REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!

https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer

Dara Lind reports for VOX

“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.

His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.

Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”

But Siagha’s access to a lawyer in immigration court is the exception.

There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.

But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.

The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.

According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.

So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)

Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.

As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.

The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.

From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.

But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.

This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”

I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”

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Read Dara’s full article at the link.

No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and reasonable access to competent counsel.

I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.” Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.

I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)

When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.

That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.

By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!

In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.

No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.

The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.

Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.

I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!” They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.

Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!

PWS

11-10-17

DOUBT THAT THERE IS ANTI-ASYLUM BIAS IN THE STEWART (DETENTION CENTER) IMMIGRATION COURT? — Read This Outrageously Wrong IJ Decision (Fortunately) Reversed By The BIA!

Go on over to Dan Kowalski at LexisNexis Immigration Community to read this outrageous abuse of justice by a U.S. Immigration Judge!

Matter of K-D-H-, unpublished (BIA 10-05-17)

Here’s the link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/03/unpub-bia-asylum-victory-somalia-matter-of-k-d-h-oct-5-2017.aspx?Redirected=true

The BIA Panel that got this one right was:

Chairman/Chief Appellate Judge David Neal

Appellate Immigration Judge John Guendelsberger

Appellate Immigration Judge Molly Kendall Clark

OPINION BY: Judge Kendall Clark

Interestingly, this panel configuration seldom, if ever, appears in BIA precedent decisions. Nor are these Judges recorded as dissenting or commenting upon the BIA’s generally anti-asylum precedents, some of which almost mock the BIA’s leading precedent on the generous nature of asylum law following the Supreme Court’s decision in INS v. Cardoza-Fonseca: Matter of Mogharrbi, 19 I&N Dec. 439 (BIA 1987).

So, why are the Appellate Immigration Judges who appear to have a good understanding of asylum law that is much more in line with the Supreme Court, the U.S. Courts of Appeals, and the BIA’s own pre-2003 precedents “buried in obscurity?” Meanwhile, those Appellate Immigration Judges who evince a lack of understanding of asylum law, the realities of being asylum applicants in the “purposely user unfriendly” Immigration Courts, or any visible sympathy for the plight of asylum seekers (even those who are denied under our overly technical legal standards often face life threatening situations upon return — some actually die — we just choose not to take the necessary steps to protect them) seem to be among the “featured” in BIA precedents? Do all of the BIA Judges really agree with every precedent. If not, why aren’t we seeing some public dialogue, debate, and dissent, as with every other collegial, deliberative court in America? What’s the purpose and value of a “deliberative court” that almost never engages in any public deliberation (about some of the most difficult and complex questions facing our nation)? Where’s the accountability if all BIA Appellate Judges are not recording their votes on published precedents?

As you read the BIA decision and the decision below of Judge Randall Duncan of the Stewart Immigration Court here are a few questions you might keep in mind:

Why doesn’t Judge Duncan cite any actual cases? (He refers to “the Eleventh Circuit” with no specific citations.)
Why didn’t Judge Duncan follow (or even discuss) either the BIA’s precedent in Matter of O-Z- & I-Z-, 23 I&N Dec. 22 (BIA 1998) or the Eleventh Circuit precedent in De Santamaria v, U.S. Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008) both of which discuss “cumulative harm” and would inescapably have led to the conclusion that this respondent suffered past persecution?
Why isn’t this a published precedent in light of Judge Duncan’s clear misunderstanding of the applicable asylum law and because of the notorious reputation of the Atlanta-Stewart Immigration Courts as an “asylum free zone.”
Why did Judge Duncan, a relatively new Immigration Judge (Nov. 2016), attempt to dispose of this case with an obviously inadequate “Oral Decision.”
What kind of asylum training did Judge Duncan get?
What would have happened if this individual had been unrepresented (as many asylum applicants are at Stewart)?
What steps have the DOJ and EOIR taken to improve the poor substantive performance of some Immigration Judges who ignore applicable legal standards and deny far too many asylum cases?
What will Jeff Sessions’s “more untrained Immigration Judges peddling even faster” do to due process and justice in a court system that is currently failing to achieve fairness and due process in too many cases?

