“JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW” – Page 60

FOURTH CIRCUIT EXPOSES EOIR’S CONTINUING BIAS AGAINST REFUGEES FROM THE NORTHERN TRIANGLE — “Here, as in [two other published cases], the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.” – Orellana v. Barr — Yet 4th Cir.’s “Permissive Approach” To Malfeasance At The BIA Helps Enable This Very Misconduct To Continue! — When Will Worthy, Yet Vulnerable Asylum Applicants Finally Get Justice From Our Courts?

Orellana v. Barr, 4th Cir., 04-23-19, published

PANEL: MOTZ, KING, and WYNN, Circuit Judges

OPINION BY: JUDGE MOTZ

KEY QUOTE:

In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.

Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.

First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,

3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.

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Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.

The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”

Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).

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The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.

Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.

First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.

Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11

cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.

Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.

Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from

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dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4

We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.

We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.

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

This case is a great illustration of my speech to FBA Austin about the biased, sloppy, anti-asylum decision-making that infects EOIR asylum decisions for the Northern Triangle, particularly for women who suffered persecution in the form of domestic violence. See “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“
The respondent’s evidence of “unwilling or unable to protect” was compelling, comprehensive, and uncontested. In cases such as this, where past harm rising to the level of persecution on account of a protected ground has already occurred, the “real courts” should establish and enforce a “rebuttable presumption” that the government is unwilling or unable to protect and shift the burden of proving otherwise where it belongs — to the DHS. See https://immigrationcourtside.com/2019/04/25/law-you-can-use-as-6th-cir-veers-off-course-to-deny-asylum-to-refugee-who-suffered-grotesque-past-persecution-hon-jeffrey-chase-has-a-better-idea-for-an-approach-to-unwilling-or-unable-to/ LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!
This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years. It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even if the respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
We don’t need a change in asylum law. We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
It’s welcome to get a correct published analysis from an Article III.
But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
Due Process Forever; complicity in the face of “malicious incompetence,” never!

PWS

05-25-19

BETH FERTIG @ WNYC/NPR: Judges Under Artificially Enhanced Stress: A Portrait Of The Newer Judges At The New York Immigration Court

https://www.wnyc.org/story/presiding-under-pressure/

On a weekday morning inside 26 Federal Plaza, you’ll see hundreds of people waiting in lines outside the small immigration courtrooms housed on the 12th and 14th floors. These hallways and courtrooms have no windows, making the place feel even more claustrophobic as guards remind everyone to stand against the walls to avoid blocking traffic.

In this bureaucratic setting, you’ll meet people from Central America, China, India and Eastern Europe all trying to stay in the U.S. Parents clutch the tiny hands of toddlers who want to run and play. Inside the court rooms, mothers hold crying babies on their laps and parents with large families cluster their children around them once they’re seated before a judge.

It’s a pressure cooker. Not only because each immigrant’s fate eventually will be decided here, but because judges complain their jobs have never been busier or more politicized. There’s a backlog of almost 900,000 cases, according to TRAC. The Justice Department, which oversees the immigration court system, established a quota for judges to complete 700 cases per year, an especially high hurdle in New York City, according to a WNYC analysis, because it’s the nation’s busiest immigration court. Meanwhile, the judges have new constraints in their ability to grant asylum because former Attorney General Jeff Sessions decided certain cases are not eligible. Judges are now granting asylum less often — even in New York, where immigrants historically had an easier time winning. Many judges and lawyers believe these actions show how the immigration court is becoming a vehicle for President Trump’s immigration agenda.

In a city where about 40 percent of residents were born abroad, New Yorkers have passionate views on immigration. Yet, few get to see where immigrants learn an often life-or-death decision. Trials are closed to the public, and sitting judges are not allowed to speak to the media. WNYC spent months in the main immigration court at Federal Plaza observing hearings to see how judges are handling new pressures, and how they interact with immigrants and lawyers (most of whom wanted to remain anonymous because they don’t want to hurt their cases). We focused on new judges who have taken the bench since Trump became president.

Here is what we learned.

