⚖️🤯 UNJUSTIFIED! — Federal Judge Charges USG $22,601 For DHS’s Scofflaw Actions & DOJ’s Mindless “Defense Of The Indefensible” In Colorado Detention Case! — Wanton Cruelty & Stubborn Stupidity Cost In More Ways Than One!

Dan Kowalski reports for LexusNexus Immigration Community: 

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/habeas-eaja-fee-victory-in-colorado-viruel-arias-v-choate

https://storage.courtlistener.com/recap/gov.uscourts.cod.217942/gov.uscourts.cod.217942.16.0.pdf

https://storage.courtlistener.com/recap/gov.uscourts.cod.217942/gov.uscourts.cod.217942.28.0.pdf

Michael Karlik, Colorado Politics, Aug. 2, 2023

“A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded.  U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process.  Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars.  Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.”  On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention.  “(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.”

[Hats off to Conor Gleason and Laura Lunn!]

Connor Gleason, EsquireSenior Staff Attorney, Detention Program Rocky Mountain Imm Migrant Advocacy Network ("RIMAN") PHOTO: RIMAN
Connor Gleason, Esquire
Senior Staff Attorney, Detention Program
Rocky Mountain Imm
Laura Lunn, Esquire
Laura Lunn, Esquire
Director of Advocacy & Litigation
Rocky Mountain Immigrant Advocacy Network (“RMIAN”)
PHOTO: RMIAN

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

RMIAN is “on a roll” these days. See, e.g., https://immigrationcourtside.com/wp-admin/post.php?post=34101&action=edit.

Garland’s DOJ, “not so much.” 

Here’s my favorite quote from Judge Sweeney’s decision: “At bottom, Respondents were not substantially justified in their pre-litigation and litigation practices because they disregarded a clear legal trend in the District and their own agency policies in the underlying action.”

Similar to the Trump Administration, the Biden Administration is wasting taxpayer money on cruel, unnecessary, expensive, illegal detention, and then squandering even more money on the arguably frivolous, and clearly mindless, defense thereof! Somebody should be asking Garland why?

🇺🇸Due Process Forever! 

PWS

08-05-23

🇺🇸⚖️🗽 GW IMMIGRATION CLINIC STUDENTS SAVE ANOTHER LIFE!😎 — “[He] clicked the trigger of the gun, which made a sound, but did not fire a bullet.”

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera

Professor Alberto Benítez reports:

This past Wednesday, August 2, Immigration Judge (IJ) Dinesh Verma of the Hyattsville Immigration Court granted asylum to Immigration Clinic clients R-R- and her 17-year-old son, D-R-. R-R- and D-R- have been Clinic clients since 2019 and their asylum applications were filed that year with the assistance of the Clinic. Their merits hearing was originally scheduled for 2020, but was postponed until this past Wednesday due to the pandemic. They were represented at their hearing by Immigration Clinic summer intern Brennan Eppinger, a rising 2L.

R-R- and D-R- fled Honduras after R-R- stood up to a gang member who was trying to recruit her son, D-R-, to transport drugs. D-R- was 11 years old at the time. The gang member later broke into their home, put a gun to R-R- ‘s head, asked R-R- if she had ever played Russian roulette, and the quote in the subject line is what happened next. R-R- and D-R- sought safety in the United States shortly after.

Please join me and Professor Vera in congratulating Navil Infante, Alex North, Rachel Kidd and Jasmine Elsmasry, who all worked on the case. IJ Verma is a GW Law alum and was a student in my Immigration Law I class in 1997. Brennan noted this fact on the record but the IJ (who did remember me) and the ICE trial attorney waived any conflict issue.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax             

abenitez@law.gwu.edu

THE WORLD IS YOURS…

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

Many congrats to all involved! 

Interestingly, I used the “Russian Roulette analogy” yesterday in referring to AG Merrick Garland’s dismissive attitude toward the outrageous inconsistencies and abuses in his EOIR asylum adjudications. 

⚖️☠️ BLOWING THE BASICS! — IJ Misapplies “Under Color Of Law Doctrine” In CAT Case; BIA Affirms; 10th Circuit Reverses, Blowing Away Garland DOJ’s BS “No Jurisdiction” Argument In The Process — “[The IJ’s] interpretation defies logic and the law.” — We Deserve Much Better From Dem AG!

This is a wonderful, inspiring result, produced by great student lawyering, a thoughtful IJ, and an ICE ACC with a sense of justice and practicality. It should be the rule, not the exception, in EOIR asylum adjudication! But, sadly, it isn’t!

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

I virtually guarantee that if this case had been adjudicated at the border, in detention, and/or on one of Garland’s “expedited/dedicated” dockets, the result would have been unfavorable. And, depending on the circumstances, it’s not even clear that an applicant with this type of very grantable claim would have access to the asylum adjudication system under Biden’s “enjoined but stayed transit rules!” See, e.g., https://twitter.com/Haleaziz (A “temporary win” for the Biden Administration, engineered by two 9th Cir. Dem judicial appointees, is a big loss for humanity and the rule of law, defended only by dissenting Trump appointee, Judge VanDyke, a result that should leave advocates scratching their heads about their place in today’s mushy Dem Party.)

Cases like this illustrate how the EOIR system could be run in a fair, efficient, professional, and properly humane manner! But, they don’t answer the question of why isn’t set up to run that way in every case under Garland!

Also, and quite perversely, the failure of the Biden system to produce fair and equitable results at the border puts a premium on individuals who can avoid border processing and get to the interior (the exact opposite of the result Biden claims to be trying to achieve)! 

This is a totally screwed up system being “administered” by a Dem Administration that sorely lacks both courage and a clear vision of how to insure that asylum seekers and other immigrants, particularly those of color, receive due process and justice in America!

🇺🇸Due Process Forever!

PWS

08-04-23 

⚖️☠️ BLOWING THE BASICS! — IJ Misapplies “Under Color Of Law Doctrine” In CAT Case; BIA Affirms; 10th Circuit Reverses, Blowing Away Garland DOJ’s BS “No Jurisdiction” Argument In The Process — “[The IJ’s] interpretation defies logic and the law.” — We Deserve Much Better From Dem AG!

Laura Lunn, Esquire
Laura Lunn, Esquire
Director of Advocacy & Litigation
Rocky Mountain Immigrant Advocacy Network (“RMIAN”)
PHOTO: RMIAN

Colorado AILA reports:

From: ColoradoAILA@groups.io <ColoradoAILA@groups.io> on behalf of Aaron Hall via groups.io <aaron=immigrationissues.com@groups.io>
Sent: Tuesday, August 1, 2023 2:29 PM
To: ColoradoAILA@groups.io <ColoradoAILA@groups.io>
Subject: [ColoradoAILA] Arostegui-Maldonado v. Garland

A HUGE congratulations to RMIAN and Laura Lunn on today’s 10th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.

Incredible work to Laura and all others involved!

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Aaron C. Hall

Senior Partner

Pronouns: he/him/his

12203 East Second Avenue

Aurora, CO 80011

Direct: 303.962.6630

www.immigrationissues.com

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

Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!

Russian Roulette
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?”
IMAGE: tvtropes

After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.

There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!

It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”

In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”

🇺🇸 Due Process Forever!

