Persecution – Page 67 – immigrationcourtside.com

“INEXCUSABLE OMISSIONS” — 4th Cir. Slams BIA For Unjustified Denial Of Family-Based Gang Threat Asylum Claim From El Salvador — BIA’s Shoddy Factual & Legal Analysis Of “One Central Reason” Exposed — ZAVALETA-POLICIANO v. SESSIONS!

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ZAVALETA-POLICIANO v. SESSIONS, 4th Cir., as amended 09-18-17 (Published)

PANEL: GREGORY, Chief Judge, WILKINSON, Circuit Judge, and DAVIS, Senior Circuit Judge

OPINION BY: Chief Judge Gregory

KEY QUOTE:

“We hold that the BIA abused its discretion in affirming the IJ’s clearly erroneous factual finding. To start, the IJ unjustifiably relied on the fact that the threatening notes themselves did not explain why Zavaleta Policiano was targeted. As this Court recently explained, the single-minded focus on the “articulated purpose” for the threats while “failing to consider the intertwined reasons for those threats” represents “a misapplication of the statutory nexus standard.” Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017). It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone. The IJ’s heavy reliance on the fact that El Salvadoran gangs target various groups of people in the country was similarly misguided. That “the criminal activities of MS-13 affect the population as a whole,” we have explained, is simply “beside the point” in evaluating an individual’s particular claim. Crespin-Valladares, 632 F.3d at 127.

More fundamentally, the IJ and BIA failed to appreciate, or even address, critical evidence in the record. It is this Court’s responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009). The IJ did discuss the threatening notes (although while drawing unwarranted conclusions, as discussed above). But the IJ failed to address, or to assign any weight to, the significant body of unrebutted, indeed, undisputed, probative evidence giving meaning and context to the threatening notes: (1) Zavaleta Policiano and her father’s stores, as well as their familial relationship, were well-known in the community; (2) MS-13 threatened Zavaleta Policiano several times by phone; (3) Zavaleta Policiano’s statement that MS-13 “threatened me because my father had left;” and (4) the threats against Zavaleta Policiano began immediately after her father fled to Mexico. These are inexcusable omissions in the agency’s analysis.

The Government asks us to reject much of the overlooked evidence, characterizing it as Zavaleta Policiano’s “subjective beliefs [] as to the gangs’ motives.” Appellees’ Br. 22–23. This argument does not explain away the IJ’s and BIA’s wholesale failure to discuss the evidence, however. See Ai Hua Chen v. Holder, 742 F.3d 171, 179 (4th Cir. 2014) (explaining that the IJ and BIA must “offer a specific, cogent reason for rejecting evidence” (quoting Tassi, 660 F.3d at 720)). What is more, Zavaleta Policiano’s affidavit includes much more than her “subjective beliefs”—it contains key evidence of the context, nature, frequency, and timing of the gang’s threats against her and her family. By stipulating to the credibility and veracity of the affidavit, the Government forwent the opportunity to probe and weaken the evidentiary basis of Zavaleta Policiano’s claims.

When considering the unchallenged record evidence, we are compelled to conclude that Zavaleta Policiano’s familial relationship to her father was “at least one central reason” MS-13 targeted and threatened her. The evidence shows that MS-13 explicitly threatened to kill Zavaleta Policiano’s father and his family if he did not pay the extortion demands, and that “[i]mmediately after” he fled El Salvador, the gang began threatening Zavaleta Policiano. A.R. 210. The timing of the threats against Zavaleta Policiano is key, as it indicates that MS-13 was following up on its prior threat to target Barrientos’s family if he did not accede to the gang’s demands. This explanation appears especially probable given the absence of record evidence that Zavaleta Policiano was ever threatened before her father’s departure. Beyond the timing, Zavaleta Policiano’s affidavit outlines the well-known relationship between the two businesses and the Policiano family, and contextualizes her statement that she was threatened because her father left. And just as MS-13 threatened Zavaleta Barrientos and his children, the gang threatened Zavaleta Policiano and her children, suggesting a pattern of targeting nuclear family members. The totality of this undisputed evidence demonstrates that Zavaleta Policiano was persecuted on account of her family membership.

We add that the BIA’s attempt to distinguish our precedent is unpersuasive. The BIA found, in a single sentence without any analysis, that Zavaleta Policiano’s claim is distinct from the one at issue in Hernandez-Avalos. A.R. 4 (mentioning Hernandez- Avalos, 784 F.3d at 949–50). But that decision actually bolsters Zavaleta Policiano’s position. There, the BIA denied asylum to a mother who was threatened by an El Salvadoran gang after she refused to allow her son to join the gang. The BIA held that the mother was not threatened on the basis of familial ties, but rather “because she would not consent to her son engaging in a criminal activity.” Hernandez-Avalos, 784 F.3d at 949 (citation omitted). In other words, the BIA determined that the gang’s threats against the mother were motivated by its desire to recruit the son. This Court rejected that “excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. We instead found that the nexus requirement was satisfied, explaining that the mother’s relationship “to her son is why she, and not another person, was threatened with death if she did not allow him to join [the gang].” Id. at 950. The same logic applies here. MS-13 warned Zavaleta Barrientos that it would target his family if he did not pay the extortion demands, and the gang in fact threatened Zavaleta Policiano immediately after her father left. Zavaleta Policiano’s relationship to her father is why she, rather than some other person, was targeted for extortion.

For all the reasons outlined above, we conclude that the BIA erred by affirming the IJ’s clearly erroneous finding. Zavaleta Policiano was not required to prove that the gang’s threats were “exclusively” motivated by her family ties—such “a requirement defies common sense.” See Cruz, 853 F.3d at 130. She only needed to show that the relationship with her father was “at least one central reason” MS-13 threatened her. Because Zavaleta Policiano made this showing, we find the BIA decision to be manifestly contrary to law and an abuse of discretion. See Hernandez-Avalos, 784 F.3d at 953 n.10. By establishing that she was persecuted on account of her family membership, Zavaleta Policiano has satisfied the first two requirements of her asylum claim.”

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Read the complete decision at the above link.

“Inexcusable” describes how the Immigration Courts under the BIA’s defective leadership are skewing facts and law to deny protection to Central American refugees. Not everyone can get a great lawyer like Tamara Jezic, and not every Circuit Court is as conscientious as this Fourth Circuit panel. That means that many of those Central Americans being railroaded through the system by DHS and EOIR are being improperly denied protection.

How can Federal Courts including the Supremes justify continuing to give “deference” to an appellate body that possesses neither expertise in the law nor care in reviewing records? It’s clear that BIA appellate review has become highly politicized and biased against asylum seekers. How much more of this nonsense are the Federal Courts going to put up with?

It also appears that the term “excessively narrow reading” is a perfect description of the BIA’s recent precedent in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), in which the BIA tortured the law to come up with a way of denying most family-based claims. Will the Fourth Circuit “call out” the BIA on this attempt to evade the law by denying family-based asylum claims?

We need an independent Article I Immigration Court!

Thanks and congratulations to respondent’s attorney Tamara Jezic for alerting me to this important decision.