Judges Who Worked for ICE or the Justice Department

Judges Lena Golovnin, Maria Lurye, Lisa Ling and Jem Sponzo.

(Jane Rosenberg for WNYC)

Eighteen judges in New York City started since Trump took office — almost half of all immigration judges here. Those new hires are under probation their first two years, putting them under extra pressure to meet priorities set by the Justice Department. Eight judges were lawyers at Immigration and Customs Enforcementand another had a similar role at the Justice Department. Their old jobs were to make the government’s case for deporting immigrants. Now, they’re supposed to be neutral adjudicators.

Lena Golovnin worked for ICE before starting as a judge in August 2018. From the bench, she speaks briskly and is very polite when handling 50-100 procedural hearings in a morning, typical for New York judges. Judges also schedule trial dates during these hearings but the backlog is so long, some won’t happen until 2023.

During a visit to her courtroom in December, Golovnin was stern with an attorney whose 16-year-old client didn’t provide school records to excuse himself from court that day. Minors don’t have to come to court if they’re enrolled in school, but proof is needed. “I’m not happy,” Golovnin said, noting the boy could have asked his school to fax the records to court.

The boy’s lawyer asked for an extra day to provide the records, but the government trial attorney objected. Golovnin then ordered the boy removed in absentia. This did not mean he’d be immediately deported because his lawyer could apply to reopen the case. But several attorneys and former judges said this was harsh, and that a more seasoned judge would have given the lawyer and client an extra day.

Some immigration lawyers worry too many judges come from ICE, but they acknowledge that experience doesn’t automatically bias them against immigrants. One lawyer called Golovnin a “delightful person” who should be a good judge. The Justice Department had a history long before Trump of hiring ICE attorneys as judges because of their immigration trial experience.

“I would much rather have a trial attorney as a judge,” said Stan Weber, a former ICE attorney who is now an immigration lawyer in Brooklyn. “I know that personally,” he said, adding that of the former ICE trial attorneys on the bench, “many of them I helped train.”

It’s difficult to measure which judges are more favorable to immigrants, but one factor is how often they grant asylum. This data is collected by TRAC and updated once a year. Not all new judges had completed enough cases to measure, but others did.

Judge Jem Sponzo came from the Justice Department’s Office of Immigration Litigation. She was appointed at the end of the Obama administration and took the bench in 2017. TRAC calculated she grants asylum about 69 percent of the time — a little lower than average for New York City’s court, which was more than 80 percent before Trump took office. Another judge, Paula Donnolo, had a grant rate of 80 percent. She left suddenly in March before her two-year probation period ended. Neither the Justice Department, Donnolo nor her union would comment.

Judges Donald Thompson, Michael McFarland, Cynthia Gordon and James McCarthy all used to work for ICE.

(Jane Rosenberg for WNYC)

Judge James McCarthy started in July 2017 and his asylum grant rate is 36 percent. McCarthy can seem gruff and no nonsense but he has a hearty laugh. In December, one attorney had a complicated case involving two teenage brothers in foster care, neither of whom came to court. When McCarthy gave the boys another court date, the government’s lawyer objected to granting them extra time without a prior discussion. The judge ignored this objection, adding “it’s in the best interest of the children” for them to get another day in court.

He also pushed back at a government lawyer’s line of questioning during an African man’s deportation trial. The wife testified that her husband had become more mature since committing minor crimes in his youth plus a felony conviction for robbery. The government lawyer asked her, “Have you ever heard the expression ‘talk is cheap’?” Judge McCarthy reproached her with, “that’s not a question.”

According to TRAC, Judge Donald Thompson granted asylum to 75 percent of immigrants in the last year. Not surprisingly, immigration lawyers call him “a wonderful judge.” One attorney in Thompson’s courtroom was representing a Nigerian woman seeking asylum, because she claimed to be a victim of female genital mutilation. She was given a trial date in May 2021. When the attorney expressed a desire to go sooner, Thompson found a date in September.