PWS

08-03-23

 

 

 

📷 LINEKIN BAY SUNSET — By Susanna Schmidt

Linekin Bay Sunset 1
Linekin Bay Sunset 1
Photographer: Susanna Schmidt
Green Bay, WI
08-01-23
Linekin Bay Sunset 2
Linekin Bay Sunset 2
Photographer: Susanna Schmidt
Green Bay, WI
08-01-23

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

Susanna is our 16-year-old granddaughter who lives in Green Bay, Wisconsin, with her family. She is currently “on loan” to us in Maine, pending the arrival of the rest of her family in a few days!

🇺🇸 Due Process Forever!

PWS

08-03-23

⚖️🤯 BIA SEEKS AMICUS INPUT ON HOW THEY CAN HELP DHS “REMEDY” ITS OWN MISTAKES!

Jeff Sessions
Former AG Jeff Sessions openly despised immigrants and their attorneys and encouraged “his judges” at EOIR to help out their “partners at DHS Enforcement.” That attitude lives on even under AG Merrick Garland!
This caricature of Jeff Sessions was adapted from a Creative Commons licensed photo from Gage Skidmore’s Flickr’s photostream.
DonkeyHotey
Creative Commons Attribution-Share Alike 2.0

https://www.justice.gov/eoir/page/file/1592111/download

Amicus Invitation No. 23-01-08

AMICUS INVITATION (NOTICE TO APPEAR) DUE August 31, 2023

AUGUST 1, 2023

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue(s):

ISSUE(S) PRESENTED:

Pursuant to Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022):

1. Should an Immigration Judge allow DHS to remedy a non-compliant Notice to Appear?

2. To remedy a non-compliant Notice to Appear, is either (1) issuing an I-261, or (2) amending the Notice to Appear, permitted by the regulations, and would either comport with the single document requirement emphasized by the United States Supreme Court in Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021)? If not, how can a non-compliant Notice to Appear be remedied?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a written request labeled “REQUEST TO APPEAR AS AMICUS CURIAE” pursuant to Chapter 2.10, Appendix A (Directory), and Appendix E (Cover Pages) of the Board of Immigration Appeals Practice Manual. The Request to Appear as Amicus Curiae must explicitly identify that it is responding to Amicus Invitation No. 23-01-08. The decision to accept or deny a Request to Appear as Amicus Curiae is within the sole discretion of the Board. Please see Chapter 2.10 of the Board of Immigration Appeals Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear as Amicus Curiae pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear as Amicus Curiae must explicitly identify that it is responding to Amicus Invitation No. 23-01-08. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider an amicus brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case, including the parties’ contact information, may be available. Please contact the Clerk’s Office at the below address for this information prior to filing your Request to Appear as Amicus Curiae and amicus brief.

Page Limit: The Board asks that amicus curiae briefs be limited to 25 double-spaced pages.

Deadline: Please file a Request to Appear as Amicus Curiae and amicus brief with the Clerk’s Office at the address below by August 31, 2023. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear as Amicus Curiae and amicus brief may not be entertained. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear as Amicus Curiae and amicus brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear as Amicus Curiae and amicus brief. See generally Chapter 2.10 (Amicus Curiae) and Chapter 4.6(i) (Amicus Curiae Briefs) of the Board of Immigration Appeals Practice Manual.

Notice: A Request to Appear as Amicus Curiae may only be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(d). A Request to Appear as Amicus Curiae filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Where more than three attorneys or representatives sign an amicus brief or filing, the Board will name only the first three individuals in the published case. If you wish a different set of three names or have a preference on the order of the three names, please specify the three names in your Request to Appear as Amicus Curiae and amicus brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk

Board of Immigration Appeals Clerk’s Office

5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.

Fee: A fee is not required for the filing of a Request to Appear as Amicus Curiae and amicus brief.

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

Seems like the obvious “remedy” would be to require that DHS issue a new compliant NTA! 

Respondents don’t get to “remedy” all mistakes, even inadvertent ones! Why should the USG be allowed to weasel its way out of a situation they intentionally created in a misguided effort (aided and abetted by EOIR “management”) to cut corners and generate statistics to please their political masters?

Ever since the “Ashcroft purge,” the BIA has functioned less and less as an independent quasi adjudicative body and more and more as an apologist for, enabler, or justifier of each Administration’s immigration enforcement agenda! In other words, the BIA’s role has become largely to slap a “quasi-judicial veneer” on DHS enforcement policies and priorities so that OIL can argue Chevron deference or even “Brand X” in the Article IIIs!

Of course, using EOIR as a “deterrent” and “enforcer” over the past two decades has been a spectacular failure! It has led to “Aimless Docket Reshuffling on Steroids,” absurdly insurmountable backlogs, and frequent rebukes from the Article IIIs. 

Indeed, having helped create and magnify exponentially the mess at EOIR, many of the Trump and Biden Administration’s “gimmicks” appear aimed at avoiding or sidestepping the EOIR process altogether. 

It’s the height of disingenuousness! At the urging of the White House, DOJ and DHS “break” the fair hearing system at EOIR. They then use their own misconduct and mismanagement as an excuse to deny asylum seekers and others access to the fair and impartial adjudication system to which they are legally entitled!

And, while the Article IIIs, even the Supremes, have “called out” EOIR on frequent, particularized errors, they have been happy to sweep the obvious “big problem” under the rug in a monumental exercise of “judicial task avoidance!” 

That problem is that as currently operated, the EOIR system is a clear violation of the Constitutional principle that individuals facing removal, an often irreparable, even deadly, loss, are entitled to a reasonable decision from a fair and impartial decision-maker. See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970). While justice is served in some EOIR decisions, the systemic failures push in the exact opposite direction. 

Without the necessary systemic safeguards in place, life and death decisions are largely an arbitrary and capricious “crap shoot” where wildly inconsistent results on the same or similar facts too often depend on the attitude of the judge, the whimsical decisions by “management” on whether to interfere in decision-making, and the location and circumstances of the hearing.

This is NOT the way to run a legitimate court system in compliance with due process and fundamental fairness!

For now, advocates should continue to vocalize their strong opposition to “how can we help our partners at DHS Enforcement” adjudication passing for justice at EOIR!

🇺🇸 Due Process Forever!

PWS

08-02-23

🤯 INCREDIBLE! — 2d Cir. Schools EOIR On Adverse Credibility — Chen v. Garland

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca2.uscourts.gov/decisions/isysquery/58f9e14a-e986-4263-9590-1f525ff8d4f9/2/doc/19-715_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-credibility-chen-v-garland

“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”

[Hats off to Gary Yerman!]

Gary Yerman. Esquire
Gary Yerman, Esquire
Managing Partner
The Yerman Group
NY, NY

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

My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.” 

But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?

Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!

As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.” 

I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.

Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!

That’s why it is critical to have individuals effectively represented at the trial level! At each level thereafter, the law skews heavily in favor of the Government! 

That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!

It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!

That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR! 

Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance? 

It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!

🇺🇸 Due Process Forever!

PWS

08-01-23

🇺🇸🗽⚖️👍🏼😎 CONGRATS TO GW LAW IMMIGRATION CLINIC ON “WIRE TO WIRE” SUCCESS!📣

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera — They have dedicated their professional careers to teaching skills and values that change lives and advance a vision of a better future America!

Professor Alberto Benítez reports to Courtside:

Victory is the only option!