PWS

09-18-17

FORMER DHS SEC MIKE CHERTOFF TELLS HOW CUTTING REFUGEE ADMISSIONS HURTS AMERICA AND ENDANGERS NATIONAL SECURITY!

https://www.washingtonpost.com/opinions/cutting-refugee-admissions-hurts-americans-heres-how/2017/09/14/c7c8b5e6-9987-11e7-b569-3360011663b4_story.html?utm_term=.268b590d8b01

Chertoff writes in the Washington Post:

“President Trump will make another decision this month that will affect thousands of people: How many refugees will the United States admit in fiscal year 2018?

The president already cut refugee admissions by more than half this year, from more than 100,000 down to 50,000. By way of comparison, the highest ceiling under President Ronald Reagan was 140,000. The president has also signaled, through his executive orders and in his budget proposal, that these cuts will carry over to next year. And in fact, some in his administration are trying to convince him to cut even further.

This would be a mistake. Cutting refugee admittances would not only be a moral failure but also damage our national interest abroad and our economy.

Of course, security is an imperative, and the refugee resettlement program is secure. U.S. security and intelligence agencies conduct multiple reviews on every refugee admitted, and only those approved for admission by the Department of Homeland Security are granted refuge in the United States.

There is also the humanitarian imperative: We are in the midst of the greatest refugee crisis on record, with more than 22 million people seeking safety from violence, conflict and persecution all over the world. The vast majority of refugees — nearly 90 percent — are hosted by poor and middle-income countries. Only the most vulnerable — those whose safety cannot be assured in their countries of first refuge — are selected for resettlement. For these refugees — widowed women; orphaned children; survivors of rape, torture and brutal religious persecution — refugee resettlement is a lifeline.

But what’s in it for the United States?

Strategic allies located near crises host the largest refugee populations in the world. Jordan, Turkey, Pakistan and Kenya are among the top refugee-hosting states. Their willingness to host millions of refugees contributes greatly to regional stability and security, all in regions where U.S. troops are deployed. As our military works to contain terrorist insurgencies in Afghanistan, Iraq, Syria and the Horn of Africa, forcing refugees to return to unsafe and unstable countries would make countering terrorism more difficult.

That’s why in 2016, when the Kenyan government threatened to close the Dadaab refugee camp and forcibly return more than 250,000 Somalis to an unstable Somalia, then-Secretary of State John F. Kerry got on a plane to Kenya. It’s also why the United States should be concerned that more than 700,000 Afghan registered and unregistered refugees have been returned to Afghanistan since 2016 — a threefold increase from 2015 — at a time when growing instability in Afghanistan and terrorist gains are forcing an increase in U.S. troop levels.

If we’re not willing to do our fair share, how can we ask front-line allies to do more?

Maintaining resettlement commitments is also critical to our military, diplomatic and intelligence operations abroad. Tens of thousands of Iraqi and Afghan nationals have put their lives on the line to support intelligence-gathering, operations planning and other essential services. Terrorist groups openly target these individuals because of their cooperation with Americans. Resettlement is instrumental to ensuring their safety — a testament to the U.S. military’s commitment to leave no one behind on the battlefield.

And in a proud American tradition, Republican and Democratic presidents have used refugee admissions to signal support for those who reject ideologies antithetical to U.S. values. In the past few decades, we have raised our admissions ceilings to take in those fleeing communist uprisings, religious persecution and tyranny.

Today, the United States must provide unwavering support for Muslims who put their lives at risk to reject terrorist ideologies, many of whom refused to join or be conscripted into terrorist groups, militias and state security forces persecuting their fellow citizens. The Islamic State considers all those who flee its rule as heretics subject to execution. Those who risk their lives — and their children’s lives — to reject terrorism must know, as a matter of our fight against extremism, that the United States supports and welcomes them.

Even in the wake of 9/11, the worst terrorist attack in our country’s history, President George W. Bush deliberately and explicitly maintained a refugee admissions ceiling of 70,000 annually, affirming the United States’ great humanitarian tradition.

Finally, refugees enrich and are deeply supported by our communities. Hundreds of mayors, faith leaders and business leaders have attested to the contributions refugees make. Thousands of Americans donate volunteer hours, in-kind goods and services, and private dollars to support refugees. One study estimates only 39 percent of the costs of resettlement are covered by federal dollars.

Despite being among the most vulnerable and destitute when they arrive, refugees thrive. Entrepreneurship among refugees is nearly 50 percent higher than among U.S.-born populations, creating jobs for Americans. More than 57 percent of them are homeowners.

Our values and our national security interests argue for raising our refugee ceiling, not lowering it. The president should seize the mantle of Reagan and fortify U.S. leadership on refugees.”

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I’ll admit to not always being a Chertoff fan. In particular, his failure to support internal efforts to institute a strong prosecutorial discretion program at ICE that would have empowered the Chief Counsel to control the Immigration Courts’ growing docket was unfortunate, given his legal and judicial background.

But, I agree with what Chertoff says here. Just compare the power, logic, and moral authority of his statement with the mealy-mouthed, cowardly, morally vapid lies flowing from the mourths of xenophobic, disingenuous, fear mongers like Jeff “Gonzo Apocalypto” Sessions, Stephen Miller, Steve Bannon, Rep. Steve King, and the rest of the White Nationalist crowd!

Refugeees make America great! White Nationalist xenophobes, not so much!

PWS

09-15-17

WELCOMING REFUGEES SHOULD BE A “NO BRAINER” FOR U.S. — What Does That Say About What’s Between The Ears Of Pols Who Vilify Them & Seek To Slash Legal Admissions?

https://www.nytimes.com/2017/09/14/opinion/welcoming-refugees-trump-america.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region®ion=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region

David Miliband writes in the NYT:

“Many Americans, and the American government itself, have expressed shock at the treatment of Rohingya Muslims in Myanmar. The Trump administration has also said it is concerned about persecuted religious minorities in the Middle East. For his part, the president has said he wants to defend the rights of the Castro regime’s opponents in Cuba.

Yet all these protestations will be for nothing if, as the deadline approaches for the White House to make its determination about the number of refugees to be admitted next year, the administration decides to decimate the United States refugee resettlement program. At stake are not just the lives of tens of thousands of victims of war and persecution who dream of starting a new life in America; at risk also are American values, the United States’ reputation and American interests around the world.

Every year, the president decides a refugee admission number. Since the 1980 Refugee Act, the average annual admissions ceiling under both Republican and Democratic presidents has exceeded 95,000. For the fiscal year 2017, President Barack Obama decided the number should be 110,000, against the backdrop of a global refugee population that numbers some 22.5 million. President Trump’s two “travel ban” executive orders already intended to cut the 2017 number by more than 50 percent.

Now a decision is expected on the number for fiscal year 2018. Inside the administration, there is a debate between fact and fiction.

The facts are that the vetting for entry to the United States as a refugee is tougher than for any other means of arrival. Not one of the three million refugees to the United States since 1980 has committed a lethal act of terror on American soil. The Cato Institute has calculated that a United States resident has a 1 in 3.64 billion chance of being killed by a refugee.

