Category: NY Immigration Court

☹️ WORLD REFUGEE DAY 2023  (JUNE 20) IN AMERICA: More Asylum Seekers Denied Access; Flubbed Resettlement; Kids Face Court Alone; NGOs Left To Pick Up Slack!

 

Starving ChildrenKids are among the many groups of refugees and asylum seekers ill-served by the Biden Administration’s policies and performance. “World Refugee Day 2023” is a rather grim reminder of America’s failure to live up to its obligations to the world’s most vulnerable!
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ACCESS DENIED

Hamed Aleaziz reports for the LA Times:

https://apple.news/AnR6bRRRoSxm4nMAHyNOLXQ

A new Biden administration policy has dramatically lowered the percentage of migrants at the southern border who enter the United States and are allowed to apply for asylum, according to numbers revealed in legal documents obtained by The Times. Without these new limits to asylum, border crossings could overwhelm local towns and resources, a Department of Homeland Security official warned a federal court in a filing this month.

The new asylum policy is the centerpiece of the Biden administration’s border efforts. 

Under the new rules, people who cross through a third country on the way to the U.S. and fail to seek protections there are presumed ineligible for asylum. Only people who enter the U.S. without authorization are subject to this new restriction.

The number of single-adult migrants who are able to pass initial screenings at the border has dropped from 83% to 46% under the new policy, the Biden administration said in the court filing. The 83% rate refers to initial asylum screenings between 2014 and 2019; the new data cover the period from May 12, the first full day the new policy was in place, through June 13.

Since the expiration of Title 42 rules that allowed border agents to quickly turn back migrants at the border without offering them access to asylum, the administration has pointed to a drop in border crossings as proof that its policies are working.

But immigrant advocates and legal groups have blasted Biden’s new asylum policy, arguing that it is a repurposed version of a Trump-era effort that made people in similar circumstances ineligible for asylum. (Under Biden’s policy, certain migrants can overcome the presumption that they are ineligible for asylum.) The ACLU and other groups have sought to block the rule in federal court in San Francisco, in front of the same judge who stopped the Trump policy years ago.

The new filing provides the first look at how the Biden administration’s asylum policy is affecting migrants who have ignored the government’s warnings not to cross the border. 

“This newly released data confirms that the new asylum restrictions are as harsh as advocates warned,” said Aaron Reichlin-Melnick, policy director at the American Immigration Council. “The data contradicts conservative attacks on the rule for being too lenient. Less than 1 in 10 people subject to the rule have been able to rebut its presumption against asylum eligibility.”

. . . .

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Read Hamed’s full story at the link.

None of the statistics cited in the article actually give a full picture, since the don’t account for 1) families, 2) children, and 3) those processed at ports of entry using the highly controversial “CBP One App.” Nor do they give insights into what happens to those denied access to the asylum adjudication system.

As Aaron Reichlin-Melnick points out, increased rejections of legal access are exactly what experts, including our Round Table of Former Immigration Judges, predicted in vigorously opposing the Administration’s ill-advised regulatory changes. See, e.g., https://immigrationcourtside.com/2023/03/27/⚔️🛡-round-table-joins-chorus-of-human-rights-experts-slamming-biden-administrations-abominable-death-to-asylum-seekers-☠️-proposed/.

In the article, DHS official Blas Nuñez-Neto babbles on about the wonders of mindless extralegal enforcement as a “deterrent.” In a classic example of disingenuous misdirection, Nuñez-Neto appears to suggest that “success” in implementing asylum laws should be measured in terms of the number of individuals denied access or discouraged from applying. 

Actually, success in implementing asylum laws should be measured solely by whether 1) all asylum applicants regardless of status or where they apply are treated fairly and humanely; and 2) those eligible for asylum under a properly generous, protection-focused application of asylum laws are actually granted asylum in a timely manner complying with due process. By those measures, there is zero (O) evidence that the Biden Administration’s approach is “successful.” 

Moreover, Nuñez-Neto’s comments and much of the media focus skirt the real issue here. Border apprehensions have decreased because asylum seekers in Northern Mexico appear to be “waiting to see” if the “CBP One App System” at ports of entry actually offers them a fair, viable, orderly way of applying for asylum. In other words, does the Biden Administration’s legal asylum processing system have “street credibility?” 

So far, CBP One and DHS appear determined to “flunk” that test; the App continues to be plagued with technical and access glitches, and the numbers of appointments available is grossly inadequate to meet the well-known and largely predictable demand.

If the border lurches out of control in the future, it probably will be not the fault of legal asylum seekers. Rather, it will be caused by poorly-conceived and legally questionable Biden “deterrence policies” and the restrictionist politicians (in both parties, but primarily the GOP) who are “egging them on.”  That is, an Administration unable to distinguish its friends from its enemies and unwilling to develop a comprehensive strategy for dealing with the inevitably of refugee flows by creatively and positively using and “leveraging” the ample (if imperfect) existing tools under our legal system. 

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ADMINISTRATION’S FLUBBED RESETTLEMENT (NON) EFFORT EMPOWERS GOP WHITE NATIONALISTS, VEXES PROGRESSIVE DEMS

Nick Miroff & Joanna Slater report for WashPost:

NEW YORK — On the fourth day of his new life in New York City, Antony Reyes set out from the opulent lobby of Manhattan’s Roosevelt Hotelwith an empty wallet and the address of a juice bar on Broadway possibly offering some work.

Reyes had been staying at the crowded hotel-turned-emergency service center, hunting odd jobs during the day along with other newly arrived Venezuelans who navigated the streets of midtown using “Las Pantallas”— the Screens (a.k.a. Times Square) as a landmark.

“I just want to work,” Reyes said in Spanish. “I didn’t come here to be a burden on anyone.”

Reyes, 23, was among the tens of thousands of migrants who rushed to cross the U.S.-Mexico border ahead of May 11, when the Biden administration lifted the pandemic policy known as Title 42. The largest group were Venezuelans, who have been arriving to the United States in record numbers since 2021.

Unlike previous waves of Latin American immigrants who gravitated to communities where friends and family could receive them, the most recent Venezuelan newcomers tend to lack those networks in the United States. Many have headed straight to New York, whose shelter system guarantees a bed to anyone regardless of immigration status.

City officials say they are housing more than 48,000 migrants across an array of hotels, dormitories and makeshift shelters that now spans 169 emergency sites.

New York has spent $1.2 billion on the relief effort since last summer. The ballooning costs have left Mayor Eric Adams feuding with local leaders upstate over who should take responsibility for the migrants, and he has also called out President Biden, a fellow Democrat, for not sending more aid.

Other U.S. cities are struggling with the influx too. Denver, Philadelphia and Washington — all cities with Democratic mayors — have received migrants bused from Texas as part of a campaign by Republican Gov. Greg Abbott to denounce Biden administration border policies. In Chicago, migrants have slept in police stations while awaiting shelter beds.

Officials in those cities are scrambling to find bed space and clamoring for more federal assistance. But the ad hoc nature of the humanitarian effort raises questions about the ability of New York City and other jurisdictions to receive and resettle so many newcomers.

The flow of Venezuelans crossing the southern border has dropped since the Title 42 policy ended, even as many continue arriving in cities in northern Mexico in hopes of reaching the United States. The Biden administration is tightening border controls and urging Venezuelans and others to apply for legal U.S. entry using a mobile app, while expanding the number of slots available for asylum seekers to make an appointment at an official border crossing.

The number of people requesting appointments, however, far outstrips supply.

The influx of migrants in New York has pushed the city’s total shelter population to 95,000, up from 45,000 when Adams took office in January 2022.

“We have reached a point where the system is buckling,” Anne Williams-Isom, deputy mayor for health and human services, told reporters at a news conference in late May.

. . . .

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Read the rest of Nick’s & Joanna’s article at the link.

This Administration has been in office more than two years, with knowledge of the inevitable flow of asylum seekers, particularly from Venezuela and access to some of the best and most innovative human rights experts in the private sector.

Yet, this Administration has failed to 1) put in place an orderly nationwide resettlement system in partnership with the many NGOs and some localities “already in the business;” 2) construct “regional reception centers” to provide food, shelter, representation, and support to asylum seekers during the legal process, as recommended by many experts, and 3)  restore functionality and timeliness to the legal asylum systems at USCIS and EOIR by a) cleaning out the “deadwood” (or worse) accumulated during the Trump Administration, and b) hiring experts, not afraid to properly use asylum and other laws to “protect rather than reject” and to replace the anti-asylum culture and legal regimes installed and encouraged at DHS and EOIR under Tump.

Additionally, most Venezuelans can’t be returned anyway, and the Administration’s apparent hope to “orbit” many of them to Mexico, a country far less able to absorb them than than the U.S., is ill-advised at best. 

Consequently, updating TPS for Venezuelans and others, thus providing employment authorization and keeping them out of the already dysfunctional asylum system, should have been a “no brainer” for this Administration.

This is a truly miserable absence of creative, practical problems-solving by a group that ran on promises to do better. Given the shortage of affordable housing in NY and other areas, why not “replicate and update” the CCC, WPA, and other public works projects from FDR’s “New Deal?” 

Give those arriving individuals with the skill sets opportunities to construct affordable housing for anyone in need, with an chance to live in the finished product as an added incentive! Let migrants be contributors and view their presence as an opportunity to be built upon rather than as a  “problem” that can’t be solved. 

Not rocket science! 🚀 But, evidently “above the pay grade” for Biden Administration immigration policy wonks!

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CONSTITUTION MOCKED BY ALL THREE BRANCHES AS KIDS CONTINUE TO FACE IMMIGRATION COURT ALONE!

https://documentedny.com/2023/06/20/unaccompanied-minors-immigration-court-asylum/

GIULIA MCDONNELL NIETO DEL RIO reports for Documented:

The 10-year-old boy sat in a chair that was too big for him and he asked the immigration judge in Spanish if he could speak to the court.

“Please, don’t deport me,” the boy, Dominick Rodriguez-Herrera, pleaded into the microphone. “I want to stay with my brother.”

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Then he buried his head into his mother’s stomach as they embraced, tears welling in both their eyes. “Don’t cry,” his mother told him softly, with one arm around Dominick, and the other holding her two-month-old son who whined on her shoulder.

Also Read: The Central American Minors Program Struggles to Get Back on Its Feet

The family, from Guatemala, was at the Broadway immigration court in Lower Manhattan last week for an initial hearing in Dominick’s immigration case. Dominick had crossed the U.S.-Mexico border alone in March of 2022, and was designated as an unaccompanied minor. 

Dominick’s mother, Nelly Herrera, told Documented the ordeal began when they were both  kidnapped in Mexico and separated. She said Dominick escaped their captors and reached the U.S. border. Malnourished and thin from weeks of little food, he managed to squeeze through a wall into California, although she’s not sure where. He was only eight years old, and had no idea where his mother was.

“He doesn’t talk about all that a lot because he says it’s something he doesn’t want to be reminded of anymore,” she said.

After authorities helped Herrera escape her captors in Mexico, she and Dominick were reunited last year. Now, without a lawyer, they are fighting for a chance for Dominick to stay with her in the U.S.

At a time when immigration courts are struggling to manage the high volume of migrants coming to New York City, another section of the system is facing a high volume of deportation cases: those of unaccompanied minors – children who entered the U.S. when they were under the age of 18, without a parent. Many of them show up to court without an attorney, and advocates are concerned that there aren’t enough resources to reach all of them.

“We are definitely seeing an uptick in the numbers,” said Sierra Kraft, executive director of a coalition called the Immigrant Children Advocates Relief Effort (ICARE).

Kraft said she observed the juvenile docket several times this year and found hundreds of children had come to court without legal representation.

“There was a little two year old that was sitting there with a sponsor, and they had no representation and really no idea what to do next. So it’s a real crisis,” Kraft said.

. . . .

At a Senate hearing on the safety of unaccompanied migrant children in Congress last week, Lorie Davidson, Vice President of Children and Family Services at Lutheran Immigration and Refugee Service, testified that most unaccompanied children do not have an attorney to represent them.

“I do not know of any other circumstances in which a three-year-old would have to represent themselves in court. It is indefensible,” Davidson said at the hearing.

