from left, Satsita Muradova and Liana Montecinos chat at their law office. (Jahi Chikwendiu/The Washington Post)

She doesn’t have to go there. She’s an American citizen and a third-year law student with a great future in front of her. But instead of going into something lucrative — corporate law, for example — she’s sticking with the law firm that helped her get political asylum.

“Being an immigrant and serving immigrants, it’s a very special connection,” Montecinos said.

And by doing that, she spends her days with frightened versions of herself.

I wanted to tell Montecinos’s story as Congress grapples with the fate of 1.8 million “dreamers,” the undocumented immigrants who were brought to this country as children. They face deportation under President Trump unless Congress can find a way to reinstate the protection they were given by President Barack Obama.

Montecinos was brought across the border by a relative in 1999, when she was 11 years old, after walking — yes, actually walking — from Honduras, across Guatemala, then across Mexico, crossing the Rio Grande into the United States.

She joined her mother in Northern Virginia — they had been separated since she was an infant and she had been raised by her grandmother — and her life was transformed.

She played volleyball and basketball in her Falls Church high school. She was a cheerleader and soccer player. She took Advanced Placement classes.

But no matter how well she was doing in school and no matter how faint her accent became, she knew it could all fall apart any second.

[She can’t bear to leave her kids. But she doesn’t want to be a criminal.]

And it nearly did when she was 17 and applied for legal status. Instead, the government began removal proceedings. She was going to be deported.

But it didn’t stop her from graduating from high school and enrolling at George Mason University, where she received a scholarship to cover the triple-tuition she had to pay as an undocumented student.

The scholarship’s donor — Helen Ackerman — introduced Montecinos to D.C. immigration attorney Ava Benach, who took on her complex case. What followed was a 10-year struggle.

“I met Liana when she was 17 years old,” Benach said. “And I knew she was special. She was out there, trying to figure out her own immigration status. I felt a very parental desire to help her.”

So they took on the case together, with Montecinos never giving up.

“I’d be doing an all-nighter, knowing I had a hearing the next day and the judge could send me away and it would all be for nothing,” she said.

But she kept studying, striving and working. You know how folks are always saying “Why don’t they just get legal?” It’s not that easy.

[My parents were welcomed as refugees. That was the America of 1968, not today.]

It took 10 years of hearings and arguments to convince a judge that she faced threats and violence in Honduras, in that tiny, adobe house, and that her hard work in school, model citizenship and potential were enough to grant her a place in American society.

Asylum is granted only to someone who faces persecution in their home country. And that persecution has to be for one of five reasons: your race, religion, nationality, membership in a particular social group, or your political opinion.

“It has to fit in one of five boxes,” Benach said. And her life’s work is helping her frightened clients qualify.

Montecinos was granted asylum and citizenship on June 29, 2016.

“For many, becoming a U.S. citizen is the last part of the process,” Montecinos wrote on her Facebook page that day. “For others, like myself, it is the beginning to end 16 plus years of uncertainty and of fear of a forceful return to imminent harm.”

She called herself “extremely blessed and thankful for such a privilege, which is denied to many,” she said. “This path, however, was not easy. It was not short. It was not cheap.”

She is in her third year of law school at the University of the District of Columbia, where she received a Student Humanitarian and Civic Engagement award on Thursday.

In her spare time, you see, she runs a nonprofit group she founded, United for Social Justice, which helps low-income, first-generation Americans get access to higher education. Oh, and she coaches and plays on a bunch of soccer teams.

When she meets with the undocumented children who are like her, the ones she is fighting for, it reminds her of her struggle.

Though her own story is horrible — think of being 11 and scared, hiding your face with blankets as you cross strange villages where people are yelling “pollos mojados” (wet chickens) at you, not knowing where you’re going — her clients recount even more heart-stopping stories.

She hears from children who were kidnapped, who rode for days on top of speeding trains, afraid to fall asleep because they’d fall off, from a little girl who was gang-raped in front of her father.”

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

Ava has a “Major League” legal mind to go with a “heart of gold!” She and her colleagues from her firm appeared on many occasions before me at the Arlington Immigration Court.

This article aptly illustrates one of the points I often make.  Asylum law has intentionally been “jacked” against Central Americans by a non-independent BIA working under pressure from politicos to limit protections to large groups. Nevertheless, with a good lawyer (e.g., one who isn’t afraid to argue the BIA’s — often otherwise ignored — favorable precedents back to them and to take wrong BIA denials to the Court of Appeals if necessary), resources to build and document a case, and persistence, most of the “Dreamers” probably could win some type of relief in Immigration Court if not at the Asylum Office or elsewhere at USCIS.

But, what rational reason could there be for forcing folks like Liana Montecinos who are already here, part of our society, and just want to become taxpaying citizens and REALLY “Make America Great” (not to be confused with the disingenuous racist slogan of Trump and his White Nationalist “base”) go through such a laborious process? And what possible rationale could there be for wasting the time of an already overburdened Immigration Court system with cases of individuals who clearly should be welcomed and accepted into American society without being placed in “Removal Proceedings?” Also, what would be the rationale for trying to artificially “speed up” complex cases like Liana’s and trying to make life difficult for talented lawyers like Ava?

The answer is clear: there is NO rationale for the “Gonzo” Immigration enforcement and “designed chaos and attack on Due Process in Immigration Court” that Trump, Miller, Sessions, Nielsen, Tom Homan and their ilk are trying to ram down our throats. Sessions is the problem for justice in our Immigration Courts; lawyers like Ava are a key part of the solution! Clearly, the U.S. Immigration Courts are too important to our system of justice to be left in the clutches of a biased, “enforcement only,” White Nationalist, xenophobic opponent of individual due process like Jeff Sessions! American needs an independent Article I U.S. Immigration Court! Harm to the least and most vulnerable among us is harm to all!

The good news is that folks like Ava and her fellow “Generals” of the “New Due Process Army” are out there to fight Trump, Sessions & Company and their White Nationalist, anti-American actions every step of the way and to vindicate the Constitutional and legal rights of great American migrants like Liliana and millions of others similarly situated. They are “American’s future!” Trump, Sessions, Miller, et al., are the ugly past of America that all decent Americans should be committed to “putting in the rear-view mirror” where the “Trumpsters” live and belong! And, it won’t be long before Liliana becomes an attorney and a “full-fledged member” of the “New Due Process Army!”

Go Ava! Go Liliana! Due Process Forever! 