Taking a broken system and trying to expand it and make it run faster is simply going to produce more unfair and unjust results. In other words, it would be “insanely stupid.” The Immigration Court system has some serious quality of decision-making, bias, consistency, and due process issues that must be solved before the system can be expanded. Otherwise, the system will be institutionalizing “bad practices” rather than the “best practices.”

PWS

11-06-17

“DYNAMIC DUO” LEADS “GW IMMIGRATION CLINIC BRIGADE” OF THE NEW DUE PROCESS ARMY (“NDPA”) INTO ACTION – ADVANCING AND DEFENDING DUE PROCESS RIGHTS FOR OUR MOST VULNERABLE RESIDENTS WHILE TEACHING THE NEXT GENERATION OF LAWYERS! — PLUS SPECIAL BONUS: Text of My Presentation To Clinic Entitled “RECLAIMING THE VISION – A PLAN FOR ACTION”

Alberto M. Benítez

Before joining the Law School faculty as director of the Immigration Clinic in 1996, Professor Benítez was on the faculty of the legal clinics at Chicago Kent College of Law and Northwestern University School of Law. Prior to becoming a clinician, he was a staff attorney at the Chicago Lawyers’ Committee for Civil Rights Under Law and the Legal Assistance Foundation of Chicago, as well as an intern at the Centro de Estudios Legales y Sociales in Buenos Aires, Argentina. Professor Benítez teaches Immigration Law. In addition, in the summers he has taught at the law schools of the Instituto Tecnológico Autónomo de México and the Universidad Panamericana, in Mexico City. In the spring 2003 semester Professor Benítez was a visitor at the Boyd School of Law of the University of Nevada at Las Vegas, assisting in the development of that law school’s immigration clinic.

Professor Benítez has devoted his entire legal career to working in the public interest, generally with aliens, and so he is familiar with immigration law in its proper context. Evictions, domestic violence, public benefits, etc., these are areas of law that influence the decisions made by the aliens. Professor Benítez was fortunate early in his career to be associated with several supportive, dedicated lawyers who enabled him to learn and progress from them. Therefore, he tries to pass on what he learned and how he learned it to his students, in particular the “learn by doing” system that his early colleagues used with him. That said, students will get out of their experience in this clinic and from their association with Professor Benítez what they put into it.

An Introduction to the United States Legal System by Professor Alberto Benitez

Paulina Vera

Paulina Vera, Esq. supervises Immigration Clinic law students and provides legal representation to asylum seekers and respondents facing deportation in Immigration Court. She previously served as the only Immigration Staff Attorney at the Maryland-based non-profit, CASA. Paulina is a 2015 graduate of The George Washington University Law School. During law school, she was a student-attorney at the Immigration Clinic and worked with Professor Benitez. She also interned at Kids in Need of Defense (KIND), American Immigration Council, and the Arlington Immigration Court. Paulina is admitted to practice law in Maryland and before federal immigration tribunals.

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FORGET SESSIONS’S BOGUS SMEAR CAMPAIGN AGAINST “DIRTY IMMIGRATION LAWYERS” — THESE ARE THE “REAL FACES” OF AMERICAN IMMIGRATION LAW TODAY, FIGHTING TO PROTECT THE CONSTITUTIONAL RIGHTS OF ALL AMERICANS! — AND THEY AREN’T INTIMIDATED BY A DISINGENUOUS AND FEAR-MONGERING ATTORNEY GENERAL!

I was pleased to be invited to speak to the GW Immigration Clinic on Thursday, Nov. 2, 2017.

I am, of course, particularly proud of my good friend the amazing Paulina Vera, who is a distinguished alum of both the GW Immigration Clinic and the Arlington Immigration Court Legal Intern Program!

Here’s what I said:

RECLAIMING THE VISION – A PLAN FOR ACTION

BY PAUL WICKHAM SCHMIDT

UNITED STATES IMMIGRATON JUDGE (Retired)

The George Washington Law School Immigration Clinic

Washington, DC.