. . . .

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Read Giulia’s complete article at the link.

Administrations of both parties have employed and disgracefully defended this clearly unconstitutional, due-process-denying process. The “low point” was probably during the Obama Administration when an EOIR Assistant Chief Immigration Judge infamously claimed that he could “teach asylum law to toddlers” — touching off an avalanche of internet satire. See https://www.aclu.org/video/can-toddlers-really-represent-themselves-immigration-court.

But, the Executive has had plenty of help from Congress and the Article III Courts, who both have failed to end this mockery of constitutional due process as well as common sense. It’s hard to imagine a more glaring, depressing example of failure of public officials to take their oaths of office seriously!

On the other hand, NY Immigration Judge Olivia Cassin, mentioned in the full article, is the right person for the job of handling the so-called “juvenile docket” at EOIR. A true expert in immigration and human rights laws, she came to the job several decades ago with deep experience and understanding gained from representing individuals pro bono in Immigration Court. 

She is a model of what should be the rule, not the exception, for those sitting on the Immigration Bench at both the trial and appellate levels. Although AG Garland has done somewhat better than his predecessors in “balancing” his appointments, EOIR still skews far too much toward those with only prosecutorial experience or lacking ANY previous immigration and human rights qualifications.  

Consequently, poor, inconsistent, and uneven judicial performance remains endemic at EOIR and not sufficiently addressed by Garland in his two plus years in office. Just another reason why Garland’s failing courts are running a 2 million case backlog and are unable to provide the nationwide due process, guidance, leadership, and consistency that EOIR was supposedly created to furnish.

Brilliant, well-qualified, and committed as individuals like Judge Cassin are, they are not going to be able to solve this problem without some help and leadership from above. Sadly, this doesn’t appear got be on the horizon.

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UPHOLDING THE RULE OF LAW & HUMAN DECENCY FOR REFUGEES HAS BEEN LEFT LARGELY TO NGOs IN LIGHT OF THE USG’S SYSTEMIC FAILURE 

Jenell Scarborough, Pathway to Citizenship Coordinator at EL CENTRO HISPANO INC, reports on Linkedin on a on a more optimistic note about the activities of those who actually are working to preserve and extend the rule of law and human decency to refugees:

What a way to celebrate World Refugee Day, with a community listening section where we meet community leaders who every day make extraordinary efforts to join forces and serve Immigrants and Refugees. We’re not just hearing from Eva A. Millona Chief, USCIS Office of Citizenship, Partnership and Engagement and the Chief of Foreign Affairs for Foster America.
 Thanks to Cristina España for keeping us connected with local government agencies and making visible the work of grassroots organizations, where El Centro Hispano works tirelessly. Without a doubt a great night!

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Way to go, Jenell. Encouraging to know that you are taking our legal obligations to refugees seriously, even if too many USG officials in all three branches aren’t! (Eva A. Millona of USCIS, mentioned in the post appears to be a rare exception among those in leadership positions within this Administration).

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🇺🇸 MAKE EVERY DAY WORLD REFUGEE DAY, & Due Process Forever!

PWS

06-21-23

 

 

Related posts:

  1. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  2. ⚖️🗽MORE TRUTH ABOUT THE SOUTHERN BORDER FROM ONE OF AMERICA’S 🇺🇸 LEADING HUMAN RIGHTS EXPERTS: “Real Needs, Not Fictitious Crises Account For The Situation at US-Mexico Border,” By Donald Kerwin Center For Migration Studies
  3. 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! 
  4. ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”

😎👍🏼🗽⚖️GOOD NEWS CORNER: Hofstra Law Clinic Wins Salvadoran Gang PSG Asylum Case! — There Are “Models For Excellent Judging” Out There! Why Do We Tolerate A White Nationalist Kakistocracy That Maliciously Undermines Them?

 

Hello,

 

I want to share some good news: my Deportation Defense Clinic at the Hofstra Law Clinic won an asylum case on the PSG of “U.S. law enforcement labeled gang members” before Judge Poczter at 290 Broadway for a client falsely accused of gang allegations. See the redacted decision attached. We’re waiting to see if DHS appeals within these next two weeks and are prepared to continue the fight if necessary.

Quote on Page 13:

“Respondent’s social group, ‘U.S. law enforcement labeled gang members’ is cognizable, in that its members share an immutable characteristic that is socially distinct within Salvadorian society and defined with sufficient particularity.”

 

I’m willing to share the redacted TOE and brief with those interested.

 

Deep gratitude is owed to CLINIC/NITA, Michelle Mendez, Vickie Neilson, and folks at Hofstra including Lauris Wren, law graduates Lorena Paulino and Trishshawn Raffington, and many others.

 

Dr. Tom Boerman and I are working on a law review article on this topic, and I hope this new resource will be helpful to others defending clients from false gang allegations. More to follow soon.

 

Best,

Alex Holtzman

Director of the Deportation Defense Clinic

Hofstra Law Clinic

Redacted_IJ Decision_Asylum grant for false gang alleg PSG

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So, even in the time of time of extreme White Nationalist restrictionism in Government, there are still plenty of “winnable” asylum cases out there if individuals: 1) get access to the hearing process; 2) have access to competent lawyers; 3) get time to prepare and document cases; and 4) have a fair and impartial Immigration Judge with knowledge of asylum law. A fair and reasonable INS Assistant Chief Counsel is also an important factor.

How many valid cases like this are being turned back at our borders under the regime’s “fake COVID-19” rules with no hearings at all? How many are being summarily deported without fair credible fear interviews or an opportunity for impartial judicial review as a result of the Supremes’ latest expedited removal constitutional abomination?

Interestingly, this case was so well prepared and documented that ICE and the Clinic stipulated as to the testimony and merely submitted that record to Judge Poczter for a legal analysis and decision. Shows that without political interference, judges and parties can work together to facilitate a fair and timely resolution of cases without trampling on due process. 

It’s simply a “crime against humanity” that the Immigration Court system is run by bigoted anti-asylum zealots with no interest in due process or fundamental fairness.

So, what if decisions like Judge Poczter’s (a former BIA Attorney Advisor during my tenure) were the precedents, instead of deny, deny, deny? What if “best practices” were valued? What if achieving correct results in accordance with due process were the object, rather than increasing the number of asylum denials to fit a false narrative? What if asylum law were properly applied to protect, rather than reject?

This could be a system that would do justice and make America  proud. But, it’s not going to happen without an independent, merit-based judiciary and an Administration that works to achieve equal justice for all, rather than undermining it at every step.

Due Process Forever!

PWS

07-15-20

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. 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.”
  3. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  4. “IT’S 1939” & WHITE NATIONALIST AMERICA IS FAILING HUMANITY AGAIN: THE ST. LOUIS REPLAY: History Will Neither Forget Nor Forgive Us For Wrongfully Sending Refugees To Their Doom – Nor Will The Complicit Roles Of The Supremes & Other Life-Tenured Federal Judges Be Buried Beneath Their Cowardly Legal Gobbledygook! — “Extermination As Deterrence” Is Not “OK Policy!”

AS U.S. DISTRICT JUDGES DITHER, DYSFUNCTIONAL IMMIGRATION COURTS THREATEN NATION’S HEALTH & SAFETY — “I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown!” ☠️☠️☠️☠️☠️👎🏻👎🏻👎🏻👎🏻👎🏻😰😰😰😰😰⚰️⚰️⚰️⚰️⚰️🦠🦠🦠🦠🦠🧫🧫🧫🧫🧫🆘🆘🆘🆘🆘🆘

Liz Robbins
H Liz Robbins
Legal Reporter
NY Times

https://apple.news/AiFcpYTPESciTT51hvpMdOQ

Liz Robbins reports for The Appeal:

One government lawyer who appeared in a crowded Newark, New Jersey, immigration court last month is in a medically induced coma. A New York immigration lawyer and her client are both sick. Immigration judges are being denied sick leave when they use anxiety or safety as reasons. Migrant children are asking their lawyers if they will fall ill if they go to court, and whether they’ll be deported if they don’t show up.

Sickness, panic, and confusion in the midst of a pandemic: These are the acute side effects of immigration courts continuing to operate as the novel coronavirus races across the country. Despite three weeks of intense pleading to close all 69 courts—across a united front of immigration lawyers, the union representing lawyers for ICE, and the immigration judges’ union—more than two-thirds of them remain open. 

The courts that have been closed by the Executive Office for Immigration Review (EOIR), the federal agency that runs them, have often only been shuttered in reaction to a confirmed case of COVID-19 or suspected exposure. The closures are often last-minute, and not clearly communicated, except on Twitter. This week, several immigration legal associations filed two separate federal lawsuits to close the courts because they fear that the government has put their lives in danger. 

“I think it’s about time the American people woke up to the fact that EOIR’s willingness to perpetuate and extend this pandemic will inevitably bring the virus to their hometown,” Rebecca Press, the legal director at UnLocal in New York, said Thursday via email. She contracted coronavirus two weeks ago and at least one of her clients is sick. “The longer courts remain open even for filing, and the longer the courts require attorneys and immigrants to engage in the work of preparing evidence, the more likely it becomes that the virus will be brought right back to another community.”

Government lawyers are affected, too. Fanny Behar-Ostrow, the president of American Federation of Government Employees Local 511, the union representing ICE lawyers, is getting calls at all hours of the day from members who worry they have been exposed to the virus. “They are panicked, frightened, desperate, upset,” she said. 

In addition to the 36,000 adults in ICE detention facilities, there are some 3,500 migrant children in government custody who are affected by the disarray in the courts. In most courts, children must still attend in-person hearings, putting them at exposure risk. In New York City, the current epicenter of the pandemic, lawyers from Kids in Need of Defense (KIND) have not been told whether EOIR will reschedule cases for next week. They are also unclear about whether the minors even need to come to court at a time when state and city officials have issued stay-at-home orders. 

“We are receiving phone calls from children who had their safety net shaken,” said Maria Odom, vice president for legal services for KIND, which is a nonprofit organization contracted to represent unaccompanied minors. “For us serving vulnerable children, there are so many moving pieces and at a time when we should be able to look to the government, they are just contributing to the chaos.”

Lawyers, judges, and advocates wonder: What will it take for EOIR to close courts nationally?

“I hope that it won’t take a death, but I worry that it will,” said Aaron Reichlin-Melnick, an immigration lawyer and policy counsel for the American Immigration Council. His organization is one of the groups behind a lawsuit filed Monday by the National Immigration Project of the National Lawyers Guild.

. . . .

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Read the rest of Liz’s article at the link.

Looks like the dead bodies will have to pile up before the Article IIIs and EOIR will take action. As the rest of us know, but to which U.S District Judges & EOIR appear willfully blind, by the time individuals show symptoms and begin dying, it’s too late to stop the spread. The larger community has already been infected.  

I wonder what it is that gives both EOIR officials and Article III Judges such great confidence that they and their families will escape the consequences of their irresponsible behavior? Maybe, it’s that both EOIR Senior Execs and Article III Judges manage to studiously avoid “direct exposure” to Immigration Courts. “Below their pay grade,” so to speak. 

But, according to folks like Dr. Fauci, who possibly knows even more about infectious diseases than EOIR Director McHenry and the Federal Judges who continue to defer to the irresponsible EOIR “guidance,” nobody will be immune. 

So far, the U.S. has done the worst job of any developed country in the world of “flattening the curve.” Inevitably, we eventually will become the “world leader” in coronavirus deaths. After observing the inept response of EOIR and the failure of the U.S. District Courts to promptly intervene on the side of medical knowledge, common sense, and preserving human lives, I can now see why we are failing as a nation to take the extreme measures necessary for self-preservation.

I would think that as lawyers, judges, and other members of the legal community start dying as a result of EOIR’s policies, that the officials responsible eventually will face legal actions brought by surviving family members and colleagues. Life tenure and the judicial doctrine of “absolute immunity” will protect the feckless Federal Judges from legal accountability. But, it won’t protect them and their reputations from moral accountability and the “judgements of history” which are likely to be harsh and as unforgiving as the Trump Immigration Kakistocracy’s treatment of the most vulnerable among us and their brave lawyers.