PWS

02-16-18

 

Related posts:

  1. TRUMP TREATS KIDS AS HUMAN PAWNS IN UGLY POLITICAL CHESS GAME – Administration’s Continued Spreading Of False Narrative On Migration Makes Continuing Migration Outside of Legal System Inevitable!
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  4. INCONVENIENT TRUTH: HALEY SWEETLAND EDWARDS @ TIME TELLS WHAT TRUMP, MILLER, COTTON, SESSIONS, & THEIR WHITE NATIONALIST GANG DON’T WANT YOU TO KNOW: Human Migration Is A Powerful Force As Old As Human History; It’s A Plus For Receiving Nations; It Won’t Be Stopped By Walls, Jails, Racist Laws, Or Any Other Restrictionist Nonsense; But, It Can Be Intelligently Controlled, Channeled, Harnessed, & Used For The Benefit Of The U.S. & The Good Of The Migrants! — “But to maximize that future good, governments must act rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.”

AILA URGES CONGRESS TO CREATE INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT TO REPLACE CURRENT DUE PROCESS TRAVESTY! – “In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.”

RESOLUTION ON IMMIGRATION COURT REFORM AILA Board of Governors Winter 2018

PROPONENT: AILA Executive Committee and AILA EOIR Liaison Committee

Introduction:

Our immigration court system does not meet the standards which justice demands. Chronic and systemic problems have resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner. As a component of the Department of Justice (DOJ), EOIR has been particularly vulnerable to political pressure. Immigration judges, who are currently appointed by the Attorney General and are DOJ employees, have struggled to maintain independence in their decision making. In certain jurisdictions, the immigration court practices and adjudications have fallen far below constitutional norms. Years of disproportionately low court funding levels – as compared to other components of the immigration system such as ICE and CBP – have contributed to an ever-growing backlog of cases that is now well over 600,000.

Despite the well-documented history of structural flaws within the current immigration court system, DOJ and EOIR have failed to propose any viable plan to address these concerns. In fact, instead of working to improve the system, DOJ recently announced initiatives that severely jeopardize an immigration judge’s ability to remain independent and impartial. These new policies are designed only to accelerate deportations, further eroding the integrity of the court system.

RESOLUTION: The Board hereby reaffirms and clarifies its position on immigration court reform as follows:

In its current state, the immigration court system requires a complete structural overhaul to address several fundamental problems. AILA recommends that Congress create an independent immigration court system in the form of an Article I court, modeled after the U.S. Bankruptcy Court. Such an entity would protect and advance America’s core values of fairness and equality by safeguarding the independence and impartiality of the immigration court system.

Below is an outline of the basic features that should be included in the Article I court.

Independent System: Congress should establish an immigration court system under Article I of the Constitution, with both trial and appellate divisions, to adjudicate immigration cases.

This structural overhaul advances the immigration court’s status as a neutral arbiter, ensuring the independent functioning of the immigration judiciary.

Appellate Review:

AILA recommends that the new Article I court system provide trial level immigration courts and appellate level review, with further review to the U.S. Circuit Courts of Appeals and the U.S. Supreme Court. To prevent overburdening Article III courts, it is necessary to include an appellate court within the Article I court system.

Judicial Appointment Process:

AILA recommends the appointment of trial-level and appellate-level judges for a fixed term of no less than 10 years, with the possibility of reappointment. These judges would be appointed by the U.S. Court of Appeals for the federal circuit in which the immigration court resides. The traditional Article I judicial appointment process, which relies on Presidential appointment with Senate confirmation, would be unworkable for the immigration court system and could easily create a backlog in judicial vacancies. The U.S. Bankruptcy Court system, which uses a different appointment process than other Article I courts, is a better model for the immigration court system, due to the comparable size and the volume of cases. Like the U.S. Bankruptcy Court System, which has 352 judges, the immigration court currently has over 300 judges. Traditional Article I courts have far fewer judges than that of the U.S. Bankruptcy Court System. Therefore, AILA recommends a judicial appointment system that closely resembles that of the U.S. Bankruptcy Court.

Hiring Criteria for Judges:

Trial and appellate judges that are selected should be highly qualified, and well-trained, and should represent diverse backgrounds. In addition to ensuring racial ethnic, gender, gender identity, sexual orientation, disability, religious, and geographic diversity, AILA advocates for a recruitment and selection process that is designed to ensure that the overall corps of immigration judges is balanced between individuals with a nongovernment, private sector background, and individuals from the public sector. We believe this balance best promotes the development of the law in the nation’s interest.

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

Read the complete report here:

AILA Resolution Passed 2.3.2018

The proposal that U.S. Immigration Judges be appointed by the U.S. Courts of Appeals for renewable 10 year terms is particularly salutary. The current process needs to be professionalized and de-politicized. The U.S. Courts of Appeals are the “primary professional consumers” of the work product of the U.S. Immigration Judges. The U.S. Bankruptcy Court Appointment System recommended by AILA has earned high praise for producing  a fair, impartial, merit-based, apolitical judiciary.

The current ridiculous selection and appointment process within the DOJ has two stunning deficiencies.

First, it has become an “insider-only” judiciary. Over the past three Administrations nearly 90% of the newly appointed U.S. Immigration Judges have been from government backgrounds, primarily DHS/ICE prosecutors. Outside expertise, including that gained from representing individuals in Immigration Court, clinical teaching, and working for NGOs and pro bono groups has been systematically excluded from the Immigration Court judiciary, giving it a built-in “one-sided” appearance.

Remarkably, the situation at the appellate level, the Board of Immigration Appeals (“BIA”) has been even worse! No Appellate Immigration Judge/Board Member has been appointed from “outside Government” since 2000, and both of those have long since been removed or otherwise moved on.

Indeed, even sitting (as opposed to “administrative”) U.S. Immigration Judges are seldom appointed or even interviewed for BIA vacancies. There is only one current Appellate Immigration Judge who was appointed directly from the trial court, and that individual had only a modest (approximately three years) amount of trial experience. Thus, a number of sources of what would logically be the most expert and experienced appellate judicial candidates have been systematically excluded from the appointment process at the DOJ.

Second, while the results produced are highly problematic, the DOJ hiring process for U.S. Immigration Judges has been amazingly glacial! According to the Government Accountability Office (“GAO”) the Immigration Judge appointment process during the last Administration took an average of two years! That’s longer than the Senate confirmation process for Article III Judges!

Much of the delay has reportedly been attributed to the slowness of the “background check process.” Come on man! Background checks are significant, but are essentially ministerial functions that can be speeded up at the will of the Attorney General.