Meanwhile, some 60,000 Iraqis who have supported the American military and diplomatic effort in Iraq — as, for example, interpreters — are waiting to know if the promise of safe passage to the United States is to be honored.

To put the reduced number of admissions the Trump administration will permit for 2018 in a larger context, the king of Jordan, an American ally, has said that his country of some 9.5 million inhabitants is at a breaking point, with 650,000 registered refugees and, by some estimates, as many more unregistered. Last year, the United States helped resettle more than 19,000 of those most vulnerable Syrians from Jordan. Besides relieving pressure there, this crucially countered the Islamic State’s narrative that America will never offer dignity to Muslims.

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Some more facts. Providing sanctuary is not charity: Researchers have found that over a 20-year period, those who were admitted to the United States as refugees between the ages of 18 and 45 (and more than half of refugees are under 18) will pay $21,000 more in taxes than they will receive in benefits.

American leadership is a vital part of the story. This time last year, the Obama administration’s response to the refugee crises led to a doubling of refugee admissions pledges by wealthy nations. This year, America’s retreat from its commitments has contributed to a nearly 60 percent fall in the global resettlement total so far this year.

The question is whether the Trump administration cares about the facts. Because fiction has its backers. The fiction that the vetting is done by the United Nations, not the United States. That refugees are economic migrants in disguise. That America bears an unfair share of the global burden.

The reverse is true: According to Amnesty International, the world’s top 10 refugee-hosting countries, places like Uganda, account for only 2.5 percent of global income. Uganda has received more than 600,000 refugees alone from the war in South Sudan since 2016. When I asked its leaders in June if they were going to put up the shutters, their answer was simple: “It could have been us. These are our fellow human beings. We cannot turn them away.”

If Uganda can welcome refugees, a country like the United States has no reason to upend a great national tradition. From among its refugee population, America has benefited from entrepreneurs like Andrew Grove and Sergey Brin, entertainers like Gloria Estefan and public servants like Madeleine Albright.

The people waiting to know their fate are from every walk of life and every station in society: students, factory workers, accountants, widows. What they have in common is that they have lost everything, including in some cases their husbands or wives, sons or daughters. They have heard the professions of concern and looked to the United States as a beacon of hope. Now they want to know if the words mean anything.

The test for this administration is simple. Set a refugee resettlement number around the past level of multiple administrations of 75,000, and this will show that the White House has a head as well as a heart. Gut the refugee program, which the Senate, in the last week, again funded, and the administration will lose any claim to strategy or to humanity.

Crocodile tears are the worst aspect of diplomacy. Real lives depend on this fateful decision.

David Miliband (@DMiliband), a former British foreign secretary, is the president and chief executive of the International Rescue Committee.”

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Historically, refugee admissions have been an area of strong bipartisan agreement. We should not let White Nationalist, xenophobic, “know nothings” like Jeff Sessions and Stephen Miller diminish America’s greatness with their false messages of hate and fear masked as bogus national security and economic concerns.

PWS

09-15-17

THE WORLD HAS MORE REFUGEES THAN AT ANY TIME SINCE WWII; REFUGEES NEED THE U.S. TO SAVE THEM & WE NEED REFUGEES’ ENERGY, BRAVERY, & TALENTS! — THE RESPONSE OF WHITE NATIONALISTS LIKE MILLER & SESSIONS IS TO RECOMMEND CUTTING REFUGEE ADMISSIONS TO AN ALL-TIME LOW OF 15,000! — Don’t Let These Racist Xenophobes Get Away With It!

http://nymag.com/daily/intelligencer/2017/09/trump-considers-cutting-refugee-cap-to-lowest-in-decades.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer%20-%20September%2013%2C%202017&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

Adam K. Raymond reports in New York Magazine:

“In 2016, the last year of President Obama’s administration, the U.S. accepted 85,000 refugees and set a goal of bumping that number up to 110,00 this year. Those plans changed with President Trump’s so-called travel ban, which set the refugee limit at 50,000 for 2016. Now, the administration is considering setting that number even lower for 2018, despite the worst refugee crisis since World War II.

The President has until October 1 to set a refugee ceiling and, the Times reports, there’s a debate raging in the White House about whether the number should be reduced to numbers not seen in decades. Leading the arguments against cutting the totals is Trump senior adviser Stephen Miller, an immigration hawk and ally of Steve Bannon and Attorney General Jeff Sessions. Miller has reportedly produced cutting the number all the way to 15,000. The Department of Homeland Security has proposed its own cut to 40,000.

The Times explains their purported thinking:

Two administration officials said those pushing for a lower number are citing the need to strengthen the process of vetting applicants for refugee status to prevent would-be terrorists from entering the country. Two others said another factor is a cold-eyed assessment of the money and resources that would be needed to resettle larger amounts of refugees at a time when federal immigration authorities already face a years long backlog of hundreds of thousands of asylum seekers.
This reasoning doesn’t align with the facts. Refugees are far more likely to be victims of politically motivated attacks than perpetrators. Limiting refugees does not keep America safer because refugees are not dangerous. It’s difficult not to see nativism as the motive behind pretending that they are: fear makes it easier to convince people that suffering people should be excluded from the United States. As for the cost concerns, the GOP’s feigned fiscal prudence should never be taken seriously.

By setting the refugee cap at 50,000 this year, Trump has already pushed the number lower than it’s been in decades. In the 37 years since the Refugee Act of 1980 gave the president a role in setting the cap, it hasn’t slipped lower than the 67,000 President Reagan set in 1987.

Cutting the refugee ceiling would leave tens of thousands of vulnerable people out in the cold, the International Rescue Committee said in a report last month. The humanitarian organization advocates for a ceiling no lower than 75,000 people. “An admissions level of at least 75,000 is a critical signal to the world that the United States remains a safe haven for those fleeing persecution, terror and ideologies antithetical to American democratic values,” the report says. “Anything less would be to turn our backs on the United States’ humanitarian tradition and global leadership.”

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Under the last three Administrations, the US has made an absolute muddle out of two ill-advised wars and Middle East policies in general. The idea that guys like Trump, Tillerson, Miller, Bannon, Sessions, and even “the Generals” can come up with a constructive solution borders on the ludicrous. Nope. They going to to fight the 21st Century version of the “100 Years War” with similar results.

If there is a solution out there that will help achieve stability and provide a durable solution to the terrorist threats, it’s more likely going to be coming from one of today’s refugees who have a better idea of what’s actually going on and how we might become part of the solution rather than making the problems worse.

Refugees represent America’s hope. The Sessions-Miller-Bannon cabal represents America’s darkest side — one that threatens to drag us all into the abyss of their dark, distorted, and fundamentally anti-American world view.

PWS

09-13-17

THIS IS DUE PROCESS? — 10th Cir. Rips BIA’s Anti-Asylum Decision-Making — BIA Ignores Record, Makes Up Law To “Stick It” To PRC Asylum Seeker! — Qiu v. Sessions! — “The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion!” — Read My Latest “Mini-Essay” — “HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS!”

16-9522

Qiu v. Sessions, 10th Cir., 09-12-17

PANEL: PHILLIPS, McKAY, and McHUGH, Circuit Judges.