Due Process Forever! Trump’s Immigration Kakistocracy & Feckless Federal Courts, Never!

PWS

04-04-20

Related posts:

  1. 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.”
  2. 🏴‍☠️☠️🤮👎🏻IN NYT OP-ED, FORMER TRUMP DOJ ATTORNEY ERICA NEWLAND ADMITS COMPLICITY! — Having Undermined Democratic Institutions, Sold False Narratives To (Too Often Willing) Federal Judges, & Participated In Racist-Inspired “Dred Scottification” (“Dehumanization”) Of the Other Is Actually a BIG Deal! — So Is The Destruction Of Due Process & Fundamental Fairness In The Immigration Courts (Now, “Clown Courts”🤡, or “America’s Star Chambers”☠️) 
  3. 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?” 
  4. 😎👍🏼🥂SHEEEEEEE’S BACK! TAL KOPAN @ SF CHRON RETURNS TO THE “IMMIGRATION BEAT” WITH A POWERFUL IN-DEPTH LOOK AT HOW AMERICA’S MOST DYSFUNCTIONAL “COURT SYSTEM” PREDICTABLY SCREWED UP THE COVID-19 RESPONSE WHILE DEEPENING HUMAN MISERY INFLICTED ON THE “BACKLOGGED” — “’There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,’ said Ashley Tabaddor, president of the National Association of Immigration Judges.”

THE KEY TO “JUDICIAL” ADVANCEMENT IN BARR’S BIASED, NATIVIST POLITICAL REGIME: DENY ALL ASYLUM CASES — Regime Flaunts “Generous” Standard Established By Supremes In Cardoza-Fonseca, Mocks Due Process — A “Kakistocracy In Action!”

Bryan Johnson
Bryan Johnson, Esquire
Immigraton Attorney
New York, NY

https://amjolaw.com/2019/12/24/immigration-judges-asylum-grants-denials-in-fy-2018-2019/

Immigration Judges Asylum Grants & Denials in FY 2018-2019

by Bryan Johnson on December 24, 2019

After over 7 months, EOIR finally provided the Immigration Judges’ asylum grants and denials for FY 2018 and FY 2019, respectively.

To see the same statistics from FY 2014 to FY 2017, see this previous post. (which took less than 1 month for responsive records)

Of note is the asylum grants and denials for the 6 Immigration Judges who AG William Barr hand-picked for the Board of Immigration Appeals in 2019:

2 of the 6 new BIA members–Hunsucker and Cassidy–denied all their asylum cases in FY 2019.

All 6 of the new BIA members had asylum grant rates of below 10% in FY 2019.

Judge Gorman and Goodwin’s asylum grant rates dropped precipitously in FY 2019–from 14% to 3% and 9% to 3 %, respectively.

Immigration :

FY 2018: 210 asylum denials. 3 asylum grants. Grant rate: 1.4%

FY 2019: 166 asylum denials. 9 asylum grants. Grant rate: 5%

Immigration Judge Earle Wilson:

FY 2018: 226 asylum denials. 9 asylum grants. 3.8% grant rate.

FY 2019: 110 denials. 3 asylum grants. 2.6 % grant rate.

Immigration Judge William Cassidy:

FY 2018: 24 asylum denials. 1 asylum grant. 4% grant rate.

Bryan Johnson
Bryan Johnson, Esquire
Immigraton Attorney
New York, NY

FY 2019: 40 asylum denials. 0 asylum grants. 0% grant rate.

Immigration Judge Keith Hunsucker:

FY 2018: 19 asylum denials. 0 asylum grants. 0% grant rate.

FY 2019: 35 asylum denials. 0 asylum grants. 0% grant rate.

Immigration Judge Stephanie Gorman:

FY 2018: 174 asylum denials. 30 asylum grants. 14.7% grant rate.

FY 2019: 281 asylum denials. 11 asylum grants. 3.76% grant rate.

Immigration:

FY 2018: 302 asylum denials. 33 asylum grants. 9.85 % grant rate.

FY 2019: 177 asylum denials. 6 asylum grants. 3.27% grant rate.

For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.

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

Go to the link for complete individual Immigration Judge asylum stats. 

The idea that a “court” system is providing “fair and impartial” decisions to  asylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!

Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.

That suggests that under a fair and impartial judicial system asylum seekers  could and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.

The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states. 

Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremes have taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.

Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again. 

With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?

In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:

“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).

Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”

Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.

Due Process Forever; Corrupt, Complicit Federal Courts Never!

PWS

12-28-19

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. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  3. 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! 
  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.”

“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

ASSOCIATION OF DEPORTATION DEFENSE ATTORNEYS (“ADDA”)

NEW YORK CITY 

MARCH 21, 2019

“THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT”

BY

PAUL WICKHAM SCHMIDT

U.S. IMMIGRATION JUDGE (RETIRED)

Good evening. Thanks so much for coming out tonight. As you know, I’m retired, so I no longer have to give my famous, or infamous, “super-comprehensive disclaimer.” However, I do want to hold my fellow panelists, ADDA, and anybody else of any importance whatsoever “harmless” for my following remarks.

They are solely my views, for which I take full responsibility. That’s right, no party line, no “bureaucratic doublespeak,” no BS. Just the truth, the whole truth, and nothing but the truth, of course as I define truth.

In my brief “5-4-1 program,” I’m going to tell you five horrible problems infecting justice and Due Process in today’s U.S. Immigration Courts; 4 needed reforms, and one solution.

First, the problems, with which I’m sure most of you are painfully familiar. This isn’t a “court system” as any right-thinking person would envision it.

First, unlike any normal court system, the chief prosecutor, the Attorney General selects, directs, and “supervises” the “judges.” Not surprisingly, over the last decade, over 90% of the judges have come directly from government or prosecutorial backgrounds. Well-qualified candidates from private practice, NGOs, and academia have effectively been excluded from participation in today’s immigration judiciary. As part of his “improper influence” over the Immigration Courts, the Attorney General has imposed, over the objection of all judges I’m aware of, demeaning and counterproductive “production quotas” that elevate productivity and expediency over quality, Due Process, and fundamental fairness. 

Second, notwithstanding that, according to the Supreme Court, “everything that makes life worth living” might be at issue in Immigration Court, there is no right to appointed counsel. Therefore, DOJ has taken the absurd position that infants, toddlers, and others with no understanding whatsoever of our complicated legal, asylum, and immigration systems are forced to “represent themselves” in life or death matters against experienced ICE Counsel. The Government disingenuously claims that this complies with Due Process.  

Obviously, these first two factors give the DHS a huge built-in advantage in removal proceedings. But, sometimes that isn’t enough. Somehow, despite the odds being stacked against them, the individual respondent or applicant prevails. That’s when the “third absurdity” comes in to play.

The chief prosecutor, the Attorney General, can reach into the system and change any individual case result that he or she doesn’t like and rewrite the immigration law in DHS’s favor through so-called “certified precedents.” As you know, former Attorney General Sessions, a committed lifelong xenophobe and the self-proclaimed “king of immigration enforcement” exercised this authority often, more than the preceding two Attorneys General over the eight years they served. Sometimes he intervened even before the BIA had a chance to rule on the case or over the joint objections of both the individual and the DHS.

Fourth, this system operates under an incredible 1.1 million case backlog, resulting largely from what we call “Aimless Docket Reshuffling” or “ADR,” by DOJ politicos and their EOIR underlings. This largely self-created backlog continues to grow exponentially, even with a significant increase in judges, without any realistic plan for backlog reduction. In other words, under the “maliciously incompetent” management of this Administration, more judges has meant more backlog. 

Even more disgustingly, in an attempt to cover up their gross incompetence, DOJ and EOIR have attempted to shift the blame to the victims — asylum applicants, migrants, their hard-working often pro bono or low bono lawyers, and the judges themselves. Sophomoric, idiotic non “solutions” like “deportation quotas for judges,” limitations on legitimate continuances, demeaningly stripping judges of the last vestiges of their authority to manage dockets through administrative closing, and mindlessly re-docketing cases that should remain off docket have been imposed on the courts over their objections. 

The result has been an increase in “Aimless Docket Reshuffling” the only thing that DOJ politicos and EOIR bureaucrats seem to excel in. How many of YOU have been victims of ADR?

Fifth, the Administration, DOJ, and EOIR use so-called “civil immigration detention” mostly in absurdly, yet intentionally, out-of-the-way locations, to limit representation, coerce migrants into abandoning claims or appeals, and supposedly deter future migration, even through there is scant evidence that abusive detention actually acts as a deterrent. This is done with little or no effective judicial recourse in too many cases. Indeed a recent TRAC study shows neither rhyme nor reason in custody or bond decisions in Immigration Court, even in those cases where the Immigration Judges at least nominally had jurisdiction to set bond.

Now, I’ve told you how due process and fairness are being mocked by DOJ and EOIR  in a dysfunctional Immigration Court system where judges have effectively been told to act as “DOJ attorneys” carrying out the policies of their “partners” in DHS enforcement, supposedly a separate party to Immigration Court proceedings but now “driving the train.”

Here are the four essential reforms. First, and foremost, a return to the original “Due Process Focus” of the Immigration Courts: through teamwork and innovation be the world’s best courts guaranteeing fairness and Due Process for all. DOJ politicos and EOIR bureaucrats must be removed from their improper influence over this system that has turned it into a tool of DHS enforcement. Everything done by the courts must go through a “Due Process filter.” 

Second, replace the antiquated, inappropriate, bloated, and ineffective “Agency-Style Structure” with a “Court-Style Structure” with sitting judges rather than DOJ politicos and EOIR bureaucrats in charge. Court administration should be decentralized through local Chief Judges, as in other systems, appointed competitively through a broad-based merit system and required to handle a case load. Sitting judges, not bureaucrats, must ultimately be in charge of administrative decisions which must be made in a fair and efficient manner that considers the legitimate needs of DHS enforcement, along with the needs of the other parties coming before the court, and results in a balanced system, rather than one that inevitably favors DHS enforcement over Due Process, quality, and fairness.

Third, create a professional administrative office modeled along the lines of the Administrative Office for U.S. Courts to provide modern, effective judicial support and planning. The highest priorities should be implementing a nationwide e-filing system following nearly two decades of wasted and inept efforts by EOIR to develop one, efforts that have once again been put “on hold” due to mismanagement. A transparent, merit-based hiring system for Immigration Judges, with fair and equal treatment of “non-government” applicants and a system for obtaining public input in the process is also a must. Additionally, the courts must be redesigned with the size of the dockets and public service in mind, rather than mindlessly jamming a 21st century workload into “mini-courts” designed for a long bygone era.   

Fourth, a real Appellate Division that performs as an independent court, must replace the “Falls Church Service Center” a/k/a the BIA. The crippling Ashcroft purge-related bogus “reforms” that turned the BIA into a subservient assembly line must be eradicated. The BIA is a so-called “deliberative body” that is far removed from the public it serves and no longer deliberates in a publicly visible manner. The Appellate Division, not politicos and bureaucrats, must be responsible for promulgating precedents in controversial areas, insuring that the generous standards set forth in Cardoza-Fonseca and Mogharrabi are made realities, not just lip service, and reining in wayward judges, the worst of whom have turned some areas into veritable “asylum and due process free zones” resulting in loss of public confidence as well as denial of Due Process and unfair removals.

Some will say that these reforms only deal with two of the five glaring problems — prosecutorial control and political interference. But, an independent, judge-run, Due Process focused U.S. Immigration Court where judges control their own dockets free from political interference and bureaucratic incompetence will be able to work with both private entities and the DHS to solve the problems leading to lack of representation, “Aimless Docket Reshuffling” and backlog building, and abusive use of immigration detention. 

No, all problems that have been allowed to fester and grow over decades of calculated indifference and active mismanagement won’t be solved “overnight.” Additional legislative fixes might eventually be necessary. But, fixing Due Process is a prerequisite that will enable other problems and issues to be constructively and cooperatively addressed, rather than just being swept under the carpet in typical bureaucratic fashion.