Nov. 2, 1017

Good afternoon, and thanks so much to you and my good friend and Alexandria neighbor Professor Alberto Benitez for inviting me. I want to express my deep appreciation for all of the great help that your Clinic gave to vulnerable migrants and to the Judges of the U.S. Immigration Court in Arlington, VA in carrying out our due process mission over the years that I was on the bench, from 2003 to 2016. I’m also delighted that the amazing Paulina Vera, a “distinguished alum” of the Arlington Immigration Court Internship Program is your Assistant Instructor.

Professor Benitez tells me that all of you have read my recent article from Bender’s Immigration Bulletin entitled “Immigration Courts: Reclaiming the Vision.” I of course was referring to the noble vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

As you also know, my article set forth a “five step” program for achieving this: 1) a return to Due Process as the one and only mission – ditching the current political manipulation of the courts; 2) an independent Article I Court structure, to replace the current outmoded “agency structure” in the DOJ: 3) professional court management along the lines of the Administrative Office for U.S. Courts and merit-based selection of judges; 4) an independent appellate body that functions in the manner of an Article III court, not as an “Agency Service Center;” and 5) an e-filing system to replace the current “files in the aisles.”

The question is how do we get there from here. Sadly, the individual who should be pushing these reforms, our Attorney General Jeff Sessions, has shown absolutely no interest in meaningful court reforms or protecting due process, beyond rather mindlessly proposing to throw many more new untrained judges into an already dysfunctional and disturbingly inconsistent judiciary and to force a system already careening out of control to “pedal even faster.” That’s a program for failure. Moreover, in my view, Sessions has demonstrated through his public statements and actions to date a clear pro-enforcement and anti-immigrant bias that makes him the wrong individual to be in change of a due process court system.

The other group who should be solving this problem is Congress. Immigration Court reform should be a bipartisan “no-brainer.” Both sides of the “immigration debate” should want a fair and efficient Immigration Court system that fully complies with due process, gets the results correct, and doesn’t accumulate huge backlogs. Unfortunately, however, Congress currently seems preoccupied with other issues that well might be less important to our country but more “politically expedient.” Although there is a fine draft “Article I Bill” floating around “The Hill,” prepared by the Federal Bar Association with input from the National Association of Immigration Judges, to date I am aware of no actual Congressional sponsor who has “thrown it in the hopper.”

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns like Paulina, my former students, and those who have practiced before the Arlington Immigration Court, and folks like you who have had the great leadership of Professor Benitez and others like him in Immigration, Refugee, and Asylum clinics throughout the country!

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s planned expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

So, what you are doing here at the GW Immigration Clinic directly supports the Immigration Court reform movement by insuring that the system will not be able to continue to run over the rights of the unrepresented or underrepresented and that individuals who are unfairly denied relief at the Immigration Court and BIA levels are positioned to seek review in the independent Article III Courts.

I also have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. Additionally, the “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

The Federal Bar Association (“FBA) has been a strong moving force for court reform resulting in an Article I U.S. Immigration Court. So, becoming a “student member” of the FBA and getting involved with our local chapter is another way to support reform.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

In conclusion, I have shared with you the Court’s noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process.

Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. I’d be happy to take questions or listen to suggestions.

(11-05-17)

Here’s a link to the above text:

RECLAIMING THE VISION – A PLAN FOR ACTION

PWS

11-05-17

CHICAGO TRIBUNE: MAKING DUE PROCESS WORK — CITY OF CHICAGO PROGRAM RESULTS IN MORE REPRESENTATION IN IMMIGRATION COURT!

http://www.chicagotribune.com/news/immigration/ct-met-immigrants-represented-in-court-20171031-story.html

Vikki Ortiz Healy reports:

“Immigrants in Chicago have seen a dramatic increase in legal representation since earlier this year, thanks in part to a fund established by the city, according to an independent study released this week by researchers at Syracuse University.

According to the report, the percentage of immigrants in Chicago who were represented in deportation hearings spiked from 30 percent in May to 57 percent in August.

“The more representation we have in court, the more we have a balanced system,” said Mary Meg McCarthy, executive director of the National Immigrant Justice Center, a Chicago-based immigrant advocacy group that partnered with the city to help give legal counsel and services to thousands of immigrants threatened with deportation.

The Legal Defense Fund, approved by the Chicago City Council in January, uses $1.3 million in city funds to pay for immigrants’ legal services or to help them navigate other options to try to avoid deportation.