A shout-out to our student-attorneys Julia Yang, Spoorthi Datla, Cornelia Waugh, and Kelly Zhang. Yesterday our client S-L, from China, Kelly, and Paulina Vera attended an interview at USCIS. The client is a survivor of domestic violence and we had filed several applications on her behalf, including one for naturalization. Today all the applications were granted. S-L’s oath ceremony will be scheduled.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax             

abenitez@law.gwu.edu

THE WORLD IS YOURS…

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

Many, many congrats to all involved! 

Given the endemic delays at every level of the dysfunctional USG immigration bureaucracy, seeing a case through from the initial application to eventual naturalization is no mean feat!😎 THIS, NOT the total disgraceful BS emanating from Trump, DeSantis, Abbott, and the rest of the GOP xenophobes, is what the REAL “American Dream” is all about and what REALLY “Makes America Great” — NOT totally disingenuous slogans and “throwaway lines” from those afraid to embrace and celebrate the REAL America!🇺🇸 

The future of American immigration advocacy looks promising, notwithstanding the incredibly dark visions being falsely promoted by GOP restrictionists and the disturbingly feeble response from the Biden Administration and Dems in Congress. The talent in the “New Generation” of the NDPA continues to grow thanks to the inspiration and tutelage of Professors Benitez and Vera and many others like them who have dedicated their lives to making things better for everyone! 

As a result, there is a rapidly expanding talent gap between the NDPA and the sluggish, unresponsive, “go along to get along” USG immigration bureaucracy — right up to the White House where so-called “policy makers” fear standing up for the rule of law and American values! Getting the talent from the “outside” to the “inside” where they can solve problems and advance progressive, practical American values is the challenge that will determine the future of our democracy!

🇺🇸 Due Process Forever!

PWS

07-31-23

⚖️ LAW YOU CAN USE! — 1st Cir. & Hon. “Sir Jeffrey” Chase Combine To Provide Expert Guidance On How To Handle BIA’s Inexpert Treatment Of Experts! 👍🏼

 

Star Chamber Justice
Experts find the BIA’s treatment of expert witnesses to be unduly harsh!
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

https://www.jeffreyschase.com/blog/2023/7/28/expert-guidance-from-the-first-circuit-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Expert Guidance from the First Circuit

For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable.

However, Immigration Judges are provided remarkably little guidance on how to assess expert testimony. A 2020 decision of the U.S. Court of Appeals for the Ninth Circuit, Castillo v. Barr,1 illustrates the problem. In that case, both the Immigration Judge and the BIA chose to discount the testimony of a qualified country expert because his testimony was not corroborated by other evidence of record. As the Ninth Circuit noted, “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”2 Obviously, this simple, logical rule should have been incorporated in a BIA precedent decision by now.

When attorneys SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire brought an appeal involving this issue with the U.S. Court of Appeals for the First Circuit, our Round Table of Former Immigration Judges was most happy to file an amicus brief in the matter. We used the opportunity to inform the court “how IJs and the BIA need, and lack, a clear standard for whether to admit—and how to weigh— expert evidence.”

Although the court issued an unpublished decision (and explained why it was precluded by Supreme Court precedent from establishing the uniform standard that we had requested), I believe the opinion offers wisdom on the topic that Immigration Judges might find useful in spite of its nonbinding nature. The case name is G.P. v. Garland, No. 21-2002 (1st Cir., July 13, 2023).

Rather than review the entire decision, in the hope of increased convenience, I have instead listed the issues raised in the case that are likely to arise in removal proceedings, and then summarized how the First Circuit addressed each issue.

The recency of the expert’s knowledge:

May an Immigration Judge discount an expert’s country knowledge as “stale” due to the passage of time since the expert’s last visit to the country in question or contact with its government’s officials?

In G.P., the court found no support for such approach where: (1) the record contained no evidence of changed conditions over the period of time in question; (2) the expert testified to the lack of significant changes in country conditions over that same time period; (3) such testimony regarding the lack of significant change went unchallenged by ICE, which did not call its own expert or offer other country evidence to the contrary; and (4) the conclusion was not contradicted by the petitioner.

The basis of the expert’s knowledge

Can an expert’s testimony be discounted for lack of firsthand “knowledge, research, or connections” to the country in question?

In G.P., the court pointed to the BIA’s own precedent decision in Matter of J-G-T- in which the Board adopted the Federal Rules of Evidence standard that an expert’s testimony is reliable when it is “`based on sufficient facts or data’ that the expert `has been made aware of or personally observed’ or from sources that `experts in the particular field would reasonably rely on.'”3

In addition to finding that the IJ had overlooked sources of firsthand knowledge, the court in G.P. found further error in the IJ’s failure to either mention or explain why sources that experts in the field would rely on that were mentioned by the expert in his voir dire, which included crime rates, DEA reports, and U.S. Department of State Country Reports, were not sufficient to credit the expert’s testimony.

The expert’s lack of personal knowledge of a specific criminal organization

Can an expert’s testimony be discredited where the expert lacked personal knowledge of the specific criminal organization that the applicant fears?

In G.P., the court found that the IJ erred in discounting the expert’s testimony for this reason. The court again referenced the Board’s statement in J-G-T- quoted above, and cited another BIA precedent, Matter of Vides Casanova, in which the Board held that an expert “need not have personal knowledge of the facts underlying” their opinion.4

Applying the above BIA guidance, the court observed that the expert witness learned specifics about the organization in question from reading the respondent’s affidavit, and importantly, that the facts contained in the respondent’s testimony and later testified to in court “were never challenged by the government or questioned by the IJ, who found G.P. credible.” The court added that “An expert cannot be ‘undermined by his reliance on facts . . . that have not been disputed’” (quoting from the Ninth Circuit’s decision in Castillo, supra at 1284).

The feared persecutors are based outside of the country of expertise

Can an expert’s testimony about a crime group based in the U.S. be discredited where the witness was qualified as an expert on organized crime in the Dominican Republic?

In G.P., although the group in question was based in New England, connected to a cartel based in Sinaloa, Mexico, and “served as a conduit between the Mexican drug cartels and customers in Northern New England,” the group did not fall outside of the witness’s area of expertise (i.e. organized crime in the Dominican Republic) where the expert testified to the Sinaloa Cartel’s strong presence in the Dominican Republic, influence over government officials there, and treatment of government cooperators.” The court therefore found that the IJ’s statement that the expert lacked direct knowledge of the criminal organization “mischaracterizes the evidence as a whole” and was not supported by substantial evidence of record.

Prior statements of the expert

How should a prior statement of the expert that is offered by ICE be treated by the IJ?

In G.P., ICE introduced a quote from the expert’s 2011 book in which he wrote that he “couldn’t honestly say that torture is something deportees [to the Dominican Republic] should expect.”

However, the First Circuit found error in the IJ’s reliance on the quote, because (1) the quote was in the context of an entirely different set of facts and employed a highly narrow definition of torture; (2) the expert was only asked whether he recalled the quote and to provide its context, and not whether he agreed with it; (3) the quote addressed the general risk of torture faced by deported noncitizens, and not the specific risk faced by G.P.; and (4) the IJ failed to explain why the 2011 book deserved significant weight when it was older than other evidence the IJ found to be stale.

Conclusion

Petitioner’s counsel has moved the First Circuit to publish the decision. But regardless of the outcome, counsel may wish to bring the court’s analysis to the attention of Immigration Judges, who in turn may find it highly useful in navigating the treatment of experts in cases before them.