So, now the “One Solution:” Congress must create an independent Article I U.S. Immigration Court. That’s exactly what the ABA Commission on Immigration recommended in a comprehensive study and report released yesterday. 

Thus, the ABA joins the FBA, AILA, and the NAIJ, all organizations to which I belong, in recommending an Article I legislative solution. Significantly, after watching this Administration’s all out assault on Due Process, common sense, truth, the rule of law, human decency, and best practices, the ABA deleted a prior “alternative recommendation” for an independent agency within the Executive Branch. In other words, we now know, beyond any reasonable doubt, that the Executive Branch is both unwilling and unable to run an independent court system in accordance with Due Process. 

I highly recommend that you read the comprehensive ABA report in two volumes: Volume I is an “Executive Summary;” Volume II contains the  “Detailed Findings.” You can find it on the ABA website or on immigrationcourtside.com my blog, which, of course, I also highly recommend.

In closing, we need change and we need it now! Every day in our so-called “Immigration Courts” Due Process is being mocked, fundamental fairness violated, and unjust results are being produced by a disastrously flawed system run by those with no interest in fixing it. Indeed, one of the stunning recommendations of the ABA is that no further judges be added to this totally dysfunctional and out of control system until it is fixed. 

As the great Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.” Tell your elected representatives that you’ve had enough injustice and are sick and tired of being treated as actors in a repertory company specializing in “theater of the absurd” masquerading as a “court system.” Demand Article I now! 

Thanks for listening! Join the New Due Process Army, do great things, and Due Process Forever!

(03-21-19)

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

The horror stories from those actually attempting to practice in the NY Immigration “Courts,” the examples of “Aimless Docket Reshuffling” (“ADR”) from my friend, “Our Gang” colleague, and fellow panelist Retired U.S. Immigration Judge Patty McManus, and pressing need for an independent Article I Court to replace this dishonest and dysfunctional mess described by fellow panelist NY Attorney Jake LaRaus, of Youman, Mateo, & Fasano were most compelling.

Recurring complaints from the audience were the unequal treatment of private attorneys and DHS Counsel, the glaringly inappropriate deference shown by some Immigration Judges to DHS, and the unwillingness of some judges to enforce rules against the DHS. In other words, many of the things that EOIR originally supposed to “cure” are now “back in spades.” Everyone echoed the theme that this is a system in regression, where things that “worked” at one time have now been intentionally disabled by DHS and EOIR.

Independence and competent, professional, apolitical judicial management by judges would go a long way toward reducing today’s
Government-created backlogs. The problem is definitely not, as some would claim, the number of asylum seekers. Indeed legitimate asylum seekers all over this system who have been waiting years for their cases to be heard and who have time and time again been the victims of “ADR” and politicized meddling with the legal standards are among the many victims of this broken system.

We should all be ashamed of this disgraceful perversion of our Constitution and grotesque waste of Government money going on every day. The solution isn’t “rocket science;” it’s Article I. An achievable idea “whose time has come.”

PWS

03-22-19

Related posts:

  1. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  2. 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.”
  3. GONZO’S WORLD: HE FIDDLES AS ROME BURNS! — Threats To Judges, Xenophobia, Racism, Cutting Corners, Dissing Respondents & Their Lawyers, Bogus Numbers, Aimlessly Adding Bodies Fail To Stem Tide Of Backlogged Cases In An Obviously Broken System — When Will Congress &/Or The Article IIIs Do Their Jobs By Restoring Due Process, Impartiality, & Competent, Apolitical Court Management To This Sorry Caricature Of A Court System?
  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”

NO, IT’S NOT “NORMAL DEVIATION:” U.S. IMMIGRATION JUDGE V. STUART COUCH’S RECORD ON CENTRAL AMERICAN WOMEN CLAIMING ASYLUM BASED ON A-R-C-G- SHOWS DEVIANT JUDICIAL BEHAVIOR, BIAS, & INSUFFICIENT CONTROL BY THE BIA – These Are The Glaring Problems Demeaning Due Process In Today’s U.S. Immigration Courts!– Yet, Jeff Sessions Appears Determined To Reinforce Bias and Denial Of Due Process Rather Than Solving The REAL Problems!

FOIA results: evidence of Immigration Judge V. Stuart Couch’s shocking prejudgment of all domestic violence asylum claims

by Bryan Johnson on April 20, 2018

At the bottom, readers will find the all of the decisions of Immigration Judge V. Stuart Couch that resulted in BIA remands for the Fiscal Year of 2017.

Time and time again, IJ Couch’s decisions denying victims of domestic violence asylum contain carbon copy language.

Thus, it is clear that IJ Couch’s has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum. The following is one of his favorite passages to copy and paste.

The respondent’s evidence reflects that [the] physical and verbal abuse of her was related to his violent and jealous nature…The evidence in this case is more consistent with acts of general violence and therefore does not constitute evidence of persecution based on a statutorily protected ground.

Immediately below, I have excerpted key parts of the BIA & IJ Couch decisions. A clear pattern has emerged: IJ Couch does not grant asylum to women who are victims of domestic violence, despite clear instructions to the contrary from the BIA.

 

Pages 31-48: 

Immigration Judge’s decision:

“As noted in the particularity analysis supra, Guatemala has significant and troubling

issues related to domestic violence and crimes against women. However, unlike the married

alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or

inability to seek assistance from authority that distinguishes her from other women in

Guatemalan society. Similar to the particularity analysis supra, the Court finds the

respondent is an unfortunate victim of violence against women like far too many women in

Guatemala, and thereby renders her past harm indistinct by comparison.”

 

BIA’s holding:

The respondent’s testimony reflects that people in the community knew them as a couple and

made comments reflecting their notions that the respondent could not escape the relationship (Tr. 232 at 66).

The respondent also testified that her parents did not help her leave the

relationship because of ingrained views that women are the property of men (Tr. at 33-35).

Under these circumstances, we conclude under the same reasoning as Matter of A-R-C-G-,

supra, that the proffered social group here is “immutable,” “particular” and “socially distinct.”

To the extent that the Immigration Judge determined that the respondent is not a member of this

particular social group, that determination is clearly erroneous. See Matter of A-R-C-G-, supra,

at 3 91 (the question whether a person is a member of a particular social group is a finding of fact

that we review for clear error).”

Pages 65-80:

Immigration Judge’s decision:

“As noted in the particularity analysis supra, El Salvador has significant and troubling

issues related to domestic violence and crimes against women. However, unlike the married

alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or

inability to seek assistance from authority that distinguishes her from other women in

Salvadoran society. Similar to the particularity analysis supra, the Court finds the

respondent is an unfortunate victim of violence against women like far too many women in

El Salvador, and thereby renders her past harm indistinct by comparison.”

BIA decision:

Finally, the record does not support the Immigration Judge’s determination that the past harm

the respondent suffered is “consistent with acts of general violence” which undermines her claim

for asylum (l.J. at 10). Further, even assuming her former partner’s “criminal tendencies and

substance abuse” played a role in his conduct (/d.), the appropriate inquiry is whether the

asserted protected ground was or would be “at least one central reason” for the claimed or feared

harm. See section 208(b)(l)(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341, 349 (BIA

2010)

Pages 81-96: 

Immigration Judge Decision:

The respondent testified that when was drunk, he would physically and

verbally abuse her. She further testified “he was fine” when he was not under the influence

of alcohol. Thus, ‘s abuse appears related to his own criminal tendencies and

substance abuse, rather than conclusive evidence he targeted the respondent on account of

her proposed particular social group. The evidence in this case is more consistent with acts of

general violence and therefore does not constitute evidence of persecution based on a

statutorily protected ground.

BIA decision:

Upon review of the record, we conclude that a remand is necessary for the Immigration

Judge to further assess whether the respondent established that she is a member of a cognizable

particular social group. The Immigration Judge found that the respondent’s case is factually

distinguishable from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because she was not in

a marital relationship with her former partner and did not seek assistance from authorities

(I.J. at 7-9). While relevant, the distinguishing factors identified do not preclude the respondent

from establishing that her proposed particular social group is cognizable under the Act, and we

find that further fact-finding regarding the respondent’s experiences in El Salvador is necessary

to determine whether she satisfied the elements required to establish a valid particular social

group. See Matter of A-R-C-G-, supra, at 393 (stating that “adjudicators must consider a

respondent’s own experiences, as well as more objective evidence, such as background country

information”).

Pages 102-120: 

BIA decision:

We find clear error in the Immigration Judge’s determination that the respondent was not

abused by her former partner on account of her particular social group. See l.J. at 12; 8 C.F.R.

§ 1003.l (d)(3)(i); Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (a persecutor’s actual

motive is a matter of fact to be determined by the Immigration Judge and reviewed by this Board

for clear error). The respondent testified that her former partner told her that a woman is not

more intelligent than he is and that the respondent has no value, comments which indicate that he

harmed her because of her perceived lesser status in the relationship (Tr. at 46).

 

Immigration Judge Decision:

The respondent’s evidence reflects that [the] physical and verbal abuse of her

was related to his violent and jealous nature, sometimes accompanied by his use of alcohol.

Thus, ‘s abuse appears related to his own criminal tendencies or substance abuse,

rather than conclusive evidence he targeted the respondent on account of her proposed

particular social group. The evidence in this case is more consistent with acts of general

violence and therefore does not co nstitute evidence of persecution based on a statutorily

protected ground. Huaman-Cornelio v. BIA, 979 F.2d 9 at l 000; Ruiz v. US. Att’y Gen., 440

F.3d 1247, 1258 (11th Cir. 2006).

Pages 137-155

BIA decision:

We disagree with the Immigration Judge that the respondent’s proposed social group, consisting of Honduran women

who are viewed as property and whose domestic partners refuse to allow them to leave their

relationship lacks the requisite immutability, particularity, and social distinction (l.J. at 7-10).

See Matter of M-E-V-G-, 26 l&N Dec. 227, 236-43 (BIA 2014) (outlining factors to be

considered when discerning whether a social group is cognizable under the Act); Matter of

W-G-R-, 26 I&N Dec. 208, 213-18 (BIA 2014) (same).

Immigration Judge Decision:

The respondent’s evidence reflects that ‘s physical and verbal abuse of her

was related to his violent and jealous nature, heavy use of drugs and alcohol, and association

with drug traffickers. Exhibit 3, tab C at 17-19. Thus, ‘s abuse appears related to his

own criminal tendencies or substance abuse, rather than conclusive evidence he targeted the

respondent on account of her proposed particular social group. The evidence in this case is

more consistent with acts of general violence and therefore does not constitute evidence of

persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at

1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds

that the respondent has not established targeted her due to her particular social group,

which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).

Pages 157-173

 

Immigration Judge decision:

The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse

of her was related to his violent and jealous nature. The respondent testified Mr. ‘

motivation to harm her was anger when she would ask him for money so she could buy food

for her family. She recalled the final argument that led to their separation occurred when the

respondent confronted Mr. regarding his affair with her sister-in-law. Thus, Mr. ‘

abuse of the respondent appears related to his own violent and criminal tendencies, rather than

conclusive evidence he targeted her on account of her membership in a particular social group.

The evidence in this case is more consistent with acts of general violence and therefore does

not constitute evidence of persecution based on a statutorily protected ground.

 

Consistent with its immutability and particularity analysis supra, the Court finds the

respondent is an unfortunate victim of violence against women like far too many women in

Guatemala, and thereby renders her past harm indistinct by comparison. For these reasons, the

Court finds the respondent has not met her burden to show the requisite social distinction

necessary for membership in a particular social group.

 

BIA decision:

The Immigration Judge further concluded that the respondent did not meet the immutability,

particularity and social distinction requirements for a cognizable particular social group (I.J. at 9-

12). We have held that depending on the facts and evidence in an individual case, victims of

domestic violence can establish membership in a cognizable particular social group that forms the

basis of a claim for asylum or withholding of removal. Matter of A-R-C-G-, 26 I&N

Dec. 388 (BIA 2014).

Pages 228-243

Immigration Judge decision:

The respondent’s evidence reflects that Mr. ‘s physical, verbal, and sexual

abuse of her was related to his violent and jealous nature. The respondent testified Mr.