The fund has been used to hire attorneys at the National Immigrant Justice Center and also issue grants to 10 community organizations for outreach. So far, 1,560 Chicago residents have received free legal screenings, and immigrants have had representation in court for 766 cases. Advocates hope to offer legal representation in 1,000 cases and Know Your Rights training sessions to 20,000 people in the first year, according to officials at the center.

“Good legal advice … reduces the chances of (immigrants) being deported to a country where their lives may be in danger or of them being permanently separated from their families,” McCarthy said.

. . . .

The TRAC report showed that immigrants in all pending cases in Chicago and the collar counties had higher odds of representation than those in rural areas of the state — inconsistencies that mirror those in other states. In Cook County, immigrants were represented 72 percent of the time; 77 percent in DuPage County; 67 percent in Lake; 76 percent in Kane; 80 percent in Will; and 76 percent in McHenry. Meanwhile, immigrants in downstate Sangamon County were represented 34 percent of the time, and those in Morgan County were represented 39 percent of the time.

Because the data on legal representation is the first of its kind collected, researchers hope it will help both immigrant advocacy groups and the public understand how effective funds like the one in Chicago are over time, Long said.

“Chicago is part of a movement of trying to come up with methods to provide representation. The natural question is how effective is it? Being able to monitor that … we thought would be very useful,” she said.

Laura Mendoza, an immigration organizer for the Resurrection Project, said many immigrants she works with are grateful to learn there is a fund to help cover the cost of legal counsel. In some cases, immigrants facing deportation need documentation from a police station to prove they are victims of a crime who may qualify to stay. Lawyers and legal advocates walk them into the police stations to help get the needed paperwork.

“That could be incredibly intimidating. They may not speak the language; they may not know how things work,” Mendoza said. “They’re incredibly thankful that there is the ability to be able to get a legal consultation and to get some clarity on the questions that they have.”

Reem Odeh, a Chicago immigration attorney who owns her own firm, said she was glad to see more immigrants gaining access to attorneys because of the complexity of most cases.

“The laws for immigration are so Draconian, which means you forget one technicality or blow one deadline and you may not be able to reopen that case permanently,” Odeh said. “You drop the ball on one element and you could potentially destroy that person’s future for him and his entire family.”

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Representation in Immigration Court saves lives. Many of the individual human beings that restrictionists like to demean by calling “illegals” actually have a right to remain in the US in some status. And, all of them in the US are entitled to Due Process under our Constitution. Without lawyers, Due Process is unlikely to be achieved.

PWS

11-05-17

DOJ PLANS TO CUT U.S. IMMIGRATION COURT BACKLOG IN HALF BY 2020 — CONTINUES TO PRESS BOGUS CLAIM THAT BACKLOGS DRIVEN BY PRIVATE ATTORNEYS — THE TRUTH: BACKLOGS DRIVEN PRIMARILY BY POOR DECISIONS BY CONGRESS (E.G., USG SHUTDOWN) & “AIMLESS DOCKET RESHUFFLING” BY THE DOJ OVER THE PAST THREE ADMINISTRATIONS, INCLUDING THIS ONE!

https://www.washingtonpost.com/local/immigration/doj-details-plan-to-slash-immigration-court-backlog/2017/11/03/03fcef34-c0a0-11e7-959c-fe2b598d8c00_story.html

Maria Sacchetti reports in the Washington Post:

“The Department of Justice said Friday it is aiming to slash the massive immigration court backlog in half by 2020 by adding judges, upgrading technology and refusing to tolerate repeated delays in deportation cases.

Officials, who briefed reporters on condition that they not be identified by name, said the effort is part of the Trump administration’s broad plan to more efficiently handle cases of undocumented immigrants, who number 11 million nationwide.

The administration has reversed Obama-era policies that allowed prosecutors to indefinitely postpone low-priority cases, which the Justice Department officials said allowed some immigrants to delay “inevitable” deportations. In other cases, they said, immigrants who deserved to win their cases were delayed for years because of the backlog.

The immigration court backlog has tripled since 2009, the year former president Obama took office, to more than 630,000 cases in October.