– –

Hats off to SangYeob Kim and Gilles Bissonnette on their outstanding litigation in the First Circuit, which led to this satisfying decision. Our Round Table is most thankful to attorneys Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Greg Merchant of the law firm of Cooley LLP, for their expert drafting of our amicus brief in this case.

Copyright 2023 by Jeffrey S. Chase. All Rights Reserved.

Notes

  1. 980 F.3d 1278 (9th Cir. 2020).
  2. Id. at 1284.
  3. Matter of J-G-T-, 28 I&N Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703).
  4. Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015). Interestingly, in VIdes Casanova, the country expert had been called by DHS to establish that the respondent was a persecutor of others. Under those circumstances, the BIA in its decision noted that an expert “is permitted to base her opinion on hearsay evidence and need not have personal knowledge of the facts underlying those opinions.”

JULY 28, 2023

Republished with permission

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

The BIA spends far too much time cooking up bogus ways to deny asylum and other forms of protection. This leaves a “vacuum” on providing sound advice and needed guidance for effectively presenting and fairly analyzing the large untapped potential for more grants of protection currently “bouncing around the EOIR backlog” or alternatively being mindlessly rushed through “dedicated deterrence dockets” with neither time for advocates to properly prepare nor opportunity for thoughtful analysis by IJs! It’s a real (totally preventable) “lose-lose” for our justice system and asylum applicants!

Fortunately those from outside EOIR, including Article III Judges, subject matter experts like Judge Sir Jeffrey, and his loyal colleagues in the Round Table 🛡 have stepped in to fill the void.  Wouldn’t it be better (and easier) to just aggressively recruit and hire the right expert, experienced, due-process-focused candidates for EOIR judgeships in the first place?

🇺🇸 Due Process Forever!

PWS

07-30-23

⚖️🗽 TRIPLE HEADER!  — Cornell Immigration Clinic Wins 3 @ BIA!

Professor Stephen Yale-Loehr
Professor Stephen Yale-Loehr
Cornell Law

Professor Stephen Yale-Loehr reports:

Paul: Thanks to the excellent work of our law students, our Cornell asylum clinic received three BIA remands this spring.  A short summary of each case follows.  A longer summary of each case is attached, as well as redacted versions of the BIA’s decisions. If anyone wants redacted copies of our briefs, have them contact me directly.

 

Please mention on Immigration Courtside.  Thanks, Steve

 

1: IES is a citizen of Mexico and a former gang member.  The immigration judge (IJ) denied withholding and CAT relief, holding that his conviction in California was a particularly serious crime and that our client did not meet the requirements for CAT relief. For the particularly serious crime argument, our brief argued that the IJ improperly analyzed IES’ offense, ignored credible evidence that the drugs were for personal use, and relied on boilerplate sentencing documents instead. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense. We used case law where crimes like sexual contact with a minor (Afridi v. Gonzalez) and strangulation (Flores-Vega v. Barr) were remanded because the facts and circumstances of the offense had not been considered.

 

For our CAT argument, we focused on 6 IJ errors: 1) the IJ did not consider that his prolonged mental pain would cause future torture (we had psychological evaluation reports and decided to use them for this argument). This is an underutilized argument in CAT claims, so there isn’t much case law. We used the interpretation from an OLC opinion on prolonged mental harm to bolster this argument. 2) The IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%. 3) The IJ did not consider country conditions and did not admit 400 pages into evidence. 4) The IJ mischaracterized his attempts to flee cartels 8 times as “relocation.” 5) The IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’ complaints. 6) The IJ did not aggregate IES’ risk of torture. The BIA remanded.

 

2: LRG is a citizen of El Salvador who fled to the US in 1989.  While in the US he joined the MS-13 gang. He is in U.S. prison for a criminal conviction. The IJ denied withholding and CAT relief. Our client’s info was part of the November 2022 ICE data leak, but the IJ did not address that concern.

 

Our brief argued that our client is more likely than not to face torture if removed to El Salvador. We posited several theories under which our client is likely to be tortured: 1) by the Salvadoran government, especially if our client is incarcerated there; 2) by Salvadoran gangs, in or out of prison, with the acquiescence of the Salvadoran government; and/or 3) by Salvadoran anti-gang death squads, with the participation or acquiescence of the Salvadoran government. We argued that our client’s identifying characteristics, including his gang tattoos and criminal history, would subject him to targeting and torture by any of these groups. We also argued that the IJ insufficiently aggregated our client’s risk of torture in El Salvador and that the IJ erred by failing to consider the impact of the ICE data leak on our client.  Finally, we argued that the IJ afforded insufficient weight to the evidence offered by our client. The IJ admitted Dr. Patrick McNamara’s universal expert declaration only as background evidence, rather than for his expert opinions. The BIA remanded.

 

3: REC is a citizen of El Salvador who fled to the US in 2022.  REC was not a gang member, but his brother was, and was killed by the police.  REC’s family filed a lawsuit against the police for murdering REC’s brother, and the police retaliated against REC.  The IJ denied asylum, withholding, and CAT relief.

 

On asylum and withholding, we argued that the IJ erred by ignoring the Salvadoran government as a persecutor of REC and by failing to assess the proper particular social group that REC had proposed, based on his membership in his family. On CAT, we argued that the IJ effectively ignored part of REC’s claim by failing to analyze whether the MS gang would be more likely than not to torture him. We further argued that the IJ’s analysis about the Salvadoran government as a torturer of REC was flawed because the IJ herself found that Salvadoran officials “misused their power” when they beat him. We argued that the IJ also erred because she did not aggregate all potential sources of torture, including the government and the MS gang. The BIA remanded.

Stephen Yale-Loehr

Professor of Immigration Law Practice, Cornell Law School

Faculty Director, Immigration Law and Policy Program

Faculty Fellow, Migrations Initiative

Co-director, Asylum Appeals Clinic

Co-Author, Immigration Law & Procedure Treatise

Of Counsel, Miller Mayer

Phone: 607-379-9707

e-mail: SWY1@cornell.edu

Twitter: @syaleloehr

Check out my Green Card Stories book:

http://www.greencardstories.com.

 

See more of my books at amazon.com/author/stephenyaleloehr

You can access my papers on SSRN at: http://ssrn.com/author=109503

Cornell 1 Cornell 2 Cornell 3 Cornell 4 Cornell 5 Cornell 6

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

Get all the details in the six attachments above!

Thanks, Steve! And, congrats and “hats way off” (as my friend Dan Kowalski would say) to the clinic students involved! 

Interesting to contrast the careful work of the clinic with the sloppy, result-oriented work of the IJs in these cases. 

🇺🇸 Due Process Forever!

PWS

07-29-23

⚖️ ATTENTION NDPA LITIGATORS & PROSPECTIVE LITIGATORS! — Join Our Round Table Colleague Judge Carol King & The National Institute For Trial Advocacy (“NITA”) For Training, Sept. 27-29 in NYC!

Honorable Carol King
Honorable Carol King
U.S. Immigration Judge (Ret.)
Member, Round Table of Former Immigration Judges

https://www.nita.org/immigration2023

Carol writes:

I know you are in touch with a lot of young lawyers in the NDPA and wanted to let you know about a wonderful trial skills training I’m involved in.  I’ve been teaching for NITA in trainings focused on trial practice in Immigration Court for a few years now, along with Denise, Eliza, Jeff and others.  This upcoming program in New York is for private counsel and is expensive, but totally worth it for new lawyers (and even experienced lawyers) to hone their trial skills.  Judges appreciate it too!  NITA also does public interest trial skills courses in cooperation with the NLGNIP which are more affordable for lawyers working for non-profits.  If you know any young NDPA lawyers working for firms that can afford this program, I highly recommend it!  Please pass this along to anyone you think would benefit.  Here is the info:

Advocacy in Immigration Matters

.