‘s motivation to harm her was anger after she reported his abuse to government

authorities. Thus, Mr. ‘s abuse of the respondent appears related to his own

violent and criminal tendencies, rather than conclusive evidence he targeted her on account of

her membership in a particular social group. The evidence in this case is more consistent with

acts of general violence and therefore does not constitute evidence of persecution based on a

statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at 1000; Quinteros-Mendoza

v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds that the respondent has not

established Mr. targeted her due to her membership in a particular social group,

which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).

BIA decision:

There appears to be no dispute that the verbal, physical and sexual abuse suffered by the

respondent at the hands of her stepfather, which occurred several times per week over a period of

years, rises to the level of past persecution. See, e.g., Barahon v. Holder, 588 F.3d 228, 232,

(4th Cir. 2009) (observing that “[a] key difference between persecution and less-severe

mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents”).

However, the Immigration Judge rejected as invalid the respondent’s proposed particular social

group of”Mexican children who are perceived as property and lack effective familial protection,”

finding that it lacked the requisite immutability, particularity, and social distinction (I.J. at 7-9).

The question whether a group is a “particular social group” within the meaning of the Act is a

question of law that we review de novo. Matter of A-R-C-G-, supra, at 390. On review, we find

that the particular social group posited by the respondent, under the circumstances of this case, is

valid under the reasoning of our recent decisions clarifying the approach to particular social

groups. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N

Dec. 208 (BIA 2014).

Pages 264-283

Immigration Judge decision:

The respondent’s evidence reflects that her former spouse’s physical, sexual, verbal,

and psychological abuse of her was related to his violent and jealous nature, and frequent

intoxication from alcohol. The respondent testified that is an alcoholic whose

motivation to harm her stemmed from his anger, dislike for her, jealous nature, and infidelity

with other women. Exhibit 2, tab C at 12-13. Based upon the respondent’s testimony, it

appears the threats, assault and rape she suffered at the hands of was intended to

intimidate and threaten her to comply his own selfish and criminal demands for sex.

 

Thus, the abuse suffered by the respondent appears related to the violent and criminal

tendencies of her abusive former spouse, rather than conclusive evidence she was targeted on

account of her membership in a particular social group. The evidence in this case is more

consistent with acts of general violence and therefore does not constitute evidence of

persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at

1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court fmds

that the respondent has not established her former spouse targeted her due to her membership

in a particular social group, which is required to prove the requisite nexus for asylum relief.

INA§ 208(b)( l)(B)(i).

BIA decision:

We additionally conclude that the Immigration Judge’s finding that the respondent was able

to leave her ex-husband is clearly erroneous (l.J. at 10-11).

However, the record reflects that the respondent’s ex-husband continued to threaten and physically abuse the respondent after -their separation,

despite her move to a town over 2 hours away from him, and that he raped her in…2014, after their divorce.

Pages 315-334

Immigration Judge decision:

The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse

of her was related to his violent and jealous nature, often fueled by his use of alcohol and

drugs. Exhibit 2, tab H at 1-2. Mr. ‘ motivation to harm her appears to be based upon his

own criminal tendencies and substance abuse, rather than conclusive evidence he targeted

her on account of her membership in a particular social group.

BIA decision:

We also note that even if the evidence and testimony support a finding that the

respondent’s husband has a “violent and jealous nature” (I.J. at 12), this is not clearly separate

from a motive to persecute his wife based on feelings of domination and control, the hallmarks

of domestic violence.

Pages 373-393

Immigration Judge decision:

The respondent’s evidence reflects that her husband’s physical, verbal, and

psychological abuse of her was related to his violent and jealous nature, at times affected by his

use of alcohol. The respondent testimony suggests her husband’s motivation to harm her was

his dislike for her and suspicion she was being unfaithful to him. His motivation also appears

related to the respondent’s desire to leave him because of his infidelity, and his demands for

custody of their son. Based upon the respondent’s testimony, it appears the threats, assaults

and psychological abuse she suffered at the hands of her husband was intended to intimidate

her to obtain some unclear result.

BIA decision:

We conclude, based on the particular facts presented on this record that the respondent

established that she was a member of the particular social group she articulated. We further

conclude that the Immigration Judge erred in concluding that this case is distinguishable from

Matter of A-R-C-G-, supra, based principally on the fact that the respondent was able to separate

and live apart from her husband after he moved out of their home in 2013 (l.J. at I 0-l l ).

The respondent’s ability to live apart from her husband in Honduras is not a distinguishing factor

from the social group rationale articulated in Matter of A-R-C-G-, supra, where the respondent

credibly testified that her husband refused to consent to a divorce and showed up unannounced

and uninvited at her home on several occasions, once touching her in a sexual manner and telling

her that he has a “right” to her as his wife. Additionally, the respondent testified that she was

unable to leave the relationship in Honduras for numerous cultural reasons, including her fear that

would take their son away from her and her belief that she was unable to obtain a divorce

because of ‘s ties to local government officials (l.J. at 3-4; Tr. at 51, 56, 64-73, 99, 105).

See Matter of A-R-C-G-, supra, at 393 (recognizing that “a married woman’s inability to leave the

relationship may be informed by societal expectations about gender and subordination, as well as

legal constraints regarding divorce and separation.”). Further, that domestic violence is prevalent

in Honduras does not mean that the respondent’s proposed particular social group lacks discrete

boundaries, as the Immigration Judge determined (l.J. at 11).

*************************************
EOIR has been known to pass off this type of judicial misconduct as “normal deviations” in judging. But, there is a difference between honest variances in judicial philosophies and approach, which are present to some extent in all diverse judicial systems and might produce differing results, and clearly biased and unfair judging. Judge Couch’s performance clearly fits within the latter.
To state the obvious:
  • All of these incidents were “specifically targeted.” Therefore, Judge Couch’s determination that they were part of “generalized violence” is clearly fiction.
  • Asylum applicants are not required to demonstrate “conclusive evidence” of anything. “Conclusive evidence” is not a legal standard in any part of asylum adjudication.

What should have happened:

  • Judge Couch should have been removed from each of these cases for bias;
  • Like U.S. Courts of Appeals, the BIA should have “outed” Judge Couch, by name, in published opinions to give both applicants and the Fourth Circuit Court of Appeals notice of his problematic adjudication of asylum cases.
  • If Judge Couch continued his biased and unfair judging he should have been 1) ordered by the BIA not to hear any asylum cases involving women from the Northern Triangle, and 2) told that if his performance in asylum cases did not improve, he would be  referred to the EOIR disciplinary system for Immigration Judges based on actual bias against asylum applicants.

There is simply no room in a true Due Process system, particularly one where many respondents are unrepresented, for a biased, anti-asylum judge like Judge Couch. Is this “being the world’s best administrative tribunals guaranteeing fairness and Due Process for all?” No Way! Jeff Sessions, who often enunciates biased, anti-asylum positions, is part of the problem, not the solution! Due Process can’t be restored to the U.S. Immigration court system until Jeff Sessions and the USDOJ are removed from the process.

We need an independent judiciary capable of telling judges who perform like Judge Couch to correct their behavior immediately — in other words, “shape up or ship out.”

PWS

05-09-18

 

Related posts:

  1. 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!
  2. 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.”
  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. 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!

THE GIBSON REPORT – 03-12-18

THE GIBSON REPORT – 03

Compiled by Elizabeth Gibson, Esq., NY Legal Assistance Group

 

HEADLINES:

TOP UPDATES

 

EOIR Updates

  • The EOIR hotline appears to no longer list the IJ. To verify the IJ, you will need to call the court.
  • Lora was vacatedon Monday. No more Lora bond hearings for now, although the bond issue is still being litigated.
  • OCC: Please be advised that the San Juan Office of the Chief Counsel will be handling cases formerly assigned to IJ Margaret McManus and IJ Elizabeth Lamb during March and April.  Please note that documents for these hearings must be served via eService to ensure timely receipt by the Assistant Chief Counsel in San Juan.  In the alternative, documents may be sent via Express Mail directly to the San Juan office at the following address. [People have reported already having McManus and Lamb cases by video conference to San Juan. But double check because at least one person has said their case for this month was rescheduled instead of being sent to San Juan.]

 

Advocates Say Sessions’ Decision to Toss Rule on Asylum Hearings Endangers Thousands

WaPo: The decision this week vacates a 2014 ruling by the Justice Department’s Board of Immigration Appeals. Now, immigration judges can reject asylum petitions without a full hearing if, upon initial review, they appear to be fraudulent or unlikely to succeed. [This is particularly concerning in light of Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), which requires the clear articulation of a social group. Advocates worry that the two decisions could be used together to say that someone is not entitled to an individual hearing if they do not articulate a PSG at a master calendar hearing.]

 

AG Refers Decision to Himself and Issues Amicus Invitation on “Particular Social Group” and Victims of Private Criminal Activity

The Attorney General referred Matter of A-B- 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. AILA Doc. No. 18030801.

  • From Respondent’s Counsel: It’s an ARCG case where my client was denied by IJ VSC in Charlotte. BIA reversed on every element including adverse credibility in December 2016. IJ VSC recertified it in August 2017 to the BIA saying that Velazquez v Sessions (4th circuit) basically meant that ARCG was no longer applicable.

 

US in Talks with Mexico on Safe Third Country Agreement

Politico: Homeland Security Department officials hope to discuss an asylum deal with Mexican officials, despite frayed diplomatic relations over border security and trade, a department official tells Morning Shift. The Trump administration aims to strike a “safe third country” pact with Mexico that would allow the United States to return non-Mexican asylum seekers to Mexico if they passed through that country en route to the southwest border.

 

How the Supreme Court is Expanding the Immigrant Detention System

Atlantic: During FY 2018, ICE reports that its average daily population has been 40,726. Before the year began, ICE budget documents had projected a detention population of 51,379. That staggering expansion—65 percent in a single year—would have vaulted ERO to a spot somewhere around No. 7. Its population would rank in size behind only the federal prison system and those of California, Florida, Georgia, New York, and Texas.

 

DOJ Files Lawsuit Challenging Three California Laws Relating to Immigration Enforcement

The Department of Justice filed a lawsuit challenging three California laws relating to immigration enforcement as violating the Supremacy Clause of the Constitution. (United States v. California, 3/6/18)

AILA Doc. No. 18030700

 

Extension of the Designation of Syria for Temporary Protected Status

DHS: announces that the Secretary of Homeland Security (Secretary) is extending the designation of Syria for Temporary Protected Status (TPS) for 18 months, from April 1, 2018, through September 30, 2019. The extension allows currently eligible TPS beneficiaries to retain TPS through September 30, 2019, so long as they otherwise continue to meet the eligibility requirements for TPS. Re-Registration Period Opens for Syrians with Temporary Protected Status.

 

Article: On DACA’s Termination Date, Path Forward Remains Unclear

Bloomberg Law reports on court decisions that have temporarily allowed the DACA program to continue beyond the March 5 end date set by President Trump and where the Dream Act stands in Congress, with insights from AILA Director of Government Relations Greg Chen. AILA Doc. No. 18030601

 

Immigration Attorney Sentenced to More Than Six Years in Prison for Fraud Scheme and Identity Theft in Relation to Visa Applications

USCIS: An Indianapolis, Indiana immigration attorney was sentenced today to 75 months in prison for defrauding the U.S. Citizenship and Immigration Services (USCIS) and more than 250 of his clients by filing fraudulent visa applications and reaping approximately $750,000 in illegitimate fees.

 

Baltimore approves spending of $200,000 to pay lawyers to help immigrants fight deportations

Half of the $200,000 is funded by a grant from the Vera Institute of Justice, a New York nonprofit. The other half will come from the city’s budget.

 

Suffolk Sheriff Will Continue Honoring Cooperation With ICE

NYIC: Suffolk County’s new sheriff, Errol Toulon Jr., replaced Vincent DeMarco in January. De Marco, a staunchly conservative supporter of President Trump’s immigration policies, had established a policy of tight cooperation with ICE.