It’s not like Eric Holder, Loretta Lynch, or Jeff Sessions were willing to wait two years for background clearance for their other high-level appointees in the DOJ. No, it’s simply a matter of screwed up priorities and incompetence at the highest levels of the DOJ. And, let’s not forget that most of the appointees are already working for the DHS or the DOJ. So they currently have high-level background clearances that merely have to be “updated.”

It should be “child’s play” — a “no-brainer.” When Anthony C. “Tony” Moscato was the Director and Janet Reno was the Attorney General, background checks often were completed for Immigration Judges and BIA Members in less than 60 days. And, if Tony really needed someone on board immediately, he picked up the phone, called “downtown,” and it happened. Immediately! Competence and priorities!

Our oldest son Wick has been private bar member of the U.S. Magistrate Judge Recommendation Committee for the Eastern District of Wisconsin. Their process was much more open, timely, and merit-focused than the current DOJ hiring process (whatever that might actually be) and fairly considered candidates from both inside and outside government.

Also, the slowness of the background check process unfairly prejudices “outside applicants.” Sure, it’s annoying for a “Government insider” to have to wait for clearance. But, his or her job and paycheck continue without problem during the process.

On the other hand, “outside applicants” have to make “business decisions,” — whether to take on additional employees or accept new clients; whether to commit to another year of teaching; whether to accept promotions, etc — that can be “deal breakers” as the process creeps along without much useful feedback from EOIR.

Attorney General Sessions has  claimed that he has a “secret process” for expediting appointments. But, so far, except for a “brief flurry” of appointments that were reportedly “already in  the pipeline” under Lynch, there hasn’t been much noticeable change in the timelines. Additionally, the process is often delayed because DOJ and EOIR have not planned adequately, and therefore have not acquired adequate space and equipment for new judges to actually start hearing cases.

Government bureaucrats love acronyms (so do I, in case you hadn’t noticed)! There is only one acronym that can adequately capture the current sorry state of administration of the U.S Immigration Courts under DOJ and EOIR administration: “FUBAR!”

And that’s without even getting to the all-out assault on Due Process for vulnerable respondents in the U.S. Immigration Courts being carried out by Jeff Sessions and his minions. According to my information, DOJ/EOIR “management” is pushing Immigration Judges to render twenty-minute “oral decisions;” complete “quotas” of 4-5 cases a day to get “satisfactory” ratings; and not include bond cases, administrative closure, Change of Venue, Credible Fear Reviews, or Motion to Reopen rulings in completions.

Since it takes an experienced Immigration Judge 3-4 hours to do a good job on a “fully contested” asylum decision with oral decision, that’s a “designed to fail” proposal that will undoubtedly lead to cutting of corners, numerous denials of Due Process, and remands from the U.s. courts of Appeals. But despite some disingenuous “rote references” to Due Process, it’s not even an afterthought in Sessions’s plan to turn Immigration Court into “Just Another Whistle Stop on The Deportation Railroad.”

As I say, “Bad ideas never die; they have a life of their own within the bureaucracy.” That’s why we need to get Immigration Courts out of the bureaucracy!
This Congress, which “can barely even tie its own  shoes,” so to speak, isn’t likely to get around to creating an Article I Immigration Court. But, every day that the current mal-administered and unfair  system remains within the DOJ is a Due Process and fairness disaster. That’s something that even Congress should be concerned about!   
Thanks to Attorney (and former Immigraton Judge) Sue Roy of New Jersey for  sending me the AILA Resolution.

PWS

02-07-18

 

 

 

Related posts:

  1. MICA ROSENBERG, READE LEVINSON, & RYAN McNEILL EXPOSE UNEQUAL JUSTICE & ABUSE OF VULNERABLE ASYLUM SEEKERS FROM “COURT” SYSTEM LACKING BASIC JUDICIAL INDEPENDENCE! Sessions’s Chilling Response: Speed Things Up, Establish Deportation Quotas, Strip Asylum Seekers Of Rights To Due Process, Eliminate Professional Judicial Training, & Aimlessly Throw More Inexperienced, Untrained Judges Into This Mess! – Will He Get Away With His Atrocious Plan To Make Immigration Courts The “Killing Floor?” — AN IN-DEPTH LOOK AT THE TRAVESTY OF JUSTICE UNFOLDING IN U.S. IMMIGRATION COURT ON A DAILY BASIS!
  2. GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!
  3. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!

https://slate.com/news-and-politics/2018/02/the-nativist-blueprint-for-trumps-immigration-plan.html

Jamelle writes in Slate:

“State of the Union on Tuesday night, “one that admits people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.”

The president and his allies claim such an immigration policy would promote cohesion and unity among Americans “and finally bring our immigration system into the 21st century.” Far from forward-facing, however, the president’s policies evoke the beginning of the 20th century, when war abroad and opportunity at home brought waves of immigrants to the United States, from Italians, Polish, and Russians to Chinese and Japanese. Their arrival sparked a backlash from those who feared what these newcomers might mean for white supremacy and the privileged position of white, Anglo-Saxon Americans. Those fears coalesced into a movement for “American homogeneity,” and a drive to achieve it by closing off America’s borders to all but a select group of immigrants. This culminated in 1924 with the Johnson-Reed Act, which sharply restricted immigration from Southern and Eastern Europe and all but banned it from much of Asia.

Members of the Trump administration have praised the Johnson-Reed Act for its severe restrictions on who could enter the country, and the act’s history helps illuminate what exactly Trump means when he says he wants to put “America first.”

The cohesion Trump espouses isn’t national or ideological. It is racial. The fight over immigration isn’t between two camps who value the contributions of immigrants and simply quibble over the mix and composition of entrants to the United States. It is between a camp that values immigrants and seeks to protect the broader American tradition of inclusion, and one that rejects this openness in favor of a darker legacy of exclusion. And in the current moment, it is the restrictionists who are the loudest and most influential voices, and their concerns are driving the terms of the debate.

At the heart of the nativist idea is a fear of foreign influence, that some force originating abroad threatens to undermine the bonds that hold America together. What critics condemned as “Know Nothing-ism” in the 19th century, adherents called Americanism. “The grand work of the American party,” said one nativist journal in 1855, “is the principle of nationality … we must do something to protect and vindicate it. If we do not, it will be destroyed.”