Taramatee Nohire came to Judge Lisa Ling’s court one day in December. She’s seeking asylum because she claims she’ll be persecuted in her native Trinidad for being a Kali worshipper. “I was a bit nervous,” she said, about going to immigration court. She was still collecting documents that are hard to obtain. “That also made me have anxiety,” she added. Her attorney, Pertinderjit Hora, was glad when Ling scheduled the trial for November, giving her more time to prepare the case. She expected the newly-minted judge to be scheduling cases even sooner.

In trials, judges have to listen to hours of testimony by immigrants and their witnesses — often with the help of a translator. During one asylum trial, Judge Cynthia Gordon asked many detailed questions of a Central American woman who claimed she was a victim of domestic abuse. The woman’s attorney said the judge’s questions made it feel like there were two trial attorneys in the room.

Another judge who formerly worked for ICE, Susan Beschta, started as a punk rocker before becoming a lawyer. She was hired last fall and died this month.

Judges Who Used to Represent Immigrants

Judges Howard Hom, Maria Navarro and Charles Conroy.

(Jane Rosenberg for WNYC)

Although the Department of Justice selects many ICE attorneys as judges, it also chooses lawyers who have represented immigrants, as well as those who have worked in various government agencies.

Judge Charles Conroy worked for the Legal Aid Society and was an immigration lawyer in private practice. He wrote a play called “Removal” that was performed at the Manhattan Repertory Theatre in 2015. It was described as a legal drama on its website.

“Two immigrants find themselves caught up in America’s deportation system — a Haitian escaping the torture he suffered back home at the hands of his government and a mentally ill Cambodian brought to the U.S. as a young child decades ago. Their attorney, Jennifer Coral, fights to keep them both in the U.S., but their common struggle opens old wounds and exposes a deep political and cultural rift in America.”

Immigration lawyers expected Conroy would often rule in their favor. However, since taking the bench in 2017, TRAC calculated that he denied asylum about half the time.

In court, Conroy seemed focused on moving cases as expeditiously as possible. He spoke quickly and rarely looked up from his desk. He reminded each lawyer which documents they needed to take before they leave. One lawyer said, “He will not bend at all accepting documents that are late.”

But another immigration lawyer called him, “a nearly perfect judge. Impartial, smart, efficient and knows the law.”

Many lawyers said they have a good shot with Judge Maria Navarro, who also worked for the Legal Aid Society. She has an asylum grant rate of 85.5 percent.

Another new judge, Howard Hom, worked as an immigration attorney. But he was also an administrative law judge for California and a trial attorney with the former Immigration and Naturalization Service.

Judges With No Immigration Trial Experience

Judges Samuel Factor, Oshea Spencer and Brian Palmer.

(Jane Rosenberg for WNYC)

Last November, the Justice Department issued a memo requiring judges to expedite family cases and complete their trials within a year or less. Most appear to be families from Central America who crossed the border in the past year. Their cases are often assigned to new judges who have more room on their calendars. Some of these judges had no prior immigration experience.

Judge Oshea Denise Spencer was an attorney with the Public Utility Commission of Texas before becoming an immigration judge last October. She was assigned many of the family unit cases the Justice Department wants completed quickly. In mid-December, she told one attorney representing a Honduran mother and son that she wanted to move their asylum trial from May to March. The attorney objected because she’s juggling so many cases at her busy nonprofit. “It would be a violation of due process,” she said. Spencer let the attorney keep her original date.

Judge Samuel Factor was an administrative law judge with New York State Office of Temporary and Disability Assistance before becoming an immigration judge in October, 2018. By December, he was so busy he was scheduling trials in August 2020. “Give me 15 minutes we’ll be in 2021,” he joked to an attorney. He then apologized to another attorney for needing to schedule a trial in 2021. But in a family case involving a woman and child from Guatemala, he scheduled the trial much sooner, in October.

Judge Brian Palmer was previously an attorney, judge and commanding officer in the U.S. Marine Corps before taking the bench last October. Some immigration lawyers wonder why he’d want the job.

“On the Brink of Collapse?”