September 27, 2023 – September 29, 2023

White & Williams LLP

New York, NY

https://www.nita.org/immigration2023

Thanks!

Carol

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Advocacy in Immigration Matters

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White & Williams LLP Times Square Tower, #2900, New York, NY 10036

September 27, 2023 – September 29, 2023

Your Price: $1,945.00

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**Pre-Program Lecture Online scheduled for Friday, September 22, from 12:00 – 1:30 PM EST.**

WHY YOU SHOULD ATTEND

As an immigration defense lawyer, you know that practicing in immigration court is increasingly rife with changes and complexity. NITA recognizes this reality and, in response, has developed Advocacy in Immigration Matters, a specialized and timely program designed to help you rapidly upgrade your skills in representing those facing removal from the United States.

WHAT YOU WILL LEARN

This is the only trial skills advocacy course available that covers everything you will experience during an immigration trial. From pre-trial to trial, you will receive on-your-feet training and guidance that goes beyond a lecture-focused learning experience. During this three-day program, you will:

  • make and meet objections,
  • conduct direct, cross, and re-direct examinations,
  • accredit a proposed expert witness,
  • obtain the required opinion from an expert witness, and
  • offer a concise yet compelling closing argument.

All of this will be done in small groups of your peers, with feedback and at a pace that will help boost your performance.

The instructors—some of the most experienced immigration trial lawyers and judges in the country—will share constructive feedback and specific ideas on how to refine your skills. As you watch your peers perform, you will also absorb the “teachable moments” from their performance and instructor critique, which means each layer of learning is continually reinforced by what you hear, see, and most importantly, do.

After three days, you will be able to step into the courtroom with the confidence and practical skills you need to be a good advocate for your client.

In addition, to supplement this “learning-by-doing,” you will have access to NITA’s trial skills video lectures and watch the faculty demonstrate skills. Furthermore, NITA will offer a pre-program, one-and-a-half-hour session on case analysis that will be foundational to the rest of the program and will ensure that participants seek and present the information most relevant to the assigned particular social group.

In just three days, this Advocacy in Immigration Matters program—as with the other time-tested, premier programming that NITA is known for—will swiftly refine your trial practice, leaving you with greater skill and confidence that shows up where it matters the most: when you stand shoulder-to-shoulder with your client in the courtroom.

NITA’s LEARNING-BY-DOING METHOD

NITA’s learning-by-doing method allows you to take calculated risks without ever jeopardizing your client’s case or your own reputation. It is a safe space to learn and practice. This course will employ the tried-and-true learning-by-doing method by providing ALL participants the opportunity to apply their learned skills as if they are presenting in court. You get to participate and observe, learning not only from your mistakes and triumphs but those of your fellow participants as well.

Expert faculty will provide you with constructive feedback, and you will have the option of recording yourself on your phone, which allows you to see and hear yourself the way judges and juries do. But unlike in a trial where there are real stakes at risk, at NITA you will have the opportunity to correct your mistakes, eliminate any bad habits you may have developed, and refine your trial skills.

When you return to your office, you will feel empowered by having learned skills that will serve you the rest of your career.

WHO SHOULD ATTEND?

You should!

Although some removal defense cases may not go to trial because of prosecutorial discretion, learning and refining your trial skills will translate into better outcomes for your clients.

Honing your trial skills will improve virtually every aspect of the many things you do as a litigator from negotiating with the OPLA assistant chief counsel to convincing the immigration judge to grant your client relief.

YOUR REGISTRATION INCLUDES

  • One-on-one personalized feedback and coaching from NITA faculty
  • Case materials
  • One credit toward the NITA Advocate Designation.

NITA FACULTY

Learn more about each faculty member’s professional background and their NITA webcasts, podcast episodes, publications, and programs by clicking their bio link below.

WHAT ARE PEOPLE SAYING ABOUT THIS COURSE?

“I would highly recommend this course to immigration practitioners. It was especially helpful for me as someone who began practicing during COVID, but I could see that the skills would also be useful to practice for more experienced practitioners. The course was 100% worth it and I came out of it feeling more confident in my ability to do defensive work.” — NITA – NIPNLG “Advocacy in Immigration Matters” course attendee (August 2022)

“This was literally the most useful training I’ve had in the legal field, including law school, internships and many other PD opportunities I’ve tried to take advantage of. I think in the legal profession, there’s such an emphasis on being right and being prepared that we have a hard time taking risks and messing up. Even in trainings and simulations, I participated very little because I felt like there was this very high amount of minimum knowledge that I needed, didn’t have, and didn’t know how to get. I guess I figured everyone had learned this in debate or Model UN, which I never did. But somehow, the instructors created this baseline understanding that we’re there to learn, we can start from zero, and messing up is welcomed because it shows we’re taking risks. I feel much more ready to work on my cases. What’s more, in a field where burnout is so high, I feel excited to prep for trial now.” — Advocacy in Immigration Matters online course attendee (April 2022)

“In the over twenty years I had the honor to serve as an immigration judge, I frequently saw attorneys who, although bright, dedicated and familiar with their clients’ cases, had very limited understanding of evidentiary rules, proper forms of direct and cross-examination, effective storytelling, and the art of closing argument. These basic trial skills are not usually part of a law school curriculum, and once engaged in the practice of law most attorneys do not take the time to develop or hone their skills, other than by “trial and error,” which is, sadly, sometimes at the expense of their clients. The NITA program provides a unique opportunity to develop these extremely important skills. I encourage those who are seeking to represent asylum seekers in Immigration Court to consider taking advantage of this unique and valuable opportunity.” — Hon. Eliza C. Klein, United States Immigration Judge (Ret.)

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Every dollar you give to The NITA Foundation helps a public service lawyer receive advocacy training that would otherwise be out of reach.

DONATE TODAY

FACULTY

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Carol King

Solo

Carol M King Law Office

BIO

Michelle Mendez

Director of Legal Resources and Training

National Immigration Project of the National Lawyers Guild Inc

BIO

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Tom Swett

Attorney at Law

SWETT LIMITED

BIO

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Victoria Neilson

Supervising Attorney

National Immigration Project of the National Lawyers Guild Inc

BIO

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This is truly an All-Star Faculty of folks who have “walked the walk,” saved many lives, and changed countless futures for the better over their distinguished and varied careers!

I have worked with NITA on developing and presenting advocacy training for VIISTA Villanova. This is a collection of “total pros” dedicated to making America’s courts function at the highest possible level.

Also, as you know from reading publications like LexisNexus, ImmigrationProf Blog, The Jeffrey Chase Blog, and Courtside, LITIGATION MATTERS! Every week, we alert our readers to successful efforts that are having a real life impact and literally changing the face of American law!

🇺🇸Due Process Forever!