OPINION BY: Judge McKay

KEY QUOTES:

The BIA held that Petitioner had not submitted sufficient evidence to show a change in country conditions, and thus that her motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C). The BIA first held that Petitioner had not submitted sufficient evidence to show that the treatment of Christians in China has worsened since her 2011 immigration hearing. This factual finding is not supported by substantial—or, indeed, any—evidence in the record. The agency provided no rational explanation as to how numerous accounts of a 300 percent increase in the persecution of Christians, “unprecedented violations” of religious freedoms beginning in 2014, and possibly “the most egregious and persistent” wave of persecution against Christians since the Cultural Revolution of 1966–76 was insufficient to show that the treatment of Christians in China had worsened since 2011. Nor is there anything in the record that would contradict Petitioner’s extensive evidence of a substantial increase in the government’s mistreatment of Christians since 2011. The BIA pointed to the fact that some portions of the State Department’s 2014 report include substantially similar language to the 2008 and 2009 reports. However, the State Department’s habit of cutting and pasting portions of its old reports into newer reports does nothing to refute all of the other evidence that the level and intensity of persecution against Christians has increased significantly since 2011. Nor does anything in the State Department report suggest that the U.S. Commission and various human-rights organizations are all reporting false data or drawing false conclusions about the deterioration of the treatment of Christians in China. The BIA thus abused its discretion by holding, completely contrary to all of the evidence, that Petitioner had not shown that the treatment of Christians in China has worsened in recent years.

The BIA also suggested that the substantial increase in the persecution of Christians was simply irrelevant because “[a] review of the record before the Immigration Judge indicated that China has long repressed religious freedom, and that underground or unregistered churches continued to experience varying degrees of official interference, harassment, and repression, including breaking up services, fines, detention, beatings, and torture.” (R. at 5.) However, the fact that there was already some level of persecution in China does not prevent Petitioner from showing a change in country conditions due to a significant increase in the level of persecution faced by Christians in her country. To hold otherwise would be to bar reopening for petitioners who file for asylum when they face some, albeit insufficient, risk of persecution in their country, while permitting reopening for petitioners who file for asylum without there being any danger of persecution, then seek reopening after their country fortuitously begins persecuting people who are in their protected category thereafter. But surely Congress did not intend for 8 U.S.C. § 1229a(c)(7)(C) to protect only petitioners who file frivolous asylum applications under no threat of persecution, while extending no help to petitioners who seek reopening after an existing pattern of persecution becomes dramatically worse. The BIA’s reasoning would lead to an absurd result, one we cannot condone.

Instead, we agree with the Second, Seventh, Ninth, and Eleventh Circuits that a significant increase in the level of persecution constitutes a material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and that the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substantially worsened since the initial application. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (“Proof that persecution of Christians in Pakistan has become more common, intense, or far-reaching—i.e., the very proof that petitioner purports to have presented in filing his motion to reopen—would clearly bear on this objective inquiry [into the likelihood of future persecution]. Under the circumstances, the BIA’s refusal even to consider such evidence constitutes an abuse of discretion.”); Poradisova v. Gonzales, 420 F.3d 70, 81–82 (2d Cir. 2005) (holding that the BIA abused its discretion in denying a motion to reopen based on worsened country conditions: evidence that the human-rights situation in Belarus is “in an ‘accelerating deterioration’” and “that the situation has worsened since the Poradisovs’ original application” “certainly warranted more than a perfunctory (and clearly inaccurate) mention by the BIA as being ‘merely cumulative’”); Shu Han Liu v. Holder, 718 F.3d 706, 709, 712–13 (7th Cir. 2013) (holding that a petitioner seeking to file an untimely motion to reopen must meet her burden of “show[ing] that Chinese persecution of Christians (of her type) had worsened,” and concluding that the BIA abused its discretion in ignoring evidence that current conditions in China were worse than conditions at the date of the petitioner’s final removal hearing); Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014) (“The BIA abused its discretion when it failed to assess Chandra’s evidence that treatment of Christians in Indonesia had deteriorated since his 2002 removal hearing.”); Jiang v. U.S. Attorney Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) (holding that the BIA clearly abused its discretion by overlooking or “inexplicably discount[ing]” evidence of “the recent increased enforcement of the one-child policy” in the petitioner’s province and hometown).

Finally, the BIA rejected Petitioner’s mother’s statement regarding her recent religious persecution in Petitioner’s hometown as both unreliable and irrelevant. The BIA held that the statement was unreliable for two reasons: (1) it was unsworn, and (2) it was prepared for the purposes of litigation. The first of these reasons is incorrect both as a matter of fact and as a matter of law. Petitioner’s mother concluded her statement by expressly swearing to the truth of everything she had stated therein, and thus the BIA’s factual finding that the statement was unsworn is refuted by the record. And even if the BIA were correct in its factual finding, we note that several “[o]ther circuits have admonished the Board for dismissing or according little weight to a statement due to its unsworn nature.” Yu Yun Zhang v. Holder, 702 F.3d 878, 881 (6th Cir. 2012). There is no statutory support for the BIA’s contention that documents at immigration hearings must be sworn, and “numerous courts,” “without so much as pausing to note the unsworn nature of a document, . . . have relied on such documents when considering claims of asylum applicants.” Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008). “Moreover,” the Fourth Circuit noted in Zuh, “it seems untenable to require a sworn statement from a person harassed because of a relationship with an asylum applicant and potentially endangered by helping that applicant.” Id.; see also Yu Yun Zhang, 702 F.3d at 881 (“Given the documented persecution of Christians in China, it seems an arbitrarily high threshold to require that letters attesting to government abuse and admitting membership in a persecuted organization be notarized.”).

As for the BIA’s second reason for rejecting the statement as unreliable, the fact that the evidence was prepared while litigation was ongoing is all but inevitable in the context of a motion to reopen, and we hold that the BIA may not entirely dismiss an asylum applicant’s evidence as unreliable based solely on the timing of its creation. Neither the BIA decision nor the government brief cites to a single statute or circuit court decision to support the idea that the timing of a statement’s creation is a dispositive or even permissible factor in evaluating its reliability in an asylum case. Furthermore, we note that the Sixth Circuit has held that it simply “does not matter that [evidence] may have been written for the express purpose of supporting [a petitioner’s] motion to reopen,” citing for support to a Ninth Circuit case which held that the BIA may not “denigrate the credibility” of letters written by the petitioner’s friends based simply on the inference that her friends “‘would tend to write supportive letters.’” Yu Yun Zhang, 702 F.3d at 882 (quoting Zavala-Bonilla v. INS, 730 F.3d 562, 565 (9th Cir. 1984)). We need not resolve this broader question in the case before us today; even if the timing of a statement’s creation might perhaps play some role in determining its credibility and the weight it should be afforded, the BIA cannot entirely dismiss a statement as unreliable based simply on the fact that it was prepared for purposes of litigation. The protections that the asylum statute was intended to provide would be gutted if we permitted the BIA to entirely reject all evidence presented by an asylum applicant that is prepared following the filing of the initial asylum application, and we see neither legal or logical support for such a ruling. We accordingly hold that the BIA abused its discretion in this case by rejecting Petitioner’s mother’s statement as unreliable based solely on the (erroneous) finding that it was unsworn and on the timing of its creation.