In the first decades of the 20th century, the defense of “the principle of nationality” took several forms. At the level of mass politics, it meant a retooled and reinvigorated Ku Klux Klan with a membership in the millions, whose new incarnation was as committed to anti-immigrant, anti-Catholic, and anti-Semitic politics as it was to its traditional anti-black racism. In Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan, historian Nancy MacLean notes how Georgia Klan leader William Joseph Simmons warned his followers that they were, in his words, “being crowded out by a “mongrel population … organized into Ghettos and Communistic groups … and uplifting a red flag as their insignia of war.” Likewise, Klan leaders and publications blasted Catholic immigrants as “European riff-raff” and “slaves of ignorance and vice” who threatened to degrade the country at the same time that they allegedly undermined native-born white workers. When, in 1923 and 1924, Congress was debating the Johnson-Reed Act, the Klan organized a letter-writing campaign to help secure its passage, turning its rhetoric into political action.

At the elite level, it meant the growth of an intellectual case for nativism, one built on a foundation of eugenics and “race science.” Prominent scholars like Madison Grant (The Passing of the Great Race) and Lothrop Stoddard (The Rising Tide of Color Against White World Supremacy) penned books and delivered lectures across the country, warning of a world in which “Nordic superiority” was supplanted by those of so-called inferior stock. “What is the greatest danger which threatens the American republic today?” asked eugenicist Henry Fairfield Osborn in the preface to Grant’s book. “I would certainly reply: The gradual dying out among our people of those hereditary traits through which the principles of our religious, political and social foundations were laid down and their insidious replacement by traits of less noble character.” The aim of the nativists was to preserve those traits and admit for entry only those immigrants who could fully and easily assimilate into them.

. . . .

It is true that there are some more moderate restrictionists in the mix, for whom the drive to reduce legal immigration is driven by concern and prudence—concern over immigration’s impact on wage and employment, especially among the country’s working-class citizens, and prudence regarding our ability to assimilate and absorb new arrivals.

The facts do not support these misgivings. Low-skilled immigration does more to bolster prospects for working-class Americans—providing complementary employment to construction and farm labor—than it does to lower wages. Likewise, immigrants to the United States have shown a remarkable capacity for assimilation, quickly integrating themselves into the fabric of American life by building homes, businesses, and families. To the extent that native-born workers need protection, it’s best provided by stronger unions and more generous support from the government.

But those moderate voices aren’t setting the agenda. Instead, it’s the hardliners who have used their initiative to inject nativism into mainstream politics and channel, in attenuated form, the attitudes that produced the 1924 law. President Trump, for example, ties Hispanic immigrants to crime and disorder, blaming their presence for gang violence. He attributes terror attacks committed by Muslim immigrants to the “visa lottery and chain migration” that supposedly allows them unfettered access to American targets. And in a recent meeting with Democratic and Republican lawmakers, Trump disparaged Haiti and various African nations as “shitholes” (or “shithouses”) whose immigrants should be turned away from the country in favor of those from European countries, like Norway. It’s unclear if Trump is aware of Rep. Albert Johnson, who spearheaded the 1924 immigration law. But in his racial ranking of immigrants, the president echoed the congressman’s sentiments. “The day of unalloyed welcome to all peoples, the day of indiscriminate acceptance of all races, has definitely ended,” proclaimed Johnson on the passage of the bill that bore his name.

The president isn’t alone in his views. Before joining the Trump administration, former White House adviser Stephen Bannon openly opposed nonwhite immigration on the grounds that it threatened the integrity of Western nations. And while Bannon has been exiled from Trump’s orbit, that legacy lives on. Stephen Miller, who is now the driving force behind immigration policy in the Trump administration, is a notorious hardliner who has echoed Bannon’s views, bemoaning the number of foreign-born people in the United States.

Miller is the former communications director for and protégé of Jeff Sessions, who as Alabama’s senator praised the Johnson-Reed Act and its restrictions on foreign-born Americans. “When the numbers reached about this high in 1924, the president and Congress changed the policy, and it slowed down immigration significantly,” Sessions said in a 2015 interview with Bannon. “We then assimilated through the 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

As attorney general, Sessions has leaned in to these views. “What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful?” said Sessions during a recent interview on Fox News. “That is not what a good nation should do, and we need to get away from it.” Rep. Steve King of Iowa, a staunch defender of Trump, is especially blunt in his defense of hardline immigration policies. “Assimilation, not diversity, is our American strength,” he said on Twitter last year.

Assimilation in those middle decades of the 20th century was built, to a considerable extent, on racial exclusion. It was assimilation into whiteness, one which bolstered and preserved the racial status quo. There’s no return to the America of that era, but one could slow the nation’s demographic transition. The White House proposals for immigration reform seem designed to do just that. According to an analysis from the Cato Institute, President Trump’s framework for immigration would slash entries by 44 percent, excluding almost 22 million people from the United States over the next 50 years. And in an analysis tied to the “Securing America’s Future Act”—a House-produced bill which hews closely to what the president wants—the Center for Global Development finds that white immigrants would be twice as likely to attain entry into the United States than black and Hispanic ones, while a majority of Muslim and Catholic immigrants would be barred from the country. Couple these measures with voter suppression, a biased census, apportionment by citizenship, extreme gerrymandering, and the existing dominance of rural counties in national politics, and you can essentially rig the system for the preservation of white racial hegemony.

Immigration policy is inextricably tied to our nation’s self-identity. What we choose to do reflects the traditions we seek to uphold. In the 1920s, most Americans wanted a more homogenous country, and they chose accordingly. Forty years later, in the midst of the civil rights revolution and a powerful ethos of inclusion, Americans reversed course, opening our borders to millions of people from across the globe. In this moment, we have two options. We can once again take the path that wants to keep “America for Americans,” and which inevitably casts American-ness in ways circumscribed by race, origin, and religion. Or we could try to realize our cosmopolitan faith, that tradition of universalism which elevates the egalitarian ideals of the Founding, and which seeks to define our diversity of origins as a powerful strength, not a weakness to overcome.

portrait of Jamelle Bouie

Jamelle Bouie

Jamelle Bouie is Slate’s chief political correspondent.”

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

Read the complete article, with more historical references to the racist historical basis for today’s GOP restrictionist policies, at the link.

Actually, “Gonzo Apocalypto,” most of those Latino, African, Hispanic, and Middle Eastern immigrants that you look down upon and disrespect aren’t illiterate in their own countries. And, they probably speak and understand English better than you do their native languages.