PWS

07-27-23

🏴‍☠️ ADMINISTRATIONS CHANGE, BUT SCOFFLAW MISTREATMENT OF ASYLUM SEEKERS DOESN’T — US District Judge Jon S. Tigar Blows Away 💨 Biden Administration’s Bogus Asylum Rules — Again! — Round Table 🛡⚔️ Weighs In On Winning Side — Again! — Order Delayed Pending Filing of Appeal, So The Carnage Continues for Now!☠️

Border Death
Dem A.G. Merrick Garland’s indifference to asylum laws, racial justice, due process, and the reality of seeking asylum at the border has become astoundingly grotesque!                                This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
n order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

 

EBSC III MSJ order

Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.

District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.

From Judge Tigar’s order:

“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…

The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

The order is stayed for 14 days to allow the government to appeal.

Our group has once again helped make a difference in providing fairness and due process. Congrats to all.

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

Congrats to the plaintiffs and to my Round Table colleagues!

This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it. 

Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?

How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:

While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.

See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16

16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).

Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!” Why is it coming from a Dem AG?

🇺🇸Due Process Forever!

PWS

07-25-23

🇺🇸⚖️🌟 NDPA ALL-STAR PROFESSOR PAULINA VERA NAMED ONE OF LAWYERS OF COLOR’S INAUGURAL “WONDERFUL WOMEN!”

 

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The Jacob Burns Community Legal Clinics at The George Washington University Law School

The Jacob Burns Community Legal Clinics at The George Washington University Law School

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Professor Paulina Vera has been named one of Lawyers of Color’s inaugural “Wonderful Women,” which recognizes dynamic women attorneys working in law firms, companies, and government agencies who show promise in their careers and demonstrate a strong commitment to advancing diversity in the legal profession! If you’re interested, the press release can be found here: https://lnkd.in/gGAC-85F

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Paulina Vera
Paulina Vera
GW Law Faculty Profile

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Congratulations again, Paulina, my friend! So well deserved!  Can’t wait to see you on the bench @ EOIR, some other Federal Judgeship, or another high-level leadership position. 

Paulina was a (Legacy) Arlington Immigraton Court Intern and a “charter member” of the NDPA!

🇺🇸 Due Process Forever!

PWS

07-24-23

🦃 HOKIE HERO! — VA TECH HONORS NDPA ALL-STAR TEA IVANOVIC OF IMMIGRANT FOOD! — Industry Leader Spotlight — “Disruptive Food Startup Incorporates Gastronomy and Advocacy”

 

https://www.vt.edu/content/link_vt_edu/en/aluminate/profiles/tea-ivanovic.html

Resources for

INNOVATION AND PARTNERSHIPS

Téa Ivanovic ’14

Tea Ivanovic
Tea Ivanovic
Co-Founder
Immigrant Food
PHOTO: VA Tech

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TÉA IVANOVIC ’14

Co-Founder, Immigrant Food

I’m a co-founder and Chief Operating Officer of Immigrant Food, a Washington D.C.-based restaurant startup that ‘marries’ innovative gastronomy with social advocacy. Immigrant Food currently has three locations in the D.C. area, and has received notable recognitions (Fast Company’s World Changing Ideas 2019, Ayuda’s Advocate of Change Award 2022, etc) for its innovative cause-casual model of integrating a social justice component into the business model since inception. I also moonlight as a commentator at Altamar, a well-respected independent international affairs podcast.

Where you’ve been in your career and where you are going…

My professional career includes creating and implementing strategic communications for international policy and politics at a Washington D.C. think tank, and global financial matters at a financial public and media relations firm. I was the first Washington Correspondent for Oslobodjenje, one of the oldest and most prominent news outlets in the Balkans. I was born in Belgium to parents from the former Yugoslavia and recruited to the United States by Virginia Tech’s Division 1 Varsity tennis team. I graduated with a master’s degree from the Johns Hopkins’ School of Advanced International Studies (SAIS). In 2022, I was named on the prestigious Forbes 30 Under 30 List, Washington Business Journal’s 25 Women Who Mean Business, FSR’s 40 Restaurant Stars on the Rise, and DC Fray’s 8 Trailblazing Women in Hospitality.

How would you capture the essence of your work in a newspaper headline…

Disruptive Food Startup Incorporates Gastronomy and Advocacy

How Virginia Tech equipped me for the ‘real world’…

The experience of having met people from around the world (and around the U.S.) who were fellow students, and having played tennis on a competitive varsity team dealing with the ups and downs of winning and losing, gave me a taste of the complexities of the real world. I’m so grateful for that.

A key habit, practice, or skill that’s worth the effort…

Waking up early and visualizing your day. Preparation is a huge part of getting things done, and keep going.

Biggest misconception about my job or industry…

I think the hospitality industry often gets a reputation of hard work for minimal pay – and many people almost look down upon servers or line cooks. In fact, the restaurant workers are some of the most resilient, intelligent and dynamic people out there!

My favorite quote…

“If you don’t like something, change it. If you can’t change it, change the way you think about it.” — Mary Engelbreit

My hidden talent…

Remembering people’s birthdays

 

The work project/initiative you’re most excited about…

Immigrant Food is my passion project, and I’m excited to see where we go from having grown to three locations in Washington, D.C. during the pandemic. We opened in November 2019, just mere months before the pandemic hit. Through hard work and dedication we managed to expand, and we are looking to continue growing in the years ahead.

Fondest Virginia Tech memory or tradition…

Jumping at Enter Sandman, duh!

Best part of being a Virginia Tech alum…

The vast alumni network, and always being able to call Blacksburg home!

Words of encouragement to a current Virginia Tech student…

Virginia Tech is a special place. Cherish the experiences, challenge yourself, and expand your network. The moments don’t last forever, but you’ll always look back at the memories you made and the lessons you learned.

A cause I’m most passionate about…

Immigration, of course. It’s the reason I’m here, and it’s the reason America is one of the greatest countries in the world.

Last book I read…

Adultery, Paulo Coelho

If I had a superpower, it would be…

Being invisible. Not because I want to hide – just imagine all the awesome places I could witness!

The most formative experience I’ve had…

Dealing with people who don’t believe in me. You think about the mentors in your life, the advisors and the incredible people who have shaped you. But I’m also grateful to those who have challenged me, who didn’t believe in me, who may have even tried to tear me down. I’m so much stronger because of them. I may not have realized it at the time, but those experiences are some of the most formative of my entire life.

Additional Links

Media Contact:

Lindsey Haugh (540) 231-6959

lhaugh@vt.edu

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Way to go Tea!  You Are amazing!

🇺🇸 Due Process Forever!

PWS

07-22-23

 

👎🏼 EOIR’S 3-DECADE QUEST TO DENY PROTECTION TO COPTIC CHRISTIAN ENDS BADLY IN 3RD CIR. — BIA Applies “Overly Rigorous Standard” & Fails To Recognize A Prima Facie Case For Asylum In Latest Blow To DOJ’s “Asylum Wrecking Crew!” 🏴‍☠️

 

Four Horsemen
BIA Asylum Panel In Action — Asylum experts and advocates question the wisdom of the BIA’s “take no prisoners” approach to asylum!
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www2.ca3.uscourts.gov/opinarch/212957np.pdf

Gebra v. A.G., 3d Cir, 07-19-23, unpublished (unfortunately)

PANEL: AMBRO, RESTREPO, FUENTES, Circuit Judges

OPINION: JUDGE RESTRO

KEY QUOTE:

i. The BIA applied an overly rigorous standard to the new evidence.