Finally, the BIA dismissed Petitioner’s mother’s statement as irrelevant because “the respondent’s mother is not similarly situated to the respondent, inasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. Tinasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion.

The BIA provided no rational, factually supported reason for denying Petitioner’s motion to reopen. We conclude that the BIA abused its discretion by denying the motion on factually erroneous, legally frivolous, and logically unsound grounds, and we accordingly remand this case back to the BIA for further consideration. In so doing, we express no opinion as to the ultimate merits of the case.”

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HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS

Paul Wickham Schmidt

United States Immigration Judge (Retired)

Everyone should read the Tenth Circuit’s full opinion detailing the mounds of evidence that the BIA ignored and/or mischaracterized, at the above ink.

Folks, the 10th Circuit, former home of Justice Neil Gorsuch, is hardly known as a “haven” for asylum seekers. So, that the 10th finally is fed up with the BIA’s biased anti-asylum seeker decision making speaks volumes.

I’ve made the observation before that the BIA appears to be on “anti-asylum autopilot.” This looks for all the world like a “cut and paste” denial mass-produced by BIA staff from boilerplate that is unrelated to the facts, evidence, or, as this case shows, even the law. The BIA sometimes twists the law against asylum seekers; other times, as in this case, the BIA simply pretends that the law doesn’t exist by ignoring it. I can just imagine the BIA opinion drafter thinking to him or her self, “Oh boy, another routine PRC motion denial. This should sail through the panel without any problem. Need to get those numbers up for the month.”

This is not an isolated incident. As I’ve pointed out before, there is a strong anti-asylum bias in the BIA’s decisions. Virtually no BIA precedents (particularly since the “Ashcroft purge” when true deliberation and dissent were tossed out the window) illustrate how commonly arising situations can and should result in many more grants to asylum seekers under the generous principles enunciated by the Supreme Court in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi, yet routinely ignored by today’s BIA.

The majority of asylum seekers are credible individuals coming from countries where persecution, torture, and human rights abuses are well-documented. Even in the Northern Triangle, where the BIA has intentionally skewed the law against asylum seekers, torture by gangs by and cartels while the corrupt government authorities are either complicit or “willfully blind” abounds. The BIA, and some U.S. Immigration Judges, have to work overtime and routimely turn a blind eye to both facts and the law to deny protection in the majority of cases.

At a minimum, most Southern Border arrivals fleeing gang violence should be getting temporary grants of protection under the CAT. Instead, they are often railroaded out of the country, sometimes without even seeing a U.S. Immigration Judge, other times with no legal assistance to help them in making a claim. And, the Sessions-led Justice Department had the absolute gall to claim that this lawless and unconstitutional behavior amounts to a “return to the rule of law” at EOIR!

Where’s the outrage from this type of gross abuse of the system by politicos who should have no role in the operations of the U.S. Immigration Courts? Where is the Congressional oversight of Sessions’s use of the USDOJ as a tool to advance a blatantly restrictionist, White Nationalist political agenda? How does a system that functions this poorly, on all levels, justify elimination of annual in-person training of U.S. Immigration Judges?

When you read the full decision, you can see the voluminous evidentiary package that the respondent’s counsel put together just to get a reopened hearing. And, it resulted in an illegal denial by the BIA. Only an appeal to a Court of Appeals saved the day. How could any unrepresented asylum seeker achieve due process in a system that demands unreasonable documentation, routinely denies individuals the legal assistance necessary to assemble and present such evidence, and then ignores the evidence when it is presented? What kind of due process is this?

And, the Article III Courts have to shoulder some of blame. In particular, the Fifth Circuit “goes along to get along” with the BIA, and turns a blind eye to violations of human rights laws and skewed factfinding in “rubber stamping” inadequate hearings coming from detention centers in obscure locations in Texas.

Reiterating a point I’ve made numerous times, why is a captive, enforcement-oriented, pro-Government tribunal that performs in the manner detailed in this case entitled to “deference” on either the facts or the law (so-called “Cheveon deference” that has been criticized by Justice Gorsuch and others)? What’s “expert” about a tribunal that routinely ignores and misconstrues basic asylum law as detailed in this decision?

At a minimum, in light of the types of gross miscarriages of justice that have come to light in some recent Court of Appeals decisions, the BIA should change its internal operating procedures to require that all asylum denials be reviewed by a three-judge panel. But, don’t hold your breath. That would slow down the “assembly line” at the “Falls Church Service Center.” And turning out large numbers of final orders of removal without any real deliberation is what the “Sessions-Era BIA & EOIR” is all about.

Folks, we need an independent U.S. Immigration Court, including a competent Appellate Division (“BIA”). And in the future, selections of BIA Appellate Immigration Judges should be made in the same careful manner that applies to U.S. Supreme Court and Court of Appeals Judges.

The “life and death” power wielded by U.S. Immigration Judges and BIA Appellate Immigration Judges actually exceeds that of most Article III Judges. Yet the selection process for the Immigration Judiciary is opaque, cumbersome, secretive, closed, and consistently produces one-sided results skewed toward “insiders” or those with government experience. In other words, those with a history of “going along to get along” in the system rather than showing independent thinking and the courage to stand up for due process even when it isn’t “in vogue” with the politicos in an Administration (and genuine due process for migrants is seldom”in vogue” these days in either GOP or Democratic Administrations).

Proven expertise, excellence, sensitivity to individual situations, and commitment to due process for migrants and correct application of human rights law and protections should be a minimum qualification for an Appellate Immigration Judge. And, the same question should be asked that was asked of Justice Gorsuch: “If necessary, are you willing to stand up and rule against the President and the Administration.” Obviously, in the case of the current BIA, the answer would largely be “No.”

PWS

09-13-17

UNPUBLISHED 2D CIR REMINDS BIA THAT “PERSECUTION”DOESN’T REQUIRE ACTUAL PHYSICAL HARM — Mann v. Sessions

MANN AKA v. SESSIONS III | FindLaw

KEY QUOTE:

“Were the only grounds available to Mann those of future persecution, we would be inclined to affirm. But however unsuccessful Mann’s case may be with respect to future persecution, without a full consideration of the first prong of “persecution”, that is, of “past persecution”, the IJ’s analysis is incomplete, and thus the result in this suit invalid. In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate.

In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate. Poradisova, 420 F.3d at 79-80. Past persecution can be established by harm other than threats to life or freedom, including “non-life-threatening violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). And, while the harm must be severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006), it is sufficient, in order to show past persecution, that the applicant was “within the zone of risk when [a] family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).

Mann’s claim of past persecution rested on the following incidents: Mann and his brother were longtime members of the Congress Party. Members of opposition parties, the Akali Dal Party and the Bharatiya Janata Party (“BJP”) had successively solicited Mann and his brother’s departure from the Congress Party to join their parties. After Mann and his brother refused to depart the Congress Party, the opposition party members stopped Mann and his brother in the street and assaulted Mann’s brother. At the time of the assault, both Mann and his brother were in a car in the middle of doing political work. Mann managed to escape the car and their attackers. His brother, however, was severely injured: he both lost a leg and suffered mental incapacitation. Subsequently, Mann fled his hometown, residing in Chandigarh, a neighboring city, for two months, and, after that, moved to Delhi. During that time, his family was responsible for caring for his brother’s permanent disabilities and injuries.