While you, Gonzo, have spent most of your adult life on the “public dole,” trying to turn back the clock and, as far as I can see, doing things of questionable overall value to society, immigrants have been working hard at critical jobs, at all levels of our society, that you and your White Nationalist buddies couldn’t or wouldn’t be able to do. Hard-working immigrants, not your “White Nationalist Myth,” have advanced America in the latter half of the 20th Century and the beginning of the 21st Century. Immigrants will continue to make America stong, prosperous, and great, if you and your White Nationalist restrictionist cronies would only get out of the way of progress!

“We can once again take the path that wants to keep “America for Americans,” and which inevitably casts American-ness in ways circumscribed by race, origin, and religion. Or we could try to realize our cosmopolitan faith, that tradition of universalism which elevates the egalitarian ideals of the Founding, and which seeks to define our diversity of origins as a powerful strength, not a weakness to overcome.”

Right on, Jamelle!

PWS

02-02-18

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  3. Michael Paarlberg @ THE GUARDIAN: HOW WACKO & COUNTERPRODUCTIVE IS TRUMP/SESSIONS “GONZO” IMMIGRATION ENFORCEMENT? — Who Screws Their Friends & Productive Residents While Empowering Multinational Gangs? — “[MS-13] can’t really be described accurately as a single gang but is rather a network of gangs with little centralized authority and a franchised name, whose street value only increases with each press conference by Trump and Sessions. . . . There aren’t many beneficiaries of Trump’s immigration policy, but there’s at least one: MS-13 couldn’t have asked for a better president than Trump.”
  4. GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!

ICEMEN GONE WILD: MINDLESS, COUNTERPRODUCTIVE, CRUEL, WASTEFUL “GONZO” IMMIGRATION ENFORCEMENT IS THE ORDER OF THE DAY UNDER THE TRUMP/SESSIONS REGIME! — “Have discretion and humanity been dropped from the attributes that Americans can expect of their law enforcement agencies?”

https://www.washingtonpost.com/opinions/unshackled-by-the-trump-administration-deportation-agents-discount-basic-decency/2018/01/28/0785a7b2-013d-11e8-bb03-722769454f82_story.html

From the Washington Post Editorial Board:

“IMMIGRATION AND CUSTOMS Enforcement, the federal agency whose deportation agents have been unshackled by the Trump administration, has intensified its efforts to such a degree that cruelty now seems no impediment to its enforcement decisions, and common sense appears to play a diminishing role.

Recent months have brought news of one senseless detention and deportation after another. From all appearances, the agency seems to have embraced the idea that it is just to sunder established families and separate immigrant parents from their U.S.-born children — even in cases involving garden-variety technical violations of immigration rules.

Yes, the Obama administration also deported some longtime residents who had committed no serious offenses, but its deportation efforts were focused on criminals. By contrast, detentions of immigrants with no criminal records more than doubled in the first year of President Trump’s administration — to 13,600 in 2017 from 5,498 in 2016. Evidently seized by a vainglorious notion of its mission, ICE too often discounts basic decency as a guiding tenet.

How else to explain the detention and imminent deportation of a 27-year-old Ohio man, arrested for driving without a license, who is the only means of financial support, and one of just two trained medical caregivers, for a 6-year-old paraplegic boy (who also happens to be a U.S. citizen)? How else to explain the deportation of a construction worker in Michigan, the father of 10- and 3-year-old U.S.-born boys, who provided critical help to police in Detroit in their investigation of a shooting?

How else to explain the airport arrest and deportation of a 22-year-old female college student from Spain, visiting the United States for a vacation at the invitation of a librarian at Oregon State University, on grounds that she would give Spanish lessons to the librarian’s young son for a few weeks — work for which she lacked the right visa? How else to explain the deportation of a 39-year-old landscaper living in the Detroit suburbs, a father and husband of U.S. citizens, who had lived in the United States since age 10 and whose record was so unblemished that it didn’t even feature a traffic violation? How else to explain the Israeli undergraduate at the University of California at San Diego, a “dreamer” studying legally in the United States, who was detained upon trying to cross back into the United States minutes after his roommate made a wrong turn on the highway, unintentionally driving into Mexico?

In its boilerplate communiques, the agency defends its actions by insisting that it prioritizes bona fide threats to national security and public safety but exempts no category of “removable alien” from enforcement. Which raises a question: Have discretion and humanity been dropped from the attributes that Americans can expect of their law enforcement agencies?”

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

In answer to the Post’s question: YES, thanks exactly what has been happening in America since the very beginning of the Trump regime — starting with the “Muslim Ban” and continuing with a consistent White Supremecist agenda! Many of us have been saying that all along!

We already have the “New American Gulag” — expanded “civil” immigration detention in substandard, potentially even deadly conditions, in obscure “out of sight, out of mind” locations. There, individuals, many deserving legal protection from the US under our laws, are denied fair access to counsel and railroaded out of the country in what essentially are “mock court” hearings conducted by “judges” controlled by notorious White Nationalist Jeff “Gono Apocalypto” Sessions.

Sessions and his minions encourage the judges to view individuals in removal proceedings as “production numbers, possible fraudsters, and potential terrorists,” rather than as vulnerable human beings deserving of fairness, respect, and due process.

To complement the “New American Gulag,” we now have the “New American Gestapo,” headed by Acting Chief ICEMAN Tom Homan. It’s an internal police force that operates without rules, rhyme, reason, or humanity — in other words arbitrary “Gonzo” enforcement intended to terrorize ethnic (primarily Latino) communities.

And, in case you haven’t read about it, ICE now has the capacity to electronically track the whereabouts and driving patterns of every license plate in America —- including YOURS! Of course they say that they will only use it for “legitimate” law Enforcement purposes.

But, for the “New American Gestapo” everything is “legitimate” — boundaries on law enforcement conduct and misconduct went out the widow when the Trumpsters crawled in. Remember, Gonzo essentially told local police forces he really didn’t care what they were doing to the civil rights of African-Americans and other minorities as long as they were enforcing the law and bringing crime rates down!

This is why ICE is well on its way to becoming the most hated, distrusted, and least respected police force in America.

Had enough of the Trump Administation’s trampling on Constitutional rights, civil rights, human rights, and just plain old human decency in America! Join the resistance!

The “New Due Process Army” (“NDPA”) is out there every day fighting for the Due Process and the legal rights of everyone in America and standing up against the excesses of the Trump Administration. Join their effort today!

PWS

01-29-18

 

 

 

 

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!
  3. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  4. GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!

MAKING GONZO PROUD: BIA TRASHES DUE PROCESS FOR PSG ASYLUM SEEKERS IN NEW PRECEDENT Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018) — Read Hon. Jeffrey’s Chase’s Commentary Here!