“That is what this administration is committed to, getting this done right, ensuring that we’re never in this place again,” a Justice Department official said. “Really and truly, when you look at the numbers . . . it reflects the fact that the last administration likely wasn’t as committed to ensuring that the system worked the way that Congress intended it to.”

The agency, which oversees the administrative immigration courts, said it plans to hire new immigration judges, use technology such as videoconferencing, and increase judges’ productivity by setting case-completion guidelines, though officials would not give details.

The department also will have a “no dark courtrooms” policy, the officials said, explaining that there are at least 100 courtrooms nationwide that are empty every Friday because of judges’ alternate work schedules. The Justice Department is tapping retired judges to fill those courts.

The immigration court overhaul comes as the Trump administration is carrying out policies that could generate even more cases in coming months. Arrests and deportations from the interior of the United States are rising sharply, and the Trump administration has ended Obama-era protections for some undocumented immigrants, including 690,000 undocumented immigrants who arrived in the United States as children.

By Monday, the Trump administration is also expected to say if it will renew temporary protected status for thousands of longtime immigrants from Honduras and Nicaragua whose permits expire next year.

The Justice Department officials said they are no longer widely using certain protections for undocumented immigrants, including a tool known as prosecutorial discretion that allowed the government to set aside low-priority deportation cases.

DOJ officials criticized immigration lawyers, saying they “have purposely used tactics designed to delay” immigration cases. As of 2012, the officials said, there were an average of four continuances for each case before the court.

Gregory Chen, director of government relations for the American Immigration Lawyers Association, said the administration’s plan to cut the backlog would “undermine judicial independence” in the immigration courts.

“This administration has been extremely hostile toward the judiciary and the independence of immigration judges, as well as other judges,” Chen said.

Speeding up cases depends partly on congressional funding. It also rests partly on the actions of immigration judges, who have expressed concerns about due process for immigrants, many of whom are facing deportation to some of the world’s most violent countries. Immigrants are not entitled to a government-appointed lawyer in these courts and often handle cases on their own.

The Justice officials would not comment on reports that they will impose case-completion quotas on judges, which raised an outcry from the judges’ union. But the officials said they would give judges clear standards to complete cases and add more supervisors.

Officials say they are already seeing results from efforts this year to improve efficiency. From February to September, judges ordered 78,767 people to leave the country, a 33 percent jump over the same period in 2016. The total number of final decisions, which includes some immigrants who won their cases, is 100,921.”

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THE GOOD:

Using retired U.S. Immigration Judges to fill in while Immigration Judges are on leave or otherwise scheduled to be out of court is a good idea. Indeed, the National Association of Immigration Judges (“NAIJ”) has been pushing this idea since the Clinton Administration with no results until now. Additionally, finally taking advantage of the available “Phased Retirement Options” for the the many Immigration Judges nearing retirement could also be helpful.
Over time, hiring additional Immigration Judges could be helpful, at least in theory. But, that depends on whether the hiring is done on a merit basis, the new judges are properly trained, and they have the space, equipment, and support staff to function. The DOJ/EOIR’s past record on accomplishing such initiatives has been beyond abysmal. So, it’s just as likely that additional hiring will harm the Immigraton Courts’ functioning as it is that it will help.

THE BAD:

“Productivity standards” are totally inappropriate for an independent judiciary. They are almost certain to infringe on due process by turning judges into “assembly line workers.” Moreover, if hiring is done properly, judges should be self-motivated professionals who don’t need “Micky Mouse performance evaluations” to function. While it might be helpful to have some “periodic peer review” involving input from those appearing before the courts and judges of courts reviewing the judges’ work, such as takes place in some other independent judicial systems, that clearly isn’t they type of system this Administration has in mind.
More use of Televideo is problematic. In person hearings are definitely better for delivering due process. The EOIR Televideo equipment tends to be marginal from a technology standpoint. “Pushing the envelope” on Televideo could well force the Article IIIs to finally face up and hold at least some applications of this process unconstitutional.
More “Supervisory Judges” are totally unnecessary and a waste of resources. In the “EOIR World,” Supervisory Judges often don’t hear cases. Moreover, as noted previously, professional judges need little, if any, real “supervision.” The system might benefit from having local Chief Judges (“first among equals”), like in other independent judicial systems, who can address administrative issues with the Court Administrator and the public, But, judges don’t need supervision unless the wrong individuals are being selected as judges. And, as in the U.S. District Courts, local Chief Judges should carry meaningful case loads.
Every other court system in the U.S., particularly the U.S. District Courts, rely on heavy doses of “Prosecutorial Discretion” (“PD”) by government prosecutors to operate. By eliminating PD from the DHS Chief Counsels, then touting their misguided actions, this Administration has guaranteed the ultimate failure of any backlog reduction plan. Moreover, this stupid action reduces the status of the DHS Assistant Chief Counsels. There is no other system I’m aware of where the enforcement officials (“the cops”) rather than professional prosecutors make the decisions as to which cases to prosecute. PD and sensible use of always limited docket time is part of the solution, not the problem, in the Immigration Courts.