This year, the American Bar Association declared the U.S. immigration courts “on the brink of collapse.” It cited the quota system, and new rules from former Attorney General Sessions that took away judges’ ability to control their dockets. Meanwhile, the backlog grows as more migrants arrive at the border and some cases get delayed.

According to data obtained by WNYC, 14,450 hearings were adjourned in fiscal year 2018 because the judges couldn’t finish them — an increase from 9,181 from the previous year. More than 1,700 of those adjournments were in New York City. And there aren’t enough translators. More than 5,300 hearings were adjourned in fiscal year 2018 because no interpreter was scheduled, an increase from 3,787 the previous year.

The Executive Office for Immigration Review, a division of the Justice Department which runs the nation’s immigration courts, said those numbers aren’t even half of 1 percent of all 1.3 million hearings that year.

Nonetheless, these problems do affect the flow of a courtroom. In December, Judge Howard Hom was scheduling cases involving Punjabi speakers later than others because he couldn’t get a translator until September. Another judge, Maria Lurye, decided to group her 47 cases on a morning in March to make them move more efficiently. She started by calling all attorneys whose clients were seeking asylum.

“Are all of your clients here today?” Lurye asked. “Yes,” eight lawyers replied in unison. She then gave them different trial dates in April 2022, without taking individual pleadings. After that, she formed a group for other cases that were similar. The judge was able to see about 17 cases in 90 minutes, slightly faster than without the groupings.

Ashley Tabaddor, president of the National Association of Immigration Judges, described her members as being under a huge strain. “We are absolutely seeing some of the lowest morale and anxiety that’s completely unprecedented,” she said. The union leader also said the quotas have only made things worse because they risk sacrificing due process for expediency. Judges now see dashboards on their computers showing in red, yellow and green, indicating if they’re on target for their case completion goals.

Two examples of the dashboards the Justice Department uses to monitor an immigration judge’s case completion rate.

(Courtesy of National Association of Immigration Judges)

In a congressional subcommittee hearing, Executive Office for Immigration Review Director James McHenry defended the quotas. He said immigration judges completed more cases in Fiscal Year 2018 than in any year since 2011. He called this a “direct refutation” of critics who claim judges lack the integrity and competence “to resolve cases in both a timely and impartial manner.”

But because of the ways in which President Trump’s Justice Department is shaping the immigration court, one New York City immigration lawyer, Jake LaRaus, said it is “at best a kangaroo court.”

Former New York immigration judge Jeffrey Chase said, “All moves made by this administration must be viewed as pieces in a puzzle designed to erode the independence of immigration judges in order to allow the administration to better control case outcomes to conform with its political goals.”

This month, the judges union and a coalition of former judges each wrote stern letters to the Justice Department for releasing “wildly inaccurate and misleading information” in a fact sheet it released to the media about the courts.

A New Path for Immigration Court

An empty judge’s chair in New York City’s immigration court.

(Jane Rosenberg for WNYC)

The judges’ union wants to take the immigration court out of the Executive Branch and make it independent, like tax and bankruptcy courts. These are called Article Icourts. Congress would have to approve this change.

The Federal Bar Association has drafted model legislation for an Article I court. Judges would have fixed terms, and they’d be able to hold lawyers in contempt. Though this won’t solve the backlog problem, many academics and immigration lawyers support the plan because it would free the immigration court from the Justice Department’s bureaucracy and politics.

The Trump administration opposes the proposal. The Executive Office for Immigration Review said no organization has studied the cost or fully explored the ramifications. It says it’s solving the court’s backlog with quotas and by hiring 200 new judges, through new positions and filling vacancies. But nationally, there are just 435 judges.

An independent Article I court won’t be an easy sell in Congress, either. Elizabeth Stevens, who helped draft the Federal Bar Association’s proposal for the immigration court and previously worked in the Justice Department, said the only hope is for supporters to focus on courtroom efficiency.

“If it becomes politicized it becomes another issue of comprehensive immigration reform,” she warned.