 

LITIGATION/CASELAW/RULES/MEMOS

 

AG Refers and Vacates Decision on Entitlement to Full Asylum Hearing

Attorney General Jeff Sessions referred the BIA decision in Matter of E-F-H-L- to himself for review and vacated that decision, directing that the matter be recalendared and restored to the active docket. Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). AILA Doc. No. 18030536.

 

CA1 Finds Evidence Did Not Compel Conclusion That Violence Against Petitioner’s Family Members Was Due to Family Membership

The court denied the petition for review of the denial of the petitioner’s asylum application, finding that the evidence did not compel the conclusion that a series of violent incidents against her family members was on account of their family membership. (Sosa-Perez v. Sessions, 2/28/18) AILA Doc. No. 18030630

 

CA2 Says New CIMT Interpretation for Theft Crimes Is NOT Retroactive

Post Diaz-Lizarraga, the BIA now deems theft crimes to be CIMTs if the intended deprivation was permanent OR where property rights are substantially eroded.  [T]he Second Circuit reversed the BIA’s retroactive application of the new rule, reasoning that criminal defendant’s of that time would have relied on existing precedent regarding immigration consequences of convictions when entering into pleas.

 

CA2 Finds There Is No Duress Exception to the “Material Support Bar”

The court joined several other circuits in holding that the “material support bar” in INA §212(a)(3)(B)(iv)(VI) does not except individuals who acted under duress. (Hernandez v. Sessions, 2/28/18) AILA Doc. No. 18030633

 

CA2 Holds That BIA’s Interpretation of REAL ID Act Was Entitled to Chevron Deference

The court held that the BIA’s interpretation of the REAL ID Act as not requiring an IJ to give a petitioner an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required was entitled to Chevron deference. (Sun v. Sessions, 2/23/18) AILA Doc. No. 18030635

 

CA3 Holds That Unlawful Contact with a Minor Under 18 Pa. Cons. Stat. §6318(a)(5) is a Crime of Child Abuse

The court denied the petition for review, holding that a conviction for unlawful contact with a minor under 18 Pennsylvania Consolidated Statutes §6318(a)(5) is a crime of child abuse under INA §237(a)(2)(E)(i). (Mondragon-Gonzalez v. Attorney General, 1/29/18) AILA Doc. No. 18030636

 

CA5 Remands to District Court to Determine Whether Minor in ORR Custody Wishes to Pursue an Abortion

In a case involving whether ORR can refuse an unaccompanied minor access to Texas’s judicial bypass regime, the court remanded the case to the federal district court to conduct a hearing to determine whether the unaccompanied minor presently wishes to pursue an abortion. (Doe v. ORR, 3/1/18) AILA Doc. No. 18030637

 

CA5 Dismisses Equitable Tolling Case for Lack of Jurisdiction

Where the petitioner filed a statutorily untimely motion to reopen but argued she was entitled to equitable tolling, the court dismissed the petition for lack of jurisdiction, finding that whether equitable tolling applied was a question of fact, not of law. (Penalva v. Sessions, 2/28/18) AILA Doc. No. 18030701

 

CA9 Finds Violation of California Penal Code §286(i) to Be an Aggravated Felony

The court found that a violation of California Penal Code §286(i) for sodomy where the victim cannot consent qualifies as a rape offense under INA §101(a)(43)(A), and that the plaintiff’s conviction under that statute was therefore an aggravated felony. (Elmakhzoumi v. Sessions, 3/1/18) AILA Doc. No. 18030738

 

Maryland District Court Declines to Enjoin Rescission of DACA Program

The U.S. District Court for the District of Maryland issued an opinion declining to enjoin the government’s rescission of the DACA program but enjoining the government from using information provided through the DACA program for enforcement purposes. (Casa de Maryland v. DHS, 3/5/18) AILA Doc. No. 18030734

 

Civil Rights and Civil Liberties Organizations File FOIA Seeking Information on Extreme Vetting Policies

On 3/1/18, Muslim Advocates, along with a coalition of 29 civil rights and civil liberties organizations, filed a FOIA request seeking information from DHS, OIG, CRCL, and ICE concerning their extreme vetting policies and procedures. AILA Doc. No. 18030730

 

Muslim Advocates and the Center for Constitutional Rights File FOIA on the Travel Ban Waiver Process

On 1/23/18, Muslim Advocates and the Center for Constitutional Rights filed a FOIA request seeking information from DHS, DOS, CBP, and USCIS regarding the waiver process provided for in Presidential Proclamation 9645 (Travel Ban 3.0). AILA Doc. No. 18030732

 

ACTIONS

 

 

 

RESOURCES

 

 

EVENTS

 

 

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As always, thanks Elizabeth. You’re amazing!

PWS

03-13-18

 

 

Related posts:

  1. THE GIBSON REPORT FOR 12-18-17 – RECOGNIZING: The Absolutely Amazing ELIZABETH GIBSON Of The NY Legal Assistance Group and ALL She Does For Fairness, Justice, & Due Process! — MAKING A DIFFERENCE IN THE LIVES OF OUR MOST VULNERABLE!
  2. KEEP UP TO DATE WITH ALL OF THE REGIME’S LATEST ANTI-IMMIGRANT SCHEMES, GIMMICKS, & SHENANIGANS – THE GIBSON REPORT – 01-06-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  3. THE GIBSON REPORT — 10-05-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Federal Judge Rules Trump Not A Monarch; More Intentional Cruelty, Lies, & Threats Of Politically-Inspired Racist Attacks On Ethnic Communities From DHS; Trump Regime Dumps On Refugees & Commies; Cert. Granted In Credibility Case Apparently Seeking To Screw Refugees At Request Of SG; & Other “Interesting & Sometimes Disturbing Stuff”⚖️
  4. THE GIBSON REPORT — 11-23-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal,Assistance Group —  Court Losses, Rebukes Pile Up For Loser Scofflaw White Nationalist Regime — But Cruelty, Stupidity, & Sabotage Of Democracy Still On The Agenda For Defeated Kakistocracy!🏴‍☠️☠️⚰️👎🏻

PRO BONO LAWYERS SAY CHANGES IN EOIR POLICIES IN NEW YORK SHAFT CHILDREN NEEDING REPRESENTATION IN COURT!

NYC’s Immigration Court Erodes Accommodations for Children Without Attorneys

David Brand reports for CityLife.org;

. . . .

Thousands of other undocumented immigrant children never get a lawyer and continue to experience that fear and uncertainty during deportation proceedings. Others choose to avoid court, exposing themselves to in-absentia removal orders.

Over the past few months, finding legal representation has become even more challenging for immigrant children in New York City because Manhattan’s federal immigration court has eroded several of the practices and provisions designed to help children connect with nonprofit and pro bono attorneys inside the courthouse, say four lawyers who direct programs that connect with unrepresented children at 26 Federal Plaza.

Legal Aid Society’s Immigrant Youth Project supervising attorney Beth Krause says the changes have led to fewer children getting legal representation and will likely doom more children to deportation — even if their situations or experiences merit asylum, protected status or visa eligibility.

“What this means is there are many, many children who are not getting consultation with a lawyer and many kids who do have relief available but, if they don’t talk to a lawyer, might not know it and give up,” Krause says.

Though children have no legal right to government-funded counsel in immigration court — a reality reaffirmed by the U.S. Ninth Circuit Court of Appeals in late-January — New York City’s court used to provide some accommodations to help children find attorneys. The court consolidated the juvenile docket on specific days and assigned the cases to specific judges with experience presiding over children’s proceedings.

The court also shared docket information with nonprofits like New York Law School’s Safe Passage Project, Catholic Charities, Legal Aid, The Door and other Immigrant Child Advocates Relief Effort (ICARE) participants and permitted the organizations to meet with children in empty courtrooms or other spaces.

These provisions enabled children to access free legal counsel because the organizations knew how many unrepresented children would appear at court and when their case would be called. The accommodations also facilitated more efficient courtrooms — especially on days when a judge’s docket includes dozens of cases — because lawyers could prepare their young clients for court and guide them through proceedings.

Gradually, however, the court has scattered children’s proceedings throughout the month and assigned the cases to various judges who are at times unfamiliar with child-friendly practices or special legal provisions granted to children, such as longer filing deadlines, say Krause, Safe Passage Project Director Lenni Benson, Catholic Charities Supervising Attorney Jodi Ziesemer and The Door’s Director of Legal Services Eve Stotland.

The court has even prevented the nonprofit organizations from screening children inside empty courtrooms or other spaces throughout the building, the four attorneys say.

. . . .

 

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

Read the complete article at the link.

This is the “New EOIR,” where “customer service” has become a dirty word!  Anti-Due Process, Anti-Child, Anti-Lawyer, Anti-Asylum, ungrateful to those who are trying against all odds to provide fair hearings to those caught up in our totally screwed up and grotesquely mal-administered Immigration Courts.

EOIR has basically come “full circle.” Unfortunately, it now replicates some of the worst features of the “Legacy INS’s” administration of the courts that led to the creation of EOIR in the first place.

One long-time pro bono stalwart told me she actually had tears of rage in her eyes over the disrespectful treatment she and her colleagues received while trying to provide pro bono assistance at one local Immigration Court. “I’ve been doing this for years. It’s in addition to my other two full-time jobs. It costs me money to provide pro bono. Now this — no cooperation, no appreciation. I’m trying to help EOIR avoid gross injustices. And, they just put BS bureaucratic roadblocks in the way. I’m so angry!”

We need an independent, Due-Process-focused Article I U.S. Immigration Court!

PWS

01-21-18

 

 

 

Related posts:

  1. 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!
  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. 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!
  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”

THE GIBSON REPORT — 01-02-18

THE GIBSON REPORT, 01-02-18

HEADLINES:

TOP UPDATES

 

NY Governor pardons 18 immigrants in face of Trump immigration crackdown

ImmProf: Following the lead of California Governor Jerry Brown, New York Governor Andrew Cuomo pardoned more than a dozen immigrants who faced deportation over prior convictions who now have a chance of staying in the United States.

 

California becomes a sanctuary state and legalizes marijuana, but advocates remind noncitizens that there are still immigration consequences for marijuana use

Press-Enterprise: Undocumented immigrants can be deported for marijuana consumption in certain circumstances and may risk not being admitted back into the United States if they leave.

 

NJ immigration under Murphy: Expanding in-state financial aid

App: The governor-elect  supports expanding in-state financial aid to young unauthorized immigrants living in New Jersey.

 

USCIS Provides Updated Guidance and FAQs on Rejected DACA Requests

AILA: USCIS provided guidance and FAQs on DACA requests delivered by the filing deadline but not officially “ received” by USCIS. USCIS contacted individuals and they have 33 days from the date of the letter to resubmit the request. USCIS included information on other types of mail issues as well.

 

The ‘Double Punishment’ For Black Undocumented Immigrants

Atlantic: Although only 7 percent of non-citizens in the U.S. are black, they make up 20 percent of those facing deportation on criminal grounds.

 

Trump to Dems: No DACA deal without the border wall

Politico: Democrats seeking a deal to protect so-called Dreamers from deportation must be prepared to agree to a package that includes several White House priorities, including a border wall and reforms to the U.S. immigration system, President Donald Trump wrote on Twitter Friday morning…House Minority Leader Nancy Pelosi (D-Calif.) and her Senate counterpart, Minority Leader Chuck Schumer (D-N.Y.), are set to meet [] Wednesday with House Speaker Paul Ryan (R-Wis.) and Senate Majority Leader Mitch McConnell (R-Ky.) at the White House, where the congressional leaders are expected to work on a DACA deal as part of negotiations to avert a government shutdown.

 

More immigration actions planned in 2018 at job sites, high-ranking enforcement official says

The Commercial Appeal (note: this article is focused on Tennessee but generally relevant): Workplace immigration investigations will likely focus on “critical infrastructure,” such as airports, defense contractors, food distribution and other businesses that have an impact on the general safety and welfare of the community

 

Beginning on January 15, 2018, OCC-NYC will only accept joint motion to reopen (JMTR) requests electronically through eService portal. 

OCC: Effective January 15, 2018, the OCC-NYC will move to the next phase of electronic service.  Please note that on January 15, 2018, we will be disabling our JMTR email boxes in favor of service to our eService online portal.  JMTR requests sent to the following email boxes on or after that date will be deemed improperly served:  NONDETAINED.NYC_JMTR@ice.dhs.gov,DETAINED.NYC_JMTR@ice.dhs.gov.