THE UGLY:

The DOJ and EOIR continue to perpetuate the myth that private attorneys are responsible for the backlogs. No, the backlogs are primarily the result of Congressional negligence multiplied by improper politically motived docket manipulation and reschuffling to meet DHS enforcement priorities by the last three Administrations, including this one! This Administration was responsible for unnecessarily “Dark Courtrooms” earlier this year in New York and other heavily backlogged Immigration Courts.
Although not highlighted in this article, EOIR Acting Director James McHenry recently admitted during Congressional testimony that EOIR has been working on e-filing for 16 years without achieving any results! Thats incredible! McHenry promised a “Pilot Program” in 2018 with no telling when the system will actually be operational. And DOJ/EOIR has a well-established record of problematic and highly disruptive “technology rollouts.”

THE INCREDIBLE:

As usual, the DOJ/EOIR “numbers” don’t add up. EOIR “touts” compleating approximately 100,000 cases in the 7-month period ending on August 31, 2017. That’s on a pace to complete fewer than 200,000 cases for a fiscal year. But, EOIR receives an average of at least 300,000 new cases each year (even without some of the “Gonzo” Enforcement by the Trump DHS). So, EOIR would have to “pick up the pace” considerably just to keep the backlogs from growing (something EOIR hasn’t done since before 2012). Not surprisingly, TRAC and others show continually increasing backlogs despite having more judges on board. To cut the backlog from 640,000 to 320,000 (50%) by 2020, the courts would have to produce an additional 160,000 annual completions in 2018 and 2019! That, in turn, would require completing a total of at least 460,000 cases in each of those years. That’s an increase of 230% over the rate touted by DOJ/EOIR in the Post article. Not going to happen, particularly since we’re already more than one month into FY 2018 and Congress has yet to authorize or appropriate the additional resources the DOJ wants!

WHAT’S CLEAR:

The DOJ hocus pocus, fake numbers, unrealistic plans, political scheming, cover-ups, blame shifting, and gross mismanagement of the U.S. Immigration Courts must end!
Unless and until Congress creates an independent, professionally managed Article I Immigration Court, any additional resources thrown into the current Circus being presided over by Jeff Sessions’s DOJ would be wasted.

PWS

11-04-17

GONZO’S WORLD: WARNING — GONZO ATTACKS LAWYERS WHO DARE TO DEFEND THE CONSTITUTIONAL RIGHTS OF MIGRANTS!

http://www.slate.com/blogs/the_slatest/2017/11/03/justice_department_declares_war_on_aclu_attorneys_who_oppose_trump.html Continue reading GONZO’S WORLD: WARNING — GONZO ATTACKS LAWYERS WHO DARE TO DEFEND THE CONSTITUTIONAL RIGHTS OF MIGRANTS!

GONZO’S WORLD: THE HILL: Professor Lindsay Muir Harris — Using REAL Data & Facts — Rips Apart Sessions’s “Ignorant” (& TOTALLY INAPPROPRIATE) Anti-Asylum Speech To EOIR!

http://thehill.com/opinion/immigration/355734-sessions-fundamentally-misses-the-mark-on-the-asylum-system

Lindsay writes:

“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.

. . . .

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”

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

Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).

I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.

Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia. Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”

Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.

This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.

Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188, 190 (3rd Cir. 2017).

Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!

What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.

Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.

Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.

Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.

Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.

Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.