Upon review, the IJ found the fact that Mann himself had not suffered physical harm to be dispositive of his past persecution claim. Yet physical harm is not always needed for a showing of past persecution. And, it is not required in an analysis undertaken under Tao Jiang’s “zone of risk” and “continuing hardship” tests.

Because (i) the IJ’s analysis does not directly address the question of whether Mann was sufficiently within “the zone of risk” when a family member (here, his brother) was seriously harmed, and, (ii) it is certainly conceivable that on direct reconsideration Mann’s flight from his hometown and help to his family in caring for his brother constitutes the sufferance of “some continuing hardship,” we hereby GRANT Mann’s petition for review, and VACATE the decision of the BIA. We REMAND Mann’s claim of persecution to the BIA for further consideration in light of Tao Jiang’s “zone of risk” and “continuing hardship” requirements.”

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Another example of faulty asylum analysis by the BIA. Why does the Supreme Court require Federal Courts to “defer” to a supposedly “expert” administrative tribunal that all too often appears to have less expertise in applying asylum law than the Article III Courts? Also, why doesn’t the Second Circuit publish helpful cases like this so that they can be widely cited and used as a tool to improve BIA adjudications?

According to the UN Handbook, credible asylum seekers should be given “the benefit of the doubt.” That’s not happening in some Immigration Courts and on some BIA panels.Why not? What’s the excuse?

Just another example of why we need an independent Article I Immigration Court. And, we need a diverse BIA with real expertise and an overriding commitment to fairness, due process, careful appellate adjudication, and correct application of human rights laws.

PWS

09-11-17

ALLAN SLOAN IN THE WASHPOST: TRUMP’S CODDLING OF WHITE SUPREMICISTS & HATE GROUPS BETRAYS MORE THAN AMERICAN VALUES — HE FAILED TO DEFEND HIS OWN FAMILY!

https://www.washingtonpost.com/business/economy/trumps-biggest-failure-not-standing-up-for-his-own-family/2017/08/18/e90f1bc4-8423-11e7-902a-2a9f2d808496_story.html?utm_term=.f40245641dbb

Sloan, a business columnist, writes:

“But Trump’s behavior shows, unfortunately, how right I was two weeks ago when I wrote that he’s making a classic business mistake — by surrounding himself with flunkies who kiss up to him and by not listening to the handful of strong subordinates whom he’s appointed.

If you’re a competent chief executive, you try to surround yourself with competent subordinates who don’t shrink from telling you when they think you’re wrong. You put them in a room and let them duke it out. And if you’re smart, you pay attention to what they say, because you’re secure enough to realize that they may know more about certain things than you do.

As we’ve seen from Charlottesville, Trump isn’t remotely like that.

As a business columnist, I know that I’m expected to write how some CEOs bailed on two presidential advisory committees that Trump created. And how Trump, true to form, disbanded the committees and embarrassed the CEOs who had stood by him, just so he could claim to get the last word.

But when it comes to analyzing the big picture, which is what I’m trying to do here, the advisory committees debacle isn’t even a rounding error. What really matters is that Trump is exhibiting the same behavior that led businesses he controlled into six Chapter 11 bankruptcies (which is why I call him Donald 66 Trump) as his casino-real estate empire collapsed in the 1980s and 1990s.

But that’s just business. What makes me truly angry about Donald 66 — who, like me, has Jewish children and grandchildren — is that he can’t be bothered to defend his own family. Unbelievable, isn’t it? But true.

It’s inconceivable to me that Trump, whose daughter Ivanka joined the Jewish people, married a Jew and has produced three Jewish grandchildren, can’t bring himself to tweet (let alone say) that he has a problem with a crowd chanting “Jew will not replace us.” Or with them chanting “Heil, Trump”— the Nazi salute — while wearing Trump gear.

What is wrong with this man? You can argue politics and taxes and health care and other bones of contention 100 different ways. But for God’s sake — pun intended — Trump isn’t even defending members of his own family, two of whom are among his closest advisers, against religious bigotry.

I’m especially sensitive to this because I’m an American who’s Jewish. Please note that “American” comes first; I loathe identity politics. Trump and I are from the same generation. I know, as Trump must know, what the Nazis were about. One of the many reasons that I love this country is that without America, I think the Nazis would have won World War II and murdered every Jew on Earth.

It’s one thing for Trump to use “America First” — a phrase that evokes 1930s Nazi sympathizers like Charles Lindbergh (a onetime aviation hero) and Father Charles Coughlin (the “radio priest” from Royal Oak, Mich., who spewed hate, was finally silenced by the pope, and whose Shrine of the Little Flower I passed twice daily during my first year at the Detroit Free Press). I’ll give Trump the benefit of the doubt on that one, and say he didn’t know what “America First” evoked before he started using it.

But for Trump to not tweet that he doesn’t want to see “heil” and “Trump” in the same sentence? To not come to the defense of the Jewish members of his family? Or the Jews among his presidential appointees? What the hell is wrong with this man?

The best thing I’ve read since Charlottesville erupted was what Sen. Orrin G. Hatch (R-Utah) said. To wit, “My brother didn’t give his life fighting Hitler for Nazi ideas to go unchallenged.” That’s exactly right. And my late father-in-law, who was a total mensch, didn’t spend five of the prime years of his life in the Seabees for Nazi ideals to go unchallenged. Nor did the millions of other Americans who took up arms to defend our country against overwhelming evil.

The Charlottesville counter-demonstrators were fools who fell into the demonstrators’ trap. (That’s one thing that Trump has gotten right. As the saying goes, “Even a blind pig can find an acorn.”)

But the counter-demonstrators, however foolish and out of control, aren’t remotely equivalent to swastika-toting provocateurs and Ku Klux Klan Kreeps demonizing blacks and Jews and immigrants, praising Hitler’s evil crew and by implication demeaning the Americans who fought to subdue the Nazi menace.

To return to sports analogies, you deal with these trolls by using what the late Muhammad Ali called “rope a dope” strategy. You let them march, you don’t physically confront them, you don’t help them get the attention they crave, you let them punch themselves into exhaustion. No harm, no foul, no mainstream publicity. They’re publicized by the Daily Stormer, today’s iteration of the Nazis’ anti-Semitic Der Sturmer newspaper? Who cares? Let it go.

At this point, unfortunately, I don’t think Donald 66 can change enough to become a competent chief executive instead of a faux CEO, even if he wants to. But maybe he can learn to be a decent father and grandfather, and stand up for his kids and grandkids. We need a lot more from him than that, but I’ll take what little I can get.”