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Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018)

BIA HEADNOTE:

“(1) An applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.

(2) The Board of Immigration Appeals generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.”

PANEL: BIA Appellate Immigraton Judges MALPHRUS, MULLANE, and LIEBOWITZ

OPINION BY: Judge Garry D. Malphrus

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

The Impact of the BIA’s Decision in Matter of W-Y-C- & H-O-B-

In Matter of W-Y-C-& H-O-B-, 27 I&N Dec. 189 (BIA Jan. 19, 2018), the Board of Immigration Appeals held that “an applicant seeking asylum…based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group.”  My question is: “why?”

Delineating a particular social group is very complicated, even for experienced immigration lawyers.  When I put together the advanced asylum panel for the 2016 Immigration Judges’ legal training conference, an asylum specialist from the Department of Justice’s Office for Immigration Litigation (“OIL”) chose to lecture the immigration judges on a common error in the crafting of proposed social groups.  It is worth noting that OIL (which defends immigration judge decisions when they are appealed to the U.S. circuit courts) felt that immigration judges needed such instruction.   Prior to this decision, the BIA had issued 8 precedent decisions defining particular social groups since 2006.  Two of those decisions (issued in 2014) were required in order to clear up confusion caused by the language of the previous four decisions on the topic.

When describing the concept of asylum to non-attorney clients, I have completely given up on trying to explain to them what a particular social group is.  I’ve noticed that during asylum interviews, the DHS asylum officers have reached the same conclusion; they simply ask the asylum applicants if they were a member of “a group,” with no attempt to explain the unique properties of particular social groups.  Let’s also remember that there are many unaccompanied children applying for asylum, and that some are not represented because EOIR has opposed efforts to require the agency to assign them counsel.

The impact of requiring asylum applicants to clearly delineate such a complex term of art is significant.  Many of the “surge” cases filed by individuals fleeing violence in Central America are asylum claims based on membership in a particular social group.  With some 660,000 cases presently overwhelming the immigration court system, the decision in W-Y-C- & H-O-B- should help speed adjudication by allowing immigration judges and the BIA to issue boilerplate denials where social groups are not clearly delineated, and further prevent time-consuming remands where better defined groups are proposed on appeal (perhaps after a pro se respondent was able to obtain counsel).  But at what cost is this efficiency achieved?

Our adversarial system presents court decisions as entailing a winner and loser.  However, there are no winners when someone entitled to asylum is nevertheless denied and ordered deported.  This point was underscored by a recent article in The New Yorker, documenting that for many, deportation is truly a death sentence (Sarah Stillman, “When Deportation is a Death Sentence,” Jan.18,2018 https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence).

In a recent blog post concerning the treatment of children in immigration court, I referenced Matter of S-M-J-, a BIA precedent decision from 1997 (21 I&N Dec. 722).  The decision contains the following words of wisdom:  “Although we recognize that the burden of proof in asylum and withholding of removal cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”  Noting the shift from the non-adversarial nature of affirmative Asylum Office  interviews (then a part of the INS, now within DHS) to the adversarial immigration court proceedings, the Board concluded that “a cooperative approach in Immigration Court is particularly appropriate.”

This approach underscores a major difference between asylum and other types of legal status.  A person applying for lawful permanent status through, for example, cancellation of removal or via an immigrant visa is not an LPR until they are granted such status by an immigration judge or DHS.  However, as the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28, “A person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one.  He does not become a refugee because of recognition, but is recognized because he is a refugee.”

Paragraph 205 of the UNHCR Handbook delineates the duties of the asylum applicant and the adjudicator.  While the applicant’s duties involve truthfully providing detailed facts, supporting evidence where available, and “a coherent explanation of all of the reasons invoked” in his asylum application, the adjudicator, in addition to ensuring that the applicant presents his or her claim as fully as possible and then assessing credibility and evaluating the evidence, must also “relate these elements to the relevant criteria of the 1951 Convention, in order to arrive at the correct conclusion as to the applicant’s refugee status.”

It is this last requirement upon the adjudicator that is at odds with the Board’s decision in W-Y-C- & H-O-B-.  Under the decision, an asylum applicant may already have satisfied all of the refugee requirements (which of course includes establishing a well-founded fear of suffering persecution if returned to their country of nationality), yet be denied asylum and ordered deported to suffer serious harm simply because they lacked the legal sophistication to articulate a very complicated formula for delineating a particular social group.  Why wouldn’t the present Board invoke a cooperative approach as required by the nature of asylum and its international law obligations, as an earlier BIA did in Matter of S-M-J-?  Why shouldn’t the immigration judge (perhaps with assistance from the DHS attorney) step in where the applicant is not able and analyze the facts presented pursuant to the relevant case law to help formulate a particular social group (as some IJs do at present)?

In summary, the Board’s recent decision will allow immigration judges to deny asylum to credible applicants who clearly meet the refugee criteria.  By setting a nearly impossible standard for non-attorneys (including children) to meet, it can result in those deserving of protection being sent to countries where they may face rape, torture, or death.

Why?

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED WITH PERMISSION

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OK. Let’s make this real simple. As opposed to asylum, which is discretionary, withholding of removal based on fear on account of a “particular social group” is mandatory relief under the Act.  The BIA is saying that even if the Respondent were entitled to mandatory withholding of removal based on a “particular social group,” they will refuse that mandatory protection if the respondent failed to articulate each and every specific element of the “PSG” before the Immigration Judge!

And, just how would unrepresented children and other unrepresented individuals, many in detention, be able to articulate all of the complex elements of a PSG? (And that’s even before the Trump/Gonzo/White Nationalist proposal to illegally strip undocumented children of any Due Process rights and let them be deported at will by CBP!)

Clearly, in Matter of W-Y-C-& H-O-B-, the BIA has abandoned any pretense its essential mission of “guaranteeing fairness and due process for all.” I’m sure that becoming “Conductors on Gonzo’s Deportation Railroad” will be career enhancing for the BIA Judges. But, in actuality, they should be ashamed!

And, what are the views of the other dozen or so BIA Appellate Judges who weren’t on this panel. Do they all agree with this travesty of justice? Is there nobody in this “Gang of 15” willing to stand up for Due Process and fairness for vulnerable asylum seekers? It raises the question of “Why have a BIA at all if it can’t and won’t protect fairness and due process for asylum seekers?”

I dissent!