There’s another immigration court in downtown Manhattan, in a federal building on Varick Street. It was previously just for immigrants held in detention, but with Federal Plaza running out of room, the government opened new courtrooms at the Varick location in March.

Two new judges, Conroy and Ling, moved to Varick Street. There are also four brand new judges who started this spring. Two of them previously worked for ICE. One was an assistant district attorney in Suffolk County and the other was a domestic relations magistrate in Trumball, Ohio.

Varick Street has been in the news because of a lawsuit. Hearings there are held by video for detainees. Now, the trial attorneys at regular hearings appear by video. Immigration lawyers have complained about this process.

The Executive Office for Immigration Review is planning to open more courtrooms in New York this year. It would like to hire 100 more judges nationally in the next fiscal year. The judges union believes it needs hundreds more than that to manage the backlog.

PWS

05-22-19

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS “NEW DUE PROCESS ARMY”

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called “courts” in places where no legal services are available, using a variety of largely untrained “judges,” themselves operating on moronic and unethical “production quotas,” many appearing by poorly functioning and inadequate televideo? Would a real court system put out a “fact sheet” of blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of “justice” on a “deportation railroad” designed to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally “hostile environment” for migrants and their attorneys.

This hostility particularly targets the most vulnerable among us – asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years – failed policies that we now are mindlessly “doubling down” upon.

My friends have given you the law. Now, I’m going to give you the “facts.” Let’s go over to the “seamy underside of reality,” where the war for due process and the survival of democracy is being fought out every day. Because we can’t really view the travesty taking place at the BIA as an isolated incident. It’s part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in today’s “weaponized” Immigration Courts.

I, of course, hold harmless the FBA, the “Burmanator,” my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS – just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, “It’s me baby, with your wake-up call.”

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic “dumbed down” regime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the “real” Article III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the “crapshoot world” of today’s BIA, you might win.

After the “Ashcroft Purge of ’03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, “a facade of quasi-judicial independence.” But, amazingly, it has gotten even worse since then. The “facade” has now become a “farce” – “judicial dark comedy” if you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further “dumb down” the BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be “packed with more restrictionist judges,” decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be “gamed” so that any two “hard line” Board “judges,” acting as a “fake panel” will be able to designate anti-asylum, anti-immigrant, and pro-DHS “precedents” without even consulting their colleagues.

Even more outrageously, Barr and his “do-bees” over at the Office of Immigration Litigation (“OIL”) intend to present this disingenuous mockery as the work of an “expert tribunal” deserving so-called “Chevron deference.” Your job is to expose this fraud to the Article IIIs in all of its ugliness and “malicious incompetence.”

Yes, I know, many “real” Federal Judges don’t like immigraton cases. “Tough noogies” — that’s their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their “comfort zones” so that they can “get to yes” for your client. But, this assumes a system operating professionally and in basic good faith. In the end, it’s not about fulfilling the judge’s or opposing counsel’s career fantasies or self-images. It’s about getting Due Process and justice for your client under law.

And, if Article III judges don’t start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: “This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.”

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessions’s case, that included references to “dirty attorneys” representing asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what “justice system” is the “chief prosecutor” allowed to reach in and change results he doesn’t like to favor the prosecution? It’s like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents. In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials — in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in today’s Immigration Courts. This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that court’s one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the “Dred Scottification” of foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of “malicious incompetence” along with a concerted effort to make foreign nationals “non-persons” under the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to “de-personize” and effectively “de-humanize” minority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the “due process hit list.”

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the precedents resulting from Sessions’s and Barr’s unethical participation in the quasi-judicial process; 3) make the historical record; and 4) fight “Dred Scottification.”

I also encourage all of you to read and subscribe (it’s free) to my blog, immigrationcourtside.com, “The Voice of the New Due Process Army.” If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on “Courtside.”

Folks, the antidote to “malicious incompetence” is “righteous competence.” The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies, with resulting “Aimless Docket Reshuffling,” intentionally “jacked up” and uncontrollable court backlogs, and “dumbed down” judicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, “injustice anywhere is a threat to justice everywhere.”