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PWS

08-19-17

4TH CIRCUIT SHRUGS OFF VIOLATION OF REFUGEE’S DUE PROCESS RIGHTS! — MEJIA V. SESSIONS

http://www.ca4.uscourts.gov/Opinions/Published/161280.P.pdf

All the quote your really need to understand how far into the sand the Article III Judges on this panel were willing to stick their heads to avoid upholding the Constitution:

“Calla Mejia warns that our interpretation of § 1252(b)(1) contravenes the REAL ID Act and effectively “abolish[es] review of all underlying orders in reinstatement,” thereby raising “‘serious constitutional problems’”—namely, Suspension Clause concerns.12 Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss, at 12, 17 (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)). Not so. Rather, we think it more than feasible that an individual removed to her home country could illegally re-enter the United States, have the original removal order reinstated by DHS, and petition for review—all within a month’s time.”

Ah, according to the judges who joined the majority here, the respondent’s mistake was that she waited several months before reentering the U.S. illegally, instead of reentering illegally within 30 days. Of course, the trauma caused by her having been raped by her husband upon return, after being improperly duressed by a U.S. Immigration Judge in a detention facility (who seriously misrepresented the law) into abandoning what should have been a “slam dunk” asylum grant under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), might have had something to do with it. But, if you’re a life-tenured judge in the “ivory tower” who cares? And, of course, unrepresented aliens subject to reinstated orders in detention centers would have little trouble filing a petition for review in a U.S. Court of Appeals. Com’ On, Man!

But, wait a minute! Judge Traxler, in his separate opinion, had an even better idea: let’s find no jurisdiction over everything so we can completely wash our hands of what we’re doing to this undisputed “refugee.”

Well, the good news here is that the Respondent did end up with a basically uncontested grant of mandatory withholding of removal to Peru, so her life is saved. That’s because, unlike the four other U.S. Judges who heard her case, the second Immigration Judge to hear the case, in Maryland, was actually interested in making the law work to grant protection. Lucky for the respondent she wasn’t sent to Charlotte, Atlanta, or Stewart!

But, as a result of the due process violations by the first Immigration Judge who heard (but didn’t take the time to understand) the case (probably one of those who can “really crank out the removal orders” for unrepresented individuals at detention centers) and the unwillingness of the Fourth Circuit Panel that reviewed this case to uphold the Constitution, this respondent will be condemned to “limbo” in the U.S., unable to qualify for the green card or the eventual chance to become a U.S. citizen that she otherwise should have had.

Read the full decision and understand my point that some, or perhaps the majority, of Article III Judges who are the only hope for due process for many refugees and others entitled to remain in the U.S. will be happy to sign on as “station masters” on the “Trump-Sessions Deportation Express.” It’s the easiest path to take.

PANEL: CIRCUIT JUDGES TRAXLER, DIAZ, and FLOYD

OPINION BY: JUDGE DIAZ

CONCURRING AND DISSENTING OPINION: JUDGE TRAXLER

PWS

08-11-17

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder. (In addition to the former Board member, one of the included IJs also served as a temporary Board member). The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows. After initially ceding a limited duress exception to the Board, DHS recently changed its position. In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim. First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself. As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden. The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

7th Slams IJ, BIA For Mishandling Of Credibility, Corroboration Issues In Moldovan Asylum Case — COJOCARI V. SESSIONS!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-11/C:16-3941:J:Hamilton:aut:T:fnOp:N:1992923:S:0

Key quote:

“We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that.

No. 16‐3941 27

Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis.

Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge).

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.”

PANEL: Chief Judge Wood, Circuit Judges Manion and Hamilton.

OPINION BY: Judge Hamilton

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Gee, who needs training when things like this can get through the system?

PWS

07-13-17

REVEAL: DUE PROCESS OUTRAGE — DHS MOVES TO DEPORT VULNERABLE CHILDREN WHO HAVE BEEN APPROVED FOR GREEN CARDS — FEDERAL COURTS NEED TO STEP UP TO THE PLATE AND END THE MISUSE OF EXPEDITED REMOVAL BY DHS!

https://www.revealnews.org/article/a-judge-said-these-kids-get-a-green-card-ice-says-they-get-deported/

Bernice Yeung writes in Reveal:

. . . .

“A Pennsylvania judge and the U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security, have decided that V.G. deserves to stay in the United States.

But another arm of department, Immigration and Customs Enforcement, says he must go. And, under what’s known as “expedited removal,” immigration officials can skip the traditional removal process in front of immigration judges.

Instead, officials are given wide latitude to deport migrants under expedited removal, if those migrants are captured within 100 miles of the U.S. border, have been in the country for less than two weeks and don’t have valid travel documents.

Under this deportation regime, the U.S. government has freedom to deport migrants like V.G. and his mother – who were found soon after they crossed the border without immigration papers – with little due process and limited ways for migrants to contest the order.

President Barack Obama made wide use of the policy, and President Donald Trump favors expanding it further.

Created in 1996, the expedited removal policy has been controversial since the start. Those who seek to tighten the borders laud the policy for its efficiency and for promoting deterrence. But immigrant and asylum advocates say that it lacks checks and balances and gives too much discretion to border patrol agents.

But it’s a policy susceptible to errors without a meaningful process to correct them.

Once an immigration official has placed a migrant into expedited removal, there are few ways to contest it. People who can show they are authorized to live in the country are able to challenge expedited removal in federal court. Asylum-seekers also have a chance to make a case that they have a fear of returning to their home countries, but they cannot appeal an unfavorable decision.

Everyone else is returned to their home countries as quickly as possible. They are then barred from returning to the United States for five years.

The U.S. Commission on International Religious Freedom, which has observed expedited removal proceedings since 2005, has found “serious flaws placing asylum seekers at risk of return to countries where they could face persecution.” The ACLU has also documented a case of an asylum-seeker who was quickly deported, only to be raped after she was sent back across the southern border.

Multiple U.S. citizens have been accidentally deported through expedited removal. Foreign workers and tourists with valid visas have also been turned away, prompting a judge to write in a 2010 decision that the expedited removal process is “fraught with risk of arbitrary, mistaken, or discriminatory behavior.”

Nonetheless, various courts across the country have agreed that the law is clear: The courts cannot intercede in expedited removal cases, even if there’s a reason to believe the outcome was unjust.

This has put kids like V.G. in legal limbo, stuck between two competing government mandates. They have a special status to stay in the United States. At the same time, the Department of Homeland Security says it has the authority to deport them.

Immigration officials declined to comment on pending litigation. But in court documents filed in V.G.’s case, the government says the children’s deportation orders are final and their special status doesn’t change things, especially since they have not yet received their green cards.

V.G.’s attorneys argue, among other things, that a federal court has previously required the government to revisit the deportation orders of children once they’re granted the humanitarian status.

That requirement, they say, also extends to expedited removal cases.”

. . . .

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In addition to being bad policy, this clearly isn’t due process! It’s time for Federal Judges get out of the ivory tower and start enforcing the requirements of our Constitution! Assuming that recent arrivals apprehended at the border with no claim to stay in the U.S. might not get full judicial review (a proposition that I question), these kids are different, having been approved for green cards and merely waiting in line of a number to become available in the near future. In the past, the policy of the DHS has invariably been to allow such individuals to remain in the U.s. pending availability of a visa number — even when that process might take years.