PWS

10-31-17

THE GIBSON REPORT — 10-30-17

THE GIBSON REPORT – 10-30-17

TOP HEADLINES:

ICE Arrests Five Individuals with Pending Charges in New York After Detainers Were Not Honored

ICE arrested five individuals with pending charges in the New York City area after detainers filed by ICE were not honored. ICE states that since January 2017, 70 percent of the ICE arrests have been comprised of convicted criminals. AILA Doc. No. 17101900

Federal Judge In Hawaii Blocks Trump’s Third Attempt At Travel Ban

ImmProf: “In his ruling, Watson wrote that the third version of the ban, like those before it, “lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,’ ” evidence that he says would be necessary for the ban to be enforceable.”

Trump plans massive increase in federal immigration jails

USA Today: “In recent weeks, the Immigration and Customs Enforcement (ICE) agency has put out requests to identify privately-run jail sites in Chicago, Detroit, St. Paul, Salt Lake City and southern Texas, according to notices published on a federal contracting website. It did not publicly announce its plans to house 4,000 more detainees at the facilities.”

Who Is Represented in Immigration Court? Mexican Immigrants Lowest, Chinese Highest Representation Rates

ImmProf: “Representation rates for detained individuals have ranged between roughly 10 and 30 percent…. Representation rates for those who were never detained in contrast have generally ranged between 60 and 80 percent.”

Judge denies Arpaio’s motion to erase his criminal contempt conviction

AZ Central: “In her ruling, Bolton said while Trump’s pardon “undoubtedly spared Defendant from any punishment that might otherwise have been imposed. It did not, however, ‘revise the historical facts’ of this case.””

NAIJ Expresses Concerns Regarding Implementation of Quotas on IJ’s

The National Association of Immigration Judges (NAIJ) submitted a statement to the Senate Judiciary Committee Oversight Hearing on the DOJ urging Congress to exempt immigration judges from performance reviews, noting ALJs are already exempt because quotas are “antithetical to judicial independence.” AILA Doc. No. 17102062

ACTIONS

Survey on women and girls: Ford Foundation funded assessment of the challenges faced by immigrant women and girls in the United States
UNHCR feedback for materials for children: UNHCR intends to develop unbranded child-friendly materials on asylum for unaccompanied children in the United States. At this juncture, we would like to solicit input from practitioners who have represented unaccompanied children in the asylum process and also from unaccompanied children who are either currently or have been through the asylum process in the United States, whether it be before the Asylum Office or Immigration Court.” See attached.

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PWS

10-30-17

“TERRIFIC TRIO” INSPIRES STUDENTS, FIGHTS FOR IMMIGRANT JUSTICE AT UVA LAW IMMIGRATION CLINIC — PLUS EXTRA BONUS: Go Back To School This Fall — Take My “One-Lecture” Class “Basic Asylum Law for Litigators” Right Here!

HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

FACULTY

dsharuk@law.virginia.edu

Deena N. Sharuk

Lecturer
Biography
Courses

Deena N. Sharuk teaches Immigration Law at the Law School.

Sharuk is currently practicing as an immigration attorney at the Legal Aid Justice Center in Charlottesville, Virginia, where she manages the Virginia Special Immigrant Juvenile Project. She received her B.A. in international relations with a specialization in human rights from Wellesley College. Sharuk received her law degree from Northeastern University School of Law.

After graduation, she worked as a fellow at the American Civil Liberties Union of Massachusetts and later practiced immigration law in Massachusetts and Virginia. Sharuk was recently appointed as a task force core team member to foster a welcoming environment for immigrants and minorities in Charlottesville and Albemarle county. She often presents to the community about changes in immigration law.

EDUCATION

JD.   Northeastern University School of Law    2012     
BA.   Wellesley College    2007

FACULTY

tanishka@justice4all.org

Cell Phone

(434) 529-1811

Tanishka V. Cruz

Lecturer
Biography
Courses

Tanishka V. Cruz is an attorney in solo practice at Cruz Law, a Charlottesville-based immigration and family law firm. She is also an attorney with the Legal Aid Justice Center, where for the past two years she has focused on the management of the Virginia Special Immigrant Juvenile Project, an award-winning collaboration between LAJC and pro bono attorneys across the state. The project has saved more than 150 refugee children from likely deportation.