 

RESOURCES

 

 

EVENTS

 

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PWS

01-04-18

Related posts:

  1. THE GIBSON REPORT — 12-11-17 
  2. ⭐️⭐️⭐️⭐️⭐️⚖️🗽🇺🇸FORMER DEPUTY AG DON AYER, JUDGE MIMI TSANKOV AMONG “HEADLINERS” AT TIMELY UPCOMING NY CITY BAR ASSN. EVENT: “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” — Register Now, Right Here!
  3. 🧑🏽‍⚖️⚖️🗽🇺🇸WHO’S JUDGE IS IT ANYWAY? — The Crisis Of Independence In Our Immigration Courts! — Coming April 7, 2021! — Sponsored By The HNBA! — Don’t Miss It!
  4. THE GIBSON REPORT — 02-14-21💝 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Mandatory E-Filing @ EOIR Starts & Lots Of Other “Interesting Stuff!”  — CMS Study Shows How Garland Is Ignoring the “Low Hanging Fruit” On His Out of Control EOIR Backlog! ☹️

CHIEF IMMIGRATION JUDGE MARYBETH KELLER’S MEMO DOWNGRADING PROTECTIONS FOR CHILDREN IN IMMIGRATON COURT DRAWS ETHICS COMPLAINT

COMPLAINT AGAINST CHIEF IMMIGRATION JUDGE FOR ORDERING JUDGES TO IGNORE FEDERAL LAWS PROTECTING CHILDREN

by Bryan Johnson on December 22, 2017

The following complaint was filed today against Chief Immigration Judge, MaryBeth Keller for ordering immigration judges to disregard special legal protections for unaccompanied children as mandated by 8 USC 1232(e):

Download [3.33 MB]

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You can download the complaint at the link.

Gotta believe that this one will get a quick coat of whitewash from EOIR, particularly since Chief Judge Keller’s “rise through the ranks” of the HQ bureaucracy was fueled, in part, by her role as the Assistant Chief Judge in charge of Judicial Conduct.

I always liked Chief Judge Keller, who once worked for me at the BIA. She’s a fundamentally decent person working for a bad guy (Jeff Sessions) and just trying to hang onto her job and limit the damage as best she can until she’s eligible to retire. I doubt that the “offending (and offensive) memo” was her idea. She was undoubtedly ordered to write it by Acting Director McHenry and his “handlers” at the DOJ. And, it certainly echoes Sessions’s clear bias against all immigrants, particularly young people of color. Remember the completely uncalled for “smear job” he did on “Dreamers” while gleefully announcing their planned demise as if it were some great achievement, rather than something of which we all should be ashamed?

Dreamers make our country better; Gonzo Apocalyto, not so much.

PWS

12-23-17

Related posts:

  1. 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!
  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. 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?” 
  4. 👹🎃HALLOWEEN HORROR 🏴‍☠️☠️🤮⚰️👎🏻REICHSREPORT: GRUPPENFUHRER MILLER REVEALS “REICHSPLAN” FOR EXTERMINATION OF IMMIGRATION, ASYLUM, REFUGE BY EXECUTIVE DECREE!  — “The Final Solution??”  — Parents, Protect Your Kids, Families, & Your Country From This Grotesque Un-American Monster!

THE GIBSON REPORT FOR 12-18-17 – RECOGNIZING: The Absolutely Amazing ELIZABETH GIBSON Of The NY Legal Assistance Group and ALL She Does For Fairness, Justice, & Due Process! — MAKING A DIFFERENCE IN THE LIVES OF OUR MOST VULNERABLE!

THE GIBSON REPORT — 12-18-17

TOP UPDATES

 

Today Is International Migrants’ Day: 2017 Theme: Safe Migration in a World on the Move

o   Books: Give the Gift of Literary Empathy – Immigration Holiday Book Guide (full disclosure, I wrote this one)

o   Podcasts: Immigration and migration stories

o   Film: IOM and UNICEF Film Festival in New York today

 

White House to push merit-based immigration in new campaign

 

TPS for Nicaragua and Honduras

 

LexisNexis’s Role in ICE Surveillance and Librarian Ethics

LLB: As library organizations discuss ways library professionals can advocate for intellectual freedom, democracy, and equality, we should begin by grappling with how to react when our major database providers engage in massive surveillance projects with the government.

 

Federal Investigation Finds ‘Significant Issues’ At Immigrant Detention Centers

NPR: Immigrants detained at four large centers used by Immigration and Customs Enforcement are subject to inhumane treatment, given insufficient hygiene supplies and medical care, and provided potentially unsafe food, according to a federal report.

 

On the ground with ICE agents enforcing Trump’s immigration crackdown

ImmProf: Since President Trump took office, immigration arrests are up 42 percent. ICE estimates, nationwide, they make 400 arrests a day. ICE has arrested 37,000 undocumented immigrants without criminal records. That’s a 145 percent increase over fiscal year 2016.

 

Complaint Documents 15 Cases of Family Separation at the Border

AIC: Advocates filed a complaint with the Office for Civil Rights and Civil Liberties (CRCL) and Office of the Inspector General (OIG) on behalf of numerous families – most, if not all, who fled to the United States seeking humanitarian relief – who were separated at the U.S.-Mexico border.

 

DHS Overestimates Visa Overstays for 2016; Overstay Population Growth Near Zero During the Year

CMS: This paper compares US Department of Homeland Security (DHS) estimates for visa overstays in fiscal year 2016 with estimates from the Center for Migration Studies (CMS).

 

An HIV-Positive Gay Asylum Seeker Staged a 7-Day Hunger Strike in an ICE Detention Facility

The Nation: Protesting prolonged detention, substandard medical care, and parole denial, Jesus Rodriguez Mendoza may soon stop eating again.

 

Bronx man allegedly poses as Hempstead attorney, steals more than $30,000 from immigrant clients

PIX: Efrain Vargas told clients in Hempstead he would obtain immigration and residency papers for them, but never delivered on his promises, officials said. He was arrested and arraigned Wednesday for allegedly scamming immigrants.

 

OCC-NYC Filing Window Hours on 12/20 and 12/22

OCC: Please be advised that our reception area and filing window at 26 Federal Plaza and 201 Varick Street will be closed from 12:00-1:30pm on Wednesday, December 20th.  Please be further advised that our reception area and filing window will close at 3pm on Friday, December 22nd.

 

ACTIONS

 

  • #GiveMateoBack: Amnesty International USA is also working to hold ICE accountable for family separation. You can find steps for a social media/letter writing campaign here.

 

RESOURCES

 

  • USCIS Provides Training Material on the International Religious Freedom Act and Religious Persecution
  • USCIS Provides Training Material on TRIG
  • Manhattan DA – Supp Bs – raej@dany.nyc.gov: December 2017 will be my last month at the Manhattan District Attorney’s Office. If you have pending supplement B certification request that has  yet to be submitted to my office, please email the requests to me by Friday, December 22nd. We will make every effort to review each certification request and provide a response before the New Year. After December 22nd, please send all U-visa supplement B requests to Mayerling Rivera atRIVERAM@dany.nyc.gov. As with all past requests, please be sure to provide a waiver signed by your client (include your client’s date of birth and any aliases)… The body of the email should include the case indictment or docket number, name of the defendant, and/ or the case arrest number. Please keep in mind that we cannot locate cases in our system records using an NYPD complaint number.
  • Give the Gift of Literary Empathy – Immigration Holiday Book Guide(full disclosure, I wrote this one)

·         Podcasts: Immigration and migration stories

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I’m a huge “Elizabeth Gibson Fan.” I’ve known Beth since she was a star student at Georgetown Law (one of the “Best Ever” of my “Refugee Law & Policy” — “RLP” — students), a terrific Legal Intern at the Arlington Immigration Court, and a spectacular Judicial Lw Clerk/Attorney Advisor at the New York Immigration Court before she was selected for the Immigrant Justice Corps (“IJC”) assigned to the New York Legal Assistance Group (“NYLAG”).

For those who don’t know, only the “best and brightest” with an overriding concern for social justice get into the IJC. Beth would excel at ANY legal job in America — “Nonprofit, “Big Law,” judging, teaching, writing, reporting, managing.

I’m inspired that with all these avenues open to her, Beth has chosen to use her “complete package” of talents to make the justice system work for the most vulnerable among us — those who have legal rights that are largely the same as all of us, but who are “bullied” and “intentionally mistreated” by our legal system (and our current Administration, in particular) in an attempt to prevent them from using and realizing those rights.

In  addition to being a weekly contributor to immigrationcourtside.com, Beth has acted as a “clearinghouse” for the vast amount of information and assistance available to the legal community involved in defending the rights of migrants. She has patiently taken many referrals of reporters and lawyers. She also has found time to write articles of her own, in addition to, of course, her main mission of helping her clients.

Beth, thanks for all you do for our country, our world, the cause of justice, and making “Due Process” under our Constitution a reality (at least for some) rather than an “empty promise!” You are truly what serving in the “New Due Process Army” is all about and why, in the end, the forces of darkness threatening our country and democracy will not prevail!

PWS

12-18-17

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. 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!
  3. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  4. 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!

THE GIBSON REPORT — 12-11-17 

THE GIBSON REPORT 12-12-17

HERE ARE THE HEADLINES:

“TOP UPDATES

 

Concerning I-765 form and instructions, comments open until Dec. 12

Three worrisome changes caught by KIND:

  • requirement to provide a passport or US or foreign government-issued ID applies to those with asylum-pending or withholding granted (as well as SIJs, and T & U nonimmigrants); this is a major break with past practice, and huge obstacle.
  • if asylum is pending, requires arrest and conviction records. The EAD will be denied if you have been convicted of an aggravated felony, and USCIS will evaluate the arrest records to determine that. This is a procedural due process problem in that this is an ultimate question to be determined by the adjudicator of the asylum application.
  • option of using a “Safe Mailing Address” is buried deep in the instructions where it’s easy to miss, and limits it to VAWA, T and U applicants.

 

Update on Joint Motions

From the OCC duty attorney via Make the Road:

  • she generally reviews all proposed JMTRs, and makes a decision by written letter as to whether to join, decline, or request more information
  • she has a significant backlog such that she is still reviewing proposed JMTRs filed in November of 2016… (Note from EG: when I spoke with her in April of 2017, she was doing September of 2016)
  • without an “exceptional or unusual” circumstance such as urgent need to travel because of death or illness, she wouldn’t prioritize reviewing one sooner
  • if I am concerned about the wait, she encourages me to “seek prosecutorial discretion from ERO through a stay or deferred action.”

 

Sessions outlines principles to reduce immigration case backlog

DOJ: “[DOJ aims] to reduce the so-called “backlog” by realigning the agency towards completing cases, increasing both productivity and capacity, and changing policies that lead to inefficiencies and delay justice.”

 

PRUCOL for Asylum Applicants (see attached)

Effective immediately, PRUCOL status will be granted to Asylum applicants with EAD cards for the purpose of Cash Assistance eligibility, which in turn has implications for rental assistance.

 

New Federal Lawsuit on Behalf of Lawful Permanent Residents Denied the Opportunity to Become U.S. Citizens Because of Disabilities

Legal Services NYC’s Bronx program, Immigrant Justice Corps, Alaska Immigration Justice Project, and WilmerHale filed a federal lawsuit on behalf of nine LPRs from New York, Massachusetts, and Alaska, who are statutorily eligible to apply for citizenship, but who have mental health or cognitive impairments which make it impossible for them to learn English and pass the English and civics tests ordinarily required to become U.S. citizens. The lawsuit was filed against the DHS and USCIS.