The Immigration Court’s once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! “Malicious incompetence” never!

(05-17-19)

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PWS

05-20-19

ALL THINGS CONSIDERED: “Roundtable” Leader Judge Jeffrey Chase Tells NPR’s Michel Martin How Trump’s “Malicious Incompetence” & EOIR’s “Dysfunctional Bias” Are Increasing Backlog & Killing Due Process In Failing Immigration Court System

https://www.npr.org/2019/05/19/724851293/how-trumps-new-immigration-plan-will-affect-backlog-of-pending-cases

Here’s the transcript:

LAW

How Trump’s New Immigration Plan Will Affect Backlog Of Pending Cases

5:40

DOWNLOAD

TRANSCRIPT

May 19, 20195:35 PM ET

Heard on All Things Considered

NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.

MICHEL MARTIN, HOST:

This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.

Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.

Mr. Chase, welcome. Thank you so much for joining us.

JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…

MARTIN: It does.

CHASE: It worked out.

MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?

CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.

So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.

MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?

CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.

MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?

CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.

MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?

CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.

And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.

MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?

CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.

MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.

Jeffrey Chase, thank you so much for talking to us.

CHASE: Thank you so much for having me on the show.

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

Go to the link for the full audio from NPR.

I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”

PWS

05-21-19

NBC NEWS: MIGRANT KIDS CONTINUE TO DIE IN TRUMP’S “NEW AMERICAN GULAG” — 16 Year Old Guatemalan Boy 5th “Kid Casualty” Since Dec!

https://www.nbcnews.com/news/latino/16-year-old-migrant-boy-dies-u-s-custody-5th-n1007751

Daniella Silva reports for NBC News:

A 16-year-old Guatemalan boy died Monday in immigration custody in south Texas, the fifth migrant child to die since December, Customs and Border Protection said.

The teenager, who was not identified by authorities, was apprehended after crossing the border May 13 near Hidalgo, Texas, CBP said in a statement posted Monday. The boy was transferred from the Rio Grande Valley Sector’s Central Processing Center to the Weslaco Border Patrol Station on Sunday, the statement said.

He was then due to be placed with the Health and Human Services Office of Refugee Resettlement, the agency that oversees care of unaccompanied or separated migrant children after they are initially processed by immigration authorities, the statement said.

But the boy was found unresponsive Monday morning during a welfare check, the statement said. He died at the Weslaco Station.

“The men and women of U.S. Customs and Border Protection are saddened by the tragic loss of this young man and our condolences are with his family,” acting Commissioner John Sanders said in the statement. “CBP is committed to the health, safety and humane treatment of those in our custody.”

The cause of death is unknown and the incident is being reviewed by CBP’s Office of Professional Responsibility. The Guatemalan government has been notified, the statement said.

The boy is the fifth migrant child to die since December. All of the children were Guatemalan. Asylum-seekers and other migrants from Guatemala have been fleeing a mix of violence, drought, food shortages and poverty.

In December, Jakelin Caal Maquín, 7, died of a bacterial infection, and Felipe Gomez Alonzo, 8, died of a flu infection while in CBP custody, according to authorities.

On April 30, Juan de León Gutiérrez, 16, died following “several days of intensive care” at a hospital after falling ill while in the custody of the Department of Health and Human Services.

A medical examiner in Corpus Christi, Texas, said Juan had been diagnosed with a rare condition known as Pott’s puffy tumor, which can be caused by a severe sinus infection or head trauma, according to The Associated Press.

Last week, a 2½-year-old died after being hospitalized for pneumonia, following high fever and difficulty breathing after he was apprehended in early April, authorities said.

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The death toll for kids doesn’t even count some who have died or been killed in Mexico while awaiting processing that they are legally entitled to, but are not receiving in violation of law by the Administration.

Seems like rather than wasting time and money on walls, troops to string barbed wire, “remain in Mexico,” tent cities, increased detention, and using Border Patrol Agents illegally as unqualified “Asylum Officers,” the Administration should be concentrating all efforts on humanitarian care and assistance, fairly and timely processing asylum applicants at ports of entry, and granting as many asylum cases as possible under the current law to clear those cases out of the crowded system.