Gebra argues that the BIA applied an “overly rigorous standard” when analyzing the new evidence presented when determining whether he established a new claim. Pet’r Br. 44 (citing Tilija v. U.S. Att’y Gen., 930 F.3d 165 (3d Cir. 2019)). In Tilija, we held that unless the new evidence is inherently unbelievable, it must be taken as true. 930 F.3d at 172; see also Shardar, 503 F.3d at 313 (“Facts presented in the motion to reopen

are ‘accepted as true unless inherently unbelievable.’”) (cleaned up). If the BIA fails to accept new evidence as true, then it applies an “overly rigorous standard.” Tilija, 930 F.3d at 172. Furthermore, not accepting such evidence as true is an abuse of discretion if the petitioner would have established a prima facie case for eligibility with the rejected evidence. Id. (citing Shardar, 503 F.3d at 313).

Here, the BIA did not find that the new evidence was inherently unbelievable but nevertheless refused to accept new evidence, such as Gebra’s medical report after the 2009 attack, as “persuasive” or true because it “provide[d] little specificity or detail with respect to the alleged attack.” JA4; cf. Tilija; 930 F.3d at 172 (finding that where the BIA asked for “more details” and questioned the veracity of the evidence, it impermissibly failed to accept the evidence as true). By requesting that the medical record, on its own,

corroborate that the injuries were caused by “Islamic fanatics,” the BIA imposed an

overly rigorous standard. JA4; Tilija, 930 F.3d at 172. Similarly, the BIA’s conclusion that the report from the Egyptian Union of Human Rights Organization (“EUHRO”) pro- vides “no details” with respect to when, where, how, nor “any other details surrounding the circumstances of the alleged incident,” was an abuse of discretion. JA4; Tilija, 930

11

F.3d at 172. The BIA treated the new evidence with the same “overly vigorous standard” that it applied to the new translation of the 1993 police report that was previously dis- credited.

Having concluded that the BIA held Gebra to an excessively rigorous standard, we next determine whether Gebra established a prima facie case for asylum.

ii. Gebra’s new evidence established a prima facie case for asylum.

Gebra’s new evidence, accepted as true, establishes a prima facie case for asylum. A motion to reopen an asylum case must establish prima facie eligibility for relief. Se- voian v. Ashcroft, 290 F.3d 166, 173, 170–71 (3d Cir. 2002). This standard requires an applicant to produce objective evidence that shows a “reasonable likelihood” that they can establish eligibility for relief. Id. at 173. In this context, to “establish” means that the evidence in favor of asylum outweighs the evidence against. Guo v. Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004), as amended (Dec. 3, 2004). A “reasonable likelihood” merely means showing a realistic chance that the applicant can later establish that asylum should be granted. Id. Prima facie “would lack meaning” if it required that evidence submitted at the prima facie stage conclusively establish eligibility for asylum. Id. Thus, Gebra need only provide objective evidence that shows a reasonable likelihood that he is

entitled to asylum relief. Tilija, 930 F.3d at 172. Specifically, Gebra would need to

demonstrate that he suffered past persecution, or has a well-founded fear of future perse- cution, on account of his religious beliefs. 8 U.S.C. § 1158(b)(1)(B) (enumerating reli- gion as a protected ground).

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Here, Gebra provided objective evidence in the form of medical records and hu- man rights reports regarding his 2009 attack. For example, a December 8, 2009, medical report from Victoria Hospital in Egypt corroborates the statement in his affirmation that, due to the attack, he was “wounded and sent into the Victoria Hospital due to multiple contusions and dermal bleeding on [his] back and different parts of [his] body.” JA167, 175; see Doe v. U.S. Att’y Gen., 956 F.3d 135, 145 (3d Cir. 2020) (holding that a single

beating, “if sufficiently egregious,” may constitute persecution, such as where petitioner was beaten by a mob, causing him to bleed and suffer injuries to his head and back). Ge- bra also included medical reports of the psychological trauma he experienced and therapy sessions he attended as a result of the attacks. Doe, 956 F.3d at 145–46 (“Persecution may be emotional or psychological, as well as physical.”) (citation omitted). Further- more, the December 30, 2009, report from EUHRO stated that they independently “veri- fied” Gebra was “attacked by some [Islamic] fanatics” who thought Gebra was behind demonstrations for the rights of Coptic Christians due to his work as a cameraman for Fa- ther Zacharia Botros, a Coptic Christian priest known for critiquing Islam. JA173.

Taken together, this evidence demonstrates a reasonable likelihood that Gebra could es- tablish he was persecuted due to his religious beliefs.

In sum, the BIA abused its discretion when it did not accept Gebra’s evidence ask true and concluded that he did not establish a new claim for asylum in his third motion to reopen.

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

Let’s apply a tiny bit of common sense here, in contravention of the BIA’s current practices. How likely is it that a guy would pursue asylum claims for 30 years, even after being denied, deported, and actually persecuted in Egypt upon return, if there weren’t some merit in the claim? At least enough to earn him a new hearing! It’s not rocket science to know that Coptic Christians often face persecution in Egypt! Was it really wise to push this clearly flawed (one could say “scofflaw”) denial all the way to the Circuit, thus wasting even more time and further undermining the BIA’s credibility? What are they thinking at Garland’s DOJ?

Think what efficiencies, not to mention due process and fundamental fairness, a BIA of well-qualified judges who were actual experts in asylum law — focused on legal protection, not specious rejection — could bring to our broken asylum system! Why not give due process and justice a chance at DOJ?

🇺🇸 Due Process Forever!

PWS

07-21-23

🇺🇸🗽 INSPIRING AMERICA: Dreamer Viridiana Chabolla “Pays It Forward” — Big Time! — “How can I help aside from placing my hopes in a Congress that is more concerned about building borders than dealing with these issues?”

 

Viridiana Chabolla ’13, who was brought to the U.S. from Mexico at 2 years old, on the day she became a U.S. citizen in 2021.
Viridiana Chabolla ’13, who was brought to the U.S. from Mexico at 2 years old, on the day she became a U.S. citizen in 2021.
PHOTO: Pamona College Magazine

https://magazine.pomona.edu/2023/summer/all-the-way-to-the-supreme-court/

Carla Maria Guerrero writes in Pomona College Magazine: 

There are not a lot of big wins for Viridiana Chabolla ’13 in her line of work. It’s not for a lack of trying, or a lack of sweat and tears. Her commitment has been tested over the years but she remains determined. Chabolla is an attorney working in immigration law. The landscape is grim, she says. It can be heartbreaking. Demoralizing. She’s not just an attorney. She is an immigrant, too, and for most of her life she was undocumented.

In February, the Los Angeles Times wrote a story about one of her recent clients. Leonel Contreras, a U.S. Army veteran, was a legal permanent resident before being deported to Mexico after serving time for a nonviolent crime. Contreras had grown up in the U.S., but after his deportation he worked and lived in Tijuana for at least a decade before the Immigrant Defenders Law Center in Los Angeles took his case and Chabolla helped him return to his family members in California. He became a U.S. citizen earlier this year.

“It’s really nice to wave an American flag at a naturalization ceremony,” says Chabolla, who began working at the Immigrant Defenders Law Center (ImmDef) in October 2021. “Immigration law is so harsh and when it’s not harsh, it’s just not helpful. It’s hard to have a win. When you have those moments, you have to grab on and make them last.”