 

NIJC and Immigrant Rights Advocates Demand Civil Rights Investigation into ICE Raids that Targeted Sponsors of Unaccompanied Children

Eight immigrant rights organizations filed a complaint with DHS OIG and Office of Civil Rights and Civil Liberties on behalf of some of the 400 people detained in raids during the summer of 2017 that used unaccompanied children to identify and target their relatives living in the United States. AILA Doc. No. 17120762

 

DOS Updates Guidance Due To New Court Orders on Presidential Proclamation

DOS provided updated guidance due to the 12/4/17 Supreme Court orders that granted the government’s motions for emergency stays of preliminary injunctions. Per the orders, restrictions will be implemented fully, in accordance with the Presidential Proclamation, around the world, beginning 12/8/17. AILA Doc. No. 17120830

 

CBP Muster: Policy Regarding Border Search of Information

CBP created a muster regarding border searches of electronic devices. Notes such searches may include searches of the information physically present on the device when presented for inspection or during its detention. Obtained by a FOIA request by the Electronic Frontier Foundation. AILA Doc. No. 17120636.

 

DHS Provides ICE and CBP End of FY2017 Statistics

DHS released a summary of its end-of-the-year immigration enforcement numbers. In FY2017, CBP reported 310,531 apprehensions nationwide, 303,916 of which were along the Southwest border. In FY2017, ICE conducted 143,470 arrests and 226,119 removals. AILA Doc. No. 17120534

 

EOIR Final Rule on Denials of Suspension of Deportation and Cancellation of Removal

EOIR final rule adopting without change the rule proposed at 81 FR 86291 on 11/30/16. The final rule allows IJs and the BIA to issue final denials of suspension of deportation and cancellation of removal applications regardless of whether the annual cap has been reached. (82 FR 57336, 12/5/17) AILA Doc. No. 17120530

 

 

ACTIONS

 

  • Sign petition to Judge DiFiore – on keeping ICE out of NY courts.
  • IDP Push on State Pardons: We have reason to think that the Governor’s office may be more likely to grant pending pardon applications (and more in the future) if we package together compelling cases. If you have pardon applications currently pending (or that could be submitted soon) where someone would receive some kind of immigration benefit and would like to be included in this joint advocacy effort, please email awellek@immigrantdefenseproject.org by 12/13: 1-2 paragraphs about the applicant. It should cover who the applicant is, their equities, what their convictions are, and the current posture of their immigration case and how a pardon will help.
  • NYIC and CUNY survey of gang-related issues – deadline 12/15/17

 

RESOURCES

 

·         USCIS Provides FAQs on Rejected DACA Requests”

 

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Thanks, Elizabeth, for keeping the members of the “New Due Process Army” informed!

You’re the greatest!

 

PWS

12-12-17

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!
  2. THE GIBSON REPORT FOR 12-18-17 – RECOGNIZING: The Absolutely Amazing ELIZABETH GIBSON Of The NY Legal Assistance Group and ALL She Does For Fairness, Justice, & Due Process! — MAKING A DIFFERENCE IN THE LIVES OF OUR MOST VULNERABLE!
  3. HAPPY NEW YEAR FROM COURTSIDE! — I Take A Look Forward @ 2019’s Big Immigration Stories
  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! 

BIA SAYS CATEGORICAL APPROACH INAPPLICABLE TO VIOLATION OF A PROTECTIVE ORDER — MATTER OF OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

3909

Matter of OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

BIA HEADNOTE:

“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, MALPHRUS, GREER

OPINION BY: JUDGE PAULEY

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

COMMON THREAD: The Respondent loses, even though he prevailed before the Immigration Judge.

PWS

11-18-17

 

 

Related posts:

  1. “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
  2. ICE’S “IN YOUR FACE” COURTHOUSE ARREST POLICY ERODES OUR CONSTITUTOINAL SYSTEM OF JUSTICE!
  3. ATTN “COURTSIDERS” – HEAR ME “LIVE” ON RADIO IN RICHMOND, VA, THE INTERNET, AND FACEBOOK TOMORROW, FRIDAY, DEC. 8, 2017!
  4. TAL @ CNN: TRUMP’S “GONZO” IMMIGRATION ENFORCEMENT POLICIES LIKELY TO FAIL AND ACTUALLY AGGRAVATE FORCES DRIVING UNDOCUMENTED MIGRATION!

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

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

Patrice writes:

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

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

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

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

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

Against a real attorney.

Unless they’re chicken.”

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

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

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

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

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

PWS

11-13-17

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!
  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. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  4. 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!

NBC4 NY: FRAUD, WASTE, & ABUSE AT USDOJ — “ADR” EXPOSED! — TRUMP ADMINISTRATION KNOWINGLY RAN UP U.S. IMMIGRATION COURT BACKLOGS WITH UNNEEDED REASSIGNMENT OF IMMIGRATION JUDGES TO S. BORDER — DOJ Politicos Caused 276% Jump In NY Court Adjournments! — Then, DOJ Tried To Cast False Blame On Immigration Attorneys, Judges, & Obama Administration For Wasteful Adjournments That Sessions’s Politicos Had ORDERED — More Of My Interview With NBC Investigative Reporter Jodie Fleischer As Nationwide Expose Widens! — Stop The Abuse Of Due Process & Public Purse For Political Ends! — America Needs An Independent U.S. Immigration Court NOW!

Here’s the TV clip:

http://www.nbcnewyork.com/news/local/Immigration-Court-New-York-Judge-Investigation-448498463.html

Here’s the story:

As part of a joint six-month investigation, NBC-owned television stations across the country interviewed retired and current immigration judges, some of whom said the backlog is threatening to overwhelm the court

By Chris Glorioso, Dave Manney, Erica Jorgensen and Evan Stulberger

Documents from the Trump administration show the president’s plan to ship more immigration judges for temporary assignments in border states is encountering a fundamental problem: there isn’t enough work for all the new judges to do.
According to an assessment of “Surge Hearing Locations,” dated April 4, 2017, the Department of Justice found six of the 17 immigration courts receiving transferred judges could not give those judges enough work to support a full docket.
INVESTIGATIVE’Phantom’ Judges Cause Confusion in NYC Immigration Court
In the assessment and supporting documents, DOJ staffers wrote about an immigration court in Karnes, Texas, where there was “concern regarding the lack of filings to sustain details from other courts”

Immigration: Crisis in the Courts
An overview on how immigration judges are struggling with a punishing backlog that in many cities is pushing cases far into the future, slowing deportations and leaving families in limbo.

The same assessment says another court in Texas’s Prairieland Detention Center “is not receiving enough cases to truly fill a docket or even come close to it.”
At the court inside Texas’s Dilly Family Residential Center, DOJ staffers wrote “the one judge detailed there is not occupied.”

At New Mexico’s Cibola County Detention Center, DOJ staffers found the caseload “has not been sufficient to keep the two immigration judges assigned to this docket occupied.”

Staffers also noted two empty courtrooms at New Mexico’s Otero immigration facility — and concluded there were “insufficient caseloads for further deployments.”

Scheduling records show the Justice Department repeatedly assigned five transferred judges to the immigration court in Louisiana’s LaSalle Detention Facility, even though an assessment of the court found “at this time there is not enough work for five judges. There is enough work for a reasonable docket and three judges.”

The report went on to conclude that inefficient transferring of detainees often means “there is very little work for a detailed judge to complete.”

In most cases, the transferred judges spend two weeks to a month hearing cases in out-of-state court.

The Department of Justice declined to comment for this story, but in response to a previous inquiry by Politico, an agency spokesman said “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process.”

While transferred judges may have had light workloads when they arrived in some of the border state courts, there is evidence the dockets they left behind suffered in their home courts.

A joint analysis by the News 4 I-Team and Telemundo 47 Investiga found case adjournments in New York City’s immigration court went up 276 percent — from an average of 139 adjournments in the three months before the judge transfers began, to 522 in the three months after judge transfers began.

Despite that, the Trump administration has increased its target from 50 judge reassignments, to at least 137 nationwide. Nineteen New York City immigration judges — more than half of the city’s 32-judge staff – participated in the temporary transfer program.

Olga Byrne, an advocate for refugees at Human Rights First, a nonprofit that represents asylum-seekers in court, said immigration attorneys at her organization have noticed the spike in adjournments and questioned whether judicial assignments border state assignments are worth the trouble.

“We’ve been in touch with a couple of judges who have expressed a lot of frustration about being sent to a detention center where they could take a long lunch break,” said Byrne. “They had only a few cases to consider for a whole week and yet they had to defer hundreds of cases from their docket in their home court.”


But it is clear the Trump Administration knew its decision to deploy more judges to border states would likely have negative impacts on dockets those judges leave behind in their home states.
In response to questions from U.S. Senate staffers, a DOJ memo concedes that “it is likely that the case backlog will increase for the locations from which an Immigration Judge is assigned.”

In New York City alone, there are more than 82,000 immigrants waiting for a court hearing. The average wait time is north of two and a half years. Nationwide, the immigration case backlog stands at more than 617,000.
Rep. Adriano Espaillat (D – Upper Manhattan), who came to America as an undocumented immigrant, said he fears the Trump administration is over-staffing border state courts to rapidly deport current border-crossers, while ignoring the population of non-detained immigrants who’ve been living and working in America’s big cities, hoping for a shot at citizenship for years.
“By shifting judges to the border, they are in fact maybe predicting that there will be lots of cases before them in those jurisdictions,” Espaillat said. “I am concerned this is part of a greater effort to put together a deportation machine – and proceed to arrest and deport thousands of people who are undocumented.”

This isn’t the first time a presidential initiative has been criticized for mucking up immigration court schedules and exacerbating the nationwide case backlog.
During the Obama Administration, the Justice Department launched an effort to prioritize court hearings for unaccompanied minors who enter the country illegally.

Byrne says that too was a political decision which negatively impacted the court’s ability to handle thousands of older cases languishing in the backlog.
“It’s not a new thing that they are basically fulfilling political objectives with the way that the immigration court dockets are managed,” Byrne said. “I think we should be equally critical of both [the Trump and Obama administrations] for using the immigration court to fulfill political objectives rather than focusing on making that court system work well and efficiently.”

 

Source: I-Team: Immigration Judges Sent to Courts With ‘Very Little Work’ – NBC New York http://www.nbcnewyork.com/investigations/Immigration-Court-New-York-Judge-Investigation-448498463.html#ixzz4uXiMR2xJ
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To put this in context, during this massive abuse of the US Immigration Courts at the direction of Sessions and his incompetent politicos at the DOJ, the Chief Immigration Judge issued the notorious “Continuance Policy.”  That document not not very subtilely implied that unjustified continuance requests by private attorneys (all of them overburdened by the effects of ADR, and many working on a pro bono or “low bono” basis) and laxity in granting continuances by overwhelmed and demoralized U.S. Immigration Judges were major contributing factors in increasing backlogs. Nothing could be further from the truth!

In fact, conscientious Immigration Judges and dedicated private attorneys are the only ones trying to make this broken system work and to maintain at least a semblance of due process. Their main obstacles: improper politically-motivated interference from the DOJ and poor administration and failure to stand up to the politicos by out of touch bureaucrats at EOIR Headquarters in Falls Church who are afraid to “blow the whistle”because they value their jobs over due process. 

What kind of incompetents would draw the bulk of unneeded judicial details from what are known to be the most seriously backlogged Immigration Courts in the US, such as New York and Arlington? What type of incompetents would “study” the impact and need for the details after the fact, rather than carefully planning in advance? Assuming they were necessary (which they weren’t) why weren’t judicial details drawn from among the Assistant Chief Immigration Judges in Falls Church Headquarters who are never assigned actual cases? They, actually have time on their hands. And why does a system in crisis with inept management have highly-paid bureaucratic administrators like the ACIJs who never do any real judging? What makes a person a “judge”if he or she never “judges” anything?

Yes, as I’ve stated before, the Obama Administration enforcement policies and political interference from the Obama DOJ helped drive the backlogs to new heights. But, after taking over an obviously broken system, rather than doing the right thing and fixing the Immigration Courts with bipartisan legislation to create an independent Immigration Court System, with adequate resources, professional court administration, and freedom from political interference in its due process functions, the Trump Administration intentionally made things much, much worse! More judges have resulted in more backlogs because of politicized, incompetent judicial administration and poorly designed enforcement policies at DHS. If that doesn’t tell you something is seriously wrong, what will?

PWS

10-04-17

 

 

 

 

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