PWS

01-26-18

 

 

Related posts:

  1. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

GONZO’S WORLD: “APOCALYPTO” REVS UP “NEW CIVIL WAR ON AMERICA” WITH RENEWED ATTACK ON LOCAL LAW ENFORCEMENT — 10th Amendment, Consistent Court Losses, & Common Sense Fail To Deter Scofflaw A.G. — “[T]here is irony in Sessions threatening to withhold law enforcement grants in the name of fighting crime.”

https://www.washingtonpost.com/world/national-security/justice-department-threatens-to-subpoena-records-in-escalating-battle-with-sanctuary-jurisdictions/2018/01/24/984d0fee-0113-11e8-bb03-722769454f82_story.html

Matt Zapotosky reports for the Washington Post:

“The Justice Department on Wednesday escalated its attempt to crack down on so-called “sanctuary” jurisdictions, threatening to subpoena 23 states, cities and other localities that have policies the department suspects might be unlawfully interfering with immigration enforcement.

President Trump and Attorney General Jeff Sessions have long promised to target places with policies friendly to those in the country illegally — warning they might withhold federal money from some and trying to tie grant eligibility to cooperation with federal authorities on immigration matters. The Justice Department had previously contacted the 23 jurisdictions threatened Wednesday, raising worries they might be in violation of a federal law barring places from enacting policies that block communication with Immigration and Customs Enforcement.

In a new letter, Bureau of Justice Assistance Director Jon Adler said officials remained “concerned” that the places had policies that violate the law, even after their previous responses. He asked for a new bevy of documents — including “any orders, directives, instructions, or guidance to your law enforcement employees” — and said the department would subpoena the materials if necessary.

. . . .

Among those jurisdictions in the crosshairs are Chicago, New York City, Los Angeles and the states of California, Illinois and Oregon. In total, the 23 jurisdictions received more than $39 million in fiscal year 2016 money from the Edward Byrne Memorial Justice Assistance Grant Program — which Sessions is now threatening to put at risk.

ADVERTISEMENT

Local leaders criticized the move. New Orleans Mayor Mitch Landrieu (D), president of the U.S. Conference of Mayors, said he would skip a planned White House meeting on infrastructure because of it. “An attack on one of our cities mayors who are following the constitution is an attack on all of us,” he said. His city was not among those targeted Wednesday.

New York City Mayor Bill de Blasio similarly wrote on Twitter he would skip the gathering after Trump’s Justice Department “decided to renew their racist assault on our immigrant communities. It doesn’t make us safer and it violates America’s core values.”

Chicago Mayor Rahm Emanuel (D) said officers in his city endeavor to build trust with residents to reduce public safety threats, and “you cannot do that if you drive a wedge between any immigrant community and the law enforcement.” He said Sessions’s threats were “amazing” in that the attorney general seemed to “disregard what the court system has already said uniformly from coast to coast.”

White House Press Secretary Sarah Huckabee Sanders said: “The White House has been very clear that we don’t support sanctuary cities. We support enforcing the law and following the law, and that is the Department of Justice’s job is to do exactly that, and if mayors have a problem with that, they should talk to Congress.”

Much of this crackdown has been stymied by the courts. A federal judge in California last year blocked Trump’s executive order to cut funding to such places, and a federal judge in Chicago ruled that Sessions had exceeded his authority in imposing new conditions, such as requiring recipients to give immigration authorities access to jails and 48 hours notice when suspected illegal immigrants are to be released. A federal judge in Philadelphia also ruled that city was in compliance with the law and blocked the Justice Department from withholding money. The Justice Department has appealed all those cases.

. . . .

Sessions has long sought to tie crime to immigration — recently releasing data, which experts said was misleading, that said 73 percent of terrorism convictions in the U.S. involved individuals from other countries. Determining a link between illegal immigration and other crime is statistically difficult to do, though some research shows that immigrants are less likely to commit crimes than those who are native born. Civil liberties and immigration advocates, too, note there is irony in Sessions threatening to withhold law enforcement grants in the name of fighting crime.”

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Read the complete article at the link.

On paper, Gonzo isn’t actually in charge of the DHS. That job is nominally in the hands of Lightweight Sycophant Kirstjen Nielsen.

Remarkably, what Sessions is actually supposed to be doing is administering a fair and unbiased U.S. Immigration Court System in a manner that guarantees the legal and Constitutional Due Process rights of each individual brought before those courts by the DHS. Yeah, right! Sessions never met a migrant he didn’t despise and want railroaded out of the country as part of his White Nationalist agenda. And, he’s clearly “in bed” with DHS Enforcement. That’s why the U.S. Immigration Courts under Gonzo Apocalypto are well on their way to becoming mere “Whistle Stops on the Deportation Railway.”

There was a time when what is now ICE worked hard to gain community support and be considered part of the “legitimate law enforcement apparatus.” But, those days are long gone.

Trump, Gonzo, and Tom Homan are well on the way to making ICE the most hated, distrusted, and despised police force in America — the “New American Gestapo” if you will. The aforenamed “nasty clowns” will be gone someday. But, I’m not sure that ICE will ever be able to undo the damage they are doing to its reputation and standing in the law enforcement community.

As one or more Federal Judges has noted in enjoining Gonzo’s illegal overstepping, “once lost, community trust is not easily, if ever, regained by the police.”

PWS

01-25-18

Related posts:

  1. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
  2. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. NEW EOIR MEMO ENCOURAGES IMMIGRATION JUDGES TO DUMP ON UNACCOMPANIED CHILDREN (“UACS”) – “When In Doubt, Kick ‘em Out” New Motto Of Gonzo’s “Captive Courts!” — We’ve Come A Long Way From “Guaranteeing Fairness And Due Process For All” In A Short Time!

MANUEL MADRID @ AMERICAN PROSPECT: Sessions Relishes Chance To Turn U.S. Immigration Courts Into “Whistle Stops On His Deportation Railway!” – Administrative Closing Likely Just To Be The First Casualty – I’m Quoted!

http://theprosp.ec/2E3a315

Manuel writes:

“Jeff Sessions Is Just Getting Started on Deporting More Immigrants

MANUEL MADRID

JANUARY 23, 2018

He’s speeding up their hearings, and if that leads to expelling exemplary immigrants on whose paperwork the government is sitting—well, that’s tough.

AP Photo/Carolyn Kaster

Attorney General Jeff Sessions speaks during a news conference at the Justice Department

This could be Jeff Sessions’s year.