Chabolla was born in Guanajuato, Mexico. Her mother came to the U.S. to escape a bad relationship and start a new life. A 2-year-old Chabolla and the rest of her mother’s family joined her soon after. Chabolla grew up with her grandparents, aunts and cousins all living close to each other in East Los Angeles. “I’d remember seeing my mom and aunts getting ready for work at ridiculous hours of the day,” she says of the early-morning hubbub. “I remember always being surrounded by people and conversations. There were a lot of disagreements but a lot of love.”

When she was 11, Chabolla met a group of lawyers who worked in East L.A. Although she didn’t know what exactly they did, she recalls thinking that they seemed to hold a lot of power. They seemed to have some kind of authority to help her and others like her—people who were not born in the U.S.

It was during Chabolla’s junior year at Pomona that the Obama administration established an immigration policy that changed her life. Deferred Action for Childhood Arrivals (DACA) allowed certain immigrants who were brought to the U.S. as children to receive a renewable two-year period of deferred action from deportation and also become eligible for a work permit.

For the first time, Chabolla was able to have a job on campus. She saved her first pay stub. It wasn’t much in terms of money, but it was significant for Chabolla.

With DACA, Chabolla’s future seemed a bit brighter. She could now apply for jobs after graduation. Her first work after Pomona was as an organizer with the pro bono legal services nonprofit Public Counsel, a choice that set her on a course for a win of historic proportions.

For four years, Chabolla took down the stories of plaintiffs for cases being handled by Public Counsel. As time passed, she began to feel more empowered to share her immigration status with her director, Mark Rosenbaum, even as the national political landscape was transitioning from an Obama presidency to a Trump one.

“When Trump was elected, I broke down,” she says. She remembers Rosenbaum calling her to tell her she didn’t have to go to work the next day: “Go be with your family, go through your emotions,” he told her.

“We didn’t know what Trump would do first. We just hit the ground running,” says Chabolla, who worked on the defense case for Daniel Ramirez Medina, the first person to have his DACA permit taken away. “With everything going on, we focused on putting out fires. Trump wasn’t taking out DACA in one go just yet. He was creating all of this panic everywhere first.”

Her time at Public Counsel rekindled Chabolla’s original interest in law.

“I kept thinking of the best way I could help others. I loved the idea of gaining new knowledge, and a degree in law would allow me to have a sense of power,” she says. The attorneys at Public Counsel, like her boss Rosenbaum, not only practiced law and led big cases but they also wrote articles and taught university-level courses.

In September of 2017, the Trump administration announced it was officially rescinding DACA. Chabolla had just started at the UC Irvine School of Law. Her initial response was to focus on school and wait.

Then Chabolla got a call from Rosenbaum. “He called me to be a plaintiff in a case against the United States. I felt terrified.”

Chabolla phoned her mother and her family. “If I shared my story, I would have to share their story,” she says. She also was married by then and discussed the possible ramifications with her husband.

Her family was supportive. Chabolla felt compelled to help.

The Public Counsel lawsuit led by Rosenbaum was filed as Garcia v. United States. As it made its way through the higher courts, it was merged with four other cases and ultimately became known as Department of Homeland Security v. Regents of the University of California by the time it reached the U.S. Supreme Court.

As a plaintiff in the case, Chabolla shared her story with a lawyer for a written declaration. While she never testified before any judges, she did have to share her immigration story multiple times as the case garnered national media attention.

On June 18, 2020, the Supreme Court delivered its 5-4 decision blocking the Trump administration’s elimination of DACA. Chabolla was in Washington for the hearing. “A few of us got to go inside,” she recalls. “Some DACA students were there, too. And it was really powerful. These justices were hearing arguments on this huge case…but I know maybe for them all cases they hear are huge. But we occupied half the room and that was really powerful and really unusual.”

Chabolla took notes during the hearing. “I remember writing down something that Justice [Sonia] Sotomayor said: ‘This is not about the law; this is about our choice to destroy lives.’

“So much of what Trump did was done without following administrative law,” explains Chabolla about how they “won” this case. “Trump didn’t follow procedure,” she says. “If they had taken their time and done it right, it would have passed. But I remember taking the win.”

Chabolla, who had just recently become a U.S. resident through marriage, remembers feeling relief for the DACA community.

“The DACA victory in the Supreme Court is a testament to the vision, commitment and tireless efforts of many, and Viri’s name would surely be at the top of that list,” says Rosenbaum. “I had the privilege of working with Viri at Public Counsel, first as an organizer…and then to come forward as a plaintiff in Garcia to inspire others to do the same and make the case that our nation needs DACA recipients to build a kinder and more inclusive community for all of us.”

Upon returning home, Chabolla once again focused on school—it was her second-to-last semester at UC Irvine. She spent a year as a graduate legal assistant with the Office of the Attorney General for the California Department of Justice. It was a tough gig for a newly graduated lawyer. After one year, she left for her current job as a staff attorney at ImmDef, a legal services nonprofit with a post-conviction unit that drew her interest. “They take on clients who have criminal convictions like possession of marijuana from 40 years ago with deportation orders—deportation is not a fair punishment for everyone.

“Many of our clients have been living here as legal permanent residents for more than 20 years. Most find out they’re getting deported just when they’re going to be released,” she says. “The statistics show that immigrants commit fewer crimes than the general population and our clients have already served their time—in jail, or prison, they’ve paid their dues and they’ve even paid their fines. Adding deportation is a way of saying ‘I don’t like that you’re an immigrant.’ It’s extra punishment.”

The work is tough. “My supervisor has shared that sometimes we have to redefine what a win is,” says Chabolla. “It makes up partially for the times when we have a clinic and all these people show up thinking they can apply for residency when they actually can’t.”

She says that the immigrants she talks to are so full of hope. They believe that an attorney—like herself—can do it all. “Every situation is different. No lawyer has a miracle cure.

“It’s heartbreaking to know how many people are becoming elders who don’t have a nest egg, who paid taxes into the system but they can’t access Social Security, can’t access Medicare,” Chabolla adds. “It’s something I’ve been thinking a lot about in the past two years: How can I help aside from placing my hopes in a Congress that is more concerned about building borders than dealing with these issues?”

In 2021, Chabolla became a U.S. citizen. The day was bittersweet and laden with guilt. “It was one of those moments where I felt I was further abandoning my undocumented community, but I know that’s not true,” she says. Although her mother recently became a U.S. resident, some of her family remains undocumented.

Chabolla says she’s been able to find some balance as an ally who was once directly impacted by immigration policies. “I’m trying to find a place where I can remain hopeful in my job and be a zealous lawyer and advocate.”

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

Congrats and way to go Viri! You have already established yourself as a “New Generation Leader” of the NDPA! Awesome! 

For years, the GOP has been mindlessly blocking various versions of DACA, at a great human cost as well as a huge cost to our nation. Dreamers who are able to achieve citizenship, without special help from Congress, and other “New Generation” members of the NDPA must follow the lead of Rep. Hillary Scholten (D-MI) by getting into the “power structure” and forcing long overdue progressive changes. 

Thanks to Chief Justice Roberts, the Supremes got this one right, barely 5-4. One vote has made a huge difference in literally hundreds of thousands of lives, and helped to shape American’s future for the better. By contrast, the Trump Administration’s failed attempts to undo this important program was a disgraceful abuse of Government resources! The inability of GOP-controlled states to let this issue go — essentially too keep bullying and threatening some of the most productive and deserving members of our society — is beyond disgusting.

🇺🇸Due Process Forever!

PWS

07-20-23