The existing law is actually flexible enough to deal with the current humanitarian situation if we had a competent, law-abiding Administration. However, the likely results, granting asylum to legitimate refugees fleeing situations in the Northern Triangle for which we share a great deal of responsibility, wouldn’t please the White Nationalist nativists. Just imagine using the law properly to protect deserving refugees, rather than “gaming” it to reject them.

One main purpose of the “Wilberforce Trafficking Victims Protection Act” (“TVPA”) was to insure maximum protection to minors arriving at the border. Shamefully, rather than seeing that those protections are carried out, the Trump Administration and the GOP actually seek to remove Wilberforce Protection from those who need it most, thereby paving the way for massive child exploitation and casualties. Throughout his Administration, Trump and his White Nationalist cronies have been the “best friends” and “biggest boosters” of the druggies, human smugglers, cartels, and gangs. How about an Administration that protects victims rather than enriching and enabling their persecutors and abusers?

PWS

05-20-19

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, I’m Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the “heavy lifting,” please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other “enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats — will be in line for “Dred Scottification” — becoming “non-persons” under our Constitution. If you don’t know what the “Insurrection Act” is or “Operation Wetback” was, you should “tune in” to today’s edition of my blog immigrationcourtside.com and take a look into the future of America under our current leaders’ dark and disgraceful vision.

Before I introduce the “Dream Team” sitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under today’s regime!

In the 1990s, the “Legacy INS” enacted regulations establishing that those who had suffered “past persecution” would be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of “egregious past persecution” or “other serious harm.”

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as “female genital mutilation’ (“FGM”), could be a basis for granting asylum based on a “particular social group.” Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our “forced departure” from the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (“CAT”), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all” was at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesn’t count those offered prosecutorial discretion or “PD” by the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didn’t squarely fit the somewhat convoluted “refugee” definition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in “close cases” or in “emerging circumstances.”

In 2014, there was a so-called “surge” in asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating “treaties,” exacting involuntary “taxes,” and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called “surge” passed “credible fear” screening by the DHS and were referred to the Immigration Courts, or in the case of “unaccompanied minors,” to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious — help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane “nexus” requirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have “sealed the deal.” In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed “surge” as what it really was — a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called “soft on enforcement” by the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective “manhood” depended on showing that they could quickly return refugees to the Northern Triangle to “deter” others from coming. Thus began the “weaponization” of our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called “courts” in those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a “national security risk.” They argued in favor of indefinite detention without bond and making children and toddlers “represent themselves” in Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by “prioritizing” them, denying their claims, “stuffing” their appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administration’s “get tough” enforcement program. EOIR was there to “send a message” to those who might be considering fleeing for their lives — don’t come, you won’t get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and “adults with children” in front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as “aimless docket reshuffling” (“ADR”).

Hurry up scheduling and ADR also resulted in more “in absentia” orders because of carelessly prepared and often inadequate or wrongly addressed “notices” sent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didn’t even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get “lost” in the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to “expedience” and fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldn’t get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates weren’t providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called “dirty lawyers,” for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the “mastermind” behind the policy of “child separation” which inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged “judges” to summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the “new norm” for final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a “bogus fact sheet” of lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear “wait in Mexico” in dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the “New American Gulag” with tent cities and more inhumane prisons — dehumanizingly referred to as “beds” as if they existed without reference to those humans confined to them; illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary “wall;” and threatened to “dump” asylum seekers to “punish” so-called “sanctuary cities.” Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the “credible fear” process with totally unqualified Border Patrol Agents whose job is to make the system “adversarial” and to insure that fewer individuals pass “credible fear.”

The Administration says the fact that the “credible fear” pass rate is much higher than the asylum grant rate is evidence that the system is being “gamed.” That’s nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified “judges,” many claims that should be granted are being wrongfully denied.

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

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

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

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

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the “best ever.” I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University. In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, what’s the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

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