Thanks much to Nolan Rappaport for spotting this item and forwarding it to me!

PWS

07-10-17

DHS MISTREATS KIDS: U.S. District Judge Dolly Gee Finds That DHS Has Blown Off Her Prior Orders & Continues To Mistreat Children In Detention!

http://immigrationimpact.com/2017/06/28/government-continues-ignore-rights-children-detention-court-finds/

Karolina Walters writes in Immigration Impact:

“Despite being among some of the most vulnerable, children seeking asylum in the United States often fare the worst. Upon entering the United States, children are often detained for extended periods in violation of a long-standing agreement known as the Flores settlement.

The Flores agreement essentially acts as a contract between the government and children held in immigration custody. On Tuesday, a federal district court judge ruled once again that the government is failing to meet its obligations to children held in immigration custody.

The court found a number of violations, including holding children too long in detention, in substandard conditions, and in non-licensed facilities. In addition, the court ruled that the government is required to look at each child’s case individually to determine whether release from custody is appropriate—the government may not rely on any blanket standard to avoid the responsibility of assessing each case individually.

The Flores agreement is a nationwide settlement reached in 1997. In this settlement, the government agreed that children taken into immigration custody would be placed in the “least restrictive setting appropriate to [their] age and special needs” and would be released “without unnecessary delay,” preferably to a parent. The settlement also requires that if a child is not released to a parent, adult relative, or an appropriate guardian, children must be placed in non-secure facilities licensed for the care of dependent children within five days of apprehension.

Two years ago, the Center for Human Rights and Constitutional Law (CHRCL), on behalf of immigrant children, brought suit to enforce the Flores settlement. In July and August of 2015, U.S. District Court Judge Dolly M. Gee said the government must apply the settlement to all minors, including those detained with family members. Tuesday’s order from Judge Gee outlines the particular ways in which the government is in breach of the Flores settlement and how the court seeks to ensure compliance going forward.”

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Read the complete article at the link.

While AG Jeff Sessions is out whipping up xenophobic frenzy and promoting the need for an “American Gulag” to support his “Gonzo Apocalypto” immigration enforcement agenda, he ignores his real legal and constitutional duties: Get General Kelly and the rest of the folks over at DHS to obey the law and stop mistreating kids!

That someone like Sessions with such totally warped values and lack of any sense of justice or decency should be in charge of our supposedly due process providing U.S. Immigration Court system is a continuing travesty of justice.

PWS

06-29-17

NBA SUPERSTAR STEPH CURRY JOINS LIN-MANUEL MIRANDA’S PRO IMMIGRATION CAMPAIGN!

http://www.vibe.com/2017/06/steph-ayesha-curry-lin-manuel-ham4all/

VIBE reports:

Lin-Manuel Miranda early this morning announced his latest and most important contest yet: the #Ham4All challenge in support of Immigrants: We Get the Job Done Coalition.

“Hamilton has crisscrossed the country—New York, Chicago, San Francisco. Next stop…Los Angeles!” wrote the playwright in an open letter. “I’m thrilled to be back again with another great Hamilton experience, this time benefiting a cause that’s not only at the heart of Hamilton but particularly close to me—immigration. I’m raising money for the Immigrants: We Get the Job Done Coalition, which is comprised of 12 amazing organizations.”

READ: Lin-Manuel Miranda To Be Inducted In The Hollywood Walk Of Fame

Shortly after making the announcement, Golden State Warrior and NBA champion Stephen Curry and his wifey-in-crime Ayesha Curry entered the challenge, making a donation of their own—performing their favorite Hamilton track and throwing down the gauntlet to the next celebrity, in one fell swoop.

“We all feel strongly about supporting these important organizations fighting to protect immigrants, refugees, and asylum seekers who want to make a better life for themselves and their families,” the couple captioned on Instagram, urging Olivia Munn and Dwayne “The Rock” Johnson to join the fight. “The grand prize winner will join us and Lin-Manuel at the LA opening on August 16th. We think that this will be the biggest Hamilton sweepstakes yet, but we need your help…”

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Read the complete story and get links to more information about the “Immigrants: We Get The Job Done Coalition” at the above link. Compare Miranda’s positive, upbeat message about immigration with the steady stream of fear-mongering, xenophobia, implicit racism, and, let’s face it, outright lies about migrants coming from the Trump Administration.

PWS

06-28-17

CAT REOPENING: 9th Cir. Finds “the BIA abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward homosexuals in Ethiopia!” — AGONAFER v. SESSIONS!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

“We conclude that the BIA abused its discretion because it clearly disregarded or failed to give credit to the post-2007 evidence submitted by Agonafer, which demonstrates that the country conditions regarding the treatment of homosexuals in Ethiopia are qualitatively different from the country conditions presented to the IJ in 2007. Whereas before, we noted that there was “no evidence in the record of any violence directed against homosexuals in Ethiopia,” Agonafer, 467 F. App’x at 754, at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia since 2007, including violence in connection with imprisonment. Additionally, we reject the government’s contention that Agonafer must present categorically different evidence of “individual relevancy” from what he presented in his earlier proceedings. It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence of country conditions alone.”).”

Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,* District Judge. Opinion by Judge Huck * United States District Judge for the U.S. District Court for the Southern District of Florida, sitting by designation.

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Yes, it’s only one case out of tens of thousands that the BIA reviews each year. But, mistakes like this from what is supposed to be an “expert judiciary” committed to using “best practices” to “guarantee fairness and due process for all” actually can cost lives!

And mindlessly ramming more cases into an overwhelmed system won’t help the situation.

PWS

06-26-17

NOLAN HITS 100! — “Ninth Circuit gives green light for much larger travel ban” in THE HILL is Rappaport’s 100th Published Article! — Read It Here!

http://thehill.com/blogs/pundits-blog/immigration/339300-ninth-circuit-gives-green-light-for-much-larger-travel-ban?amp

Nolan writes:

“The Ninth Circuit Court of Appeals has issued a new decision on President Donald Trump’s March 6 Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States.”

The court affirmed the portions of the district court injunction that apply to the 90-day, six-country travel ban, but it vacated the portions of the injunction that relate to the government doing an internal review of its vetting procedures, which could lead to a much larger ban based on a different criterion.

. . . .

Where this is headed

Unlike the travel ban, which, notwithstanding pessimistic claims to the contrary, is just a 90-day suspension, the new ban will apply to uncooperative governments until they agree to cooperate, which in some cases will never happen. What’s more, it almost certainly will apply to more than six countries. According to DHS Secretary John Kelley, in addition to the six countries on the travel ban list, 13 or 14 other countries also have very questionable vetting procedures.”

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Read Nolan’s complete article in The Hill at the link.

Congratulations, Nolan, on reaching then”century mark!” You are prolific. Just from putting together this blog, I can appreciate all of the hours of reaearch, writing, and interviews that 100 published articles represents. And, unlike you, I don’t even have to deal with an editor (although my wife Cathy points out that I could use one).

Here’s a link to a list of all 100 of Nolan’s published articles:

Article List

Congrats, again, Nolan! Looking forward to the “next 100.”

PWS

06-26-17

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