Not that he wasn’t busy in 2017, a year marked by his rescinding Deferred Action for Childhood Arrivals (DACA), attacking sanctuary cities, reinstating debtors’ prisons, and cracking down on recreational marijuana. Indeed, over these last few months Sessions appears to have been working with the single-minded focus of a man who reportedly came within inches of losing his job in July after falling into President Trump’s bad graces for recusing himself from the Mueller probe.

But 2018 will provide him his best chance yet at Trumpian redemption.

Sessions has long railed against the United States’ “broken” asylum system and the massive backlog of immigration court cases, which has forced immigrants to suffer unprecedented wait times and has put a significant strain on court resources. But the attorney general’s appetite for reform has now grown beyond pushing for more judges and a bigger budget, both largely bipartisan solutions. The past few months have seen Sessions begin to attempt to assert his influence over the work of immigration courts (which, unlike other federal courts, are part of the Executive Branch) and on diminishing the legal protections commonly used by hundreds of thousands of immigrants—developments that have alarmed immigration judges, attorneys, and immigrant advocacy groups alike.

Earlier this month, Sessions announced that he would be reviewing a decades-old practice used by immigration judges and the Justice Department’s Board of Immigration Appeals to shelve cases without making a final ruling. Described by judges as a procedural tool for prioritizing cases and organizing their case dockets, the practice—“administrative closure”—also provides immigrants a temporary reprieve from deportation while their cases remain in removal proceedings. Critics argue that administrative closure, which became far more frequent in the later years of the Obama administration, creates a quasi-legal status for immigrants who might otherwise be deported.

There are currently around 350,000 administratively closed cases, according to according to the American Bar Association’s ABA Journal.

Should Sessions decide to eliminate administrative closures—a decision many observers describe as imminent—those cases could be thrown into flux. The move would be in line with previous statements from various figures in the Trump administration and executive orders signed by the president himself—namely, that no immigrant is safe from deportation; no population is off the table.

Beyond creating chaos for hundreds of thousands of immigrants, the premature recalendaring of cases could also lead to erroneous deportations. For instance, in the case of unaccompanied minors applying for Special Immigrant Juvenile Status, a humanitarian protection granted by Citizenship and Immigration Services, an untimely return to court could be the difference between remaining or being ordered to leave the country. Even if a minor has already been approved by a state judge to apply for a green card, there is currently a two-year visa backlog for special visa applicants from Ecuador, Guatemala, and Honduras and more than a one-year backlog for those from from Mexico. Administrative closures allow these children to avoid deportation while they wait in line for a visa to become available.

But if judges can no longer close a case, they will either have to grant a string of continuances, a time-consuming act that requires all parties (the judge, defendant, and government attorney) to show up to court repeatedly, or simply issue an order of removal—even if the immigrant has a winning application sitting on a desk in Citizenship and Immigration Services. Under the Trump administration, Immigrations and Customs Enforcement has been actively filing to recalendar cases of non-criminals that had been administratively closed for months, including those of children whose applications had already been approved. Now Sessions, who as a senator zealously opposed immigration reforms that would benefit undocumented immigrants, could recalendar them all.

Unshelving hundreds of thousands of cases would also further bog down an already towering backlog of approximately 650,000 immigration court cases, according to Syracuse University’s Transactional Records Access Clearinghouse—a policy result that at first seems antithetical to Sessions’s rhetoric about cutting the backlog and raising efficiency. That is unless, as some suggest, the backlog and efficiency were never really his primary concerns to begin with.

“When [Sessions] says he wants to decrease the court backlog and hire more immigration judges, what he really means is he wants more deportation orders, whatever the cost,” says Heidi Altman, director of policy at the National Immigrant Justice Center.

 Removing a judge’s ability to close a case would be the second in a one-two punch aimed at knocking down avenues of relief for cases that remain in the system for long periods of time.

Sessions’s decision to review administrative closure surprised few who had been following his rhetoric over the past few weeks. In a December memo detailing plans to slash the backlog, the attorney general said that he anticipated “clarifying certain legal matters in the near future that will remove recurring impediments to judicial economy and the timely administration of justice.” The Justice Department had already largely done away with allowing prosecutors to join in motions to administratively close a case that didn’t fall within its enforcement priorities. Removing a judge’s ability to close a case would be the second in a one-two punch aimed at knocking down avenues of relief for cases that remain in the system for long periods of time.

And it’s unlikely that Sessions will stop there. As attorney general, he is free to review legal precedents for lower immigration courts. In changing precedential rulings, he could do away with a multitude of other legal lifelines essential to immigrants and their attorneys.

. . . .

“Administrative closure makes a good starting point for Sessions, because the courts likely won’t be able stop it,” says Paul Schmidt, a former immigration judge and former head of the Board of Immigration Appeals. “Administrative closure was a tool created by the Justice Department and therefore it can be dismantled by the Justice Department.”

“After all, the bad thing about the immigration courts is that they belong to the attorney general,” Schmidt adds.

Unlike other federal judges, immigration judges are technically considered Justice Department employees. This unique status as a judicial wing of the executive branch has left them open to threats of politicization. In October, it was revealed that the White House was planning on adding metrics on the duration and quantity of cases adjudicated by immigration judges to their performance reviews, effectively creating decision quotas. A spokeswoman for the National Association of Immigration Judges described the proposal as a worrying encroachment on judicial independence. “Immigration judge morale is at an all time low,” says Dana Marks, former president of the association and a judge for more than 30 years. Other federal judges are not subject to any such performance evaluations.

It’s no coincidence that a review of administrative closure was announced just a few months after it was discovered that the Justice Department was considering imposing quotas on judges. Streamlining deportations has proven an elusive goal, even for Sessions: Deportations in 2017 were down from the previous year, according to DHS numbers. Meanwhile, arrests surged—up 42 percent from the same period in 2016. Flooding already overwhelmed immigration courts with even more cases would certainly cause chaos in the short-term, but wouldn’t necessarily lead to deportations by itself. If an end to administrative closures is paired with decision quotas on immigration judges, however, a surge in deportations seems inevitable.”

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Read Manuel’s complete article at the above link.

As I’ve noted before, Due Process clearly is “on the run” at the U.S. Immigration Courts. It will be up to the “New Due Process Army” and other advocates to take a stand against Sessions’s plans to erode Constitutional Due Process and legal protections for immigrants of all types. And don’t think that some U.S. citizens, particularly Blacks, Latinos, and Gays, aren’t also “in his sights for denial of rights.” An affront to the rights of the most vulnerable in America should be taken seriously for what it is — an attack on the rights of all of us as Americans! Stand up for Due Process before it’s too late!

PWS

01-23-18

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
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