Cruz earned her B.A. from Temple University and her J.D. from the Drexel University Thomas R. Kline School of Law.

She currently supervises students in the Immigration Law Clinic, which LAJC runs in conjunction with the Law School

EDUCATION

JD.   Drexel University Thomas R. Kline School of Law    2012     
BA.   Temple University    2004

FACULTY

rmcfarland@justice4all.org

Rachel C. McFarland

Lecturer
Biography
Courses

Rachel C. McFarland is an attorney at Legal Aid Justice Center in Charlottesville. She focuses on cases in public and subsidized housing, unpaid wages for migrant workers and immigration.

McFarland earned her B.A. from the University of Richmond in 2009, where she majored in Latin American and Iberian studies, and rhetoric and communication studies. She received her J.D. from Georgetown University Law Center in 2015.

While at Georgetown, McFarland participated in the asylum clinic and received a certificate in refugees and humanitarian emergencies.

EDUCATION

JD.   Georgetown University Law Center    2015     
BA.   University of Richmond    2009

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

Wow, what a totally impressive and multi-talented team! All three of these amazing lawyers also work at the Legal Aid and Justice Center in Charlottesville, VA. They tirelessly pursue justice for our most vulnerable! They teach their clinical students “real life” client interview, case preparation, organization, time management, negotiation, and litigation skills while giving them a solid background in probably the most important and dynamic area in current American Law: U.S. Immigration Law.

They do it all with energy, enthusiasm, good humor, and inspiring teamwork that will help their students be successful in all areas of life and law while contributing to the American Justice system.

I am of course particularly proud of Rachel McFarland who was one of my wonderful Refugee Law and Policy students at Georgetown Law and has gone on to “do great things” and help others as a “charter member” of the “New Due Process Army.” Way to use that “RLP” training and experience, Rachel! I know that my good friend and colleague Professor Andy Schoenholtz who runs the Georgetown Law Certificate in Refugees and Humanitarian Emergencies program is also delighted at how Rachel has chosen to use her specialized training!

Thanks again, Rachel, for “making your professors proud” of your dedication and achievements. I hope that your students will do the same for you (and your terrific colleagues)!

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

For those of you who want to replicate the class experience in Charlottesville last Wednesday, here is the complete text of my class presentation: “BASIC ASYLUM LAW FOR LITIGATORS!”

BASIC ASYLUM LAW FOR LITIGATORS-2SPACE

BASIC ASYLUM LAW FOR LITIGATORS

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

UVA LAW IMMIGRATON CLINIC

Charlottesville, VA

October 25, 2017

BASIC ASYLUM LAW FOR LITIGATORS

OUTLINE

I. INTRODUCTION

II. WHO IS A REFUGEE?

Refugee Definition

Standard of Proof

What Is Persecution?

Nexus

III. PARTICULAR SOCIAL GROUP

The Three Requirements

Success Stories

The Usual Losers

What Can Go Wrong?

A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

I. INTRODUCTION

Good afternoon, and thanks for attending. As a former U.S. Immigration Judge at both the trial and appellate levels, and someone who has spent over four decades working in the field of immigration at all levels, I want to personally thank you for what you are doing.

Welcome to the “New Due Process Army” and our critical mission of forcing the U.S. Immigration Court system to live up to its unfulfilled promise of “guaranteeing fairness and due process for all.” Nothing is more important to achieving that mission than providing effective representation to individuals at the “retail level” of the system – the U.S. Immigration Courts.

There is a due process crisis going on in our U.S. Immigration Court system that threatens the integrity and the functioning of our entire U.S. justice system. And, the biggest need in the Immigration Courts is for effective legal representation of individuals seeking, expecting, and deserving justice in Immigration Court. Never has the need for pro bono attorneys been greater than it is now!

I’m truly delighted to be reunited with my friend and former student from Refugee Law & Policy at Georgetown Law, the wonderful Rachel McFarland. I am absolutely thrilled that Rachel has chosen to use her amazing talents to help those most in need and to be a teacher and an inspirational role model for others in the New Due Process Army. In addition to being brilliant and dedicated, Rachel exudes that most important quality for success in law and life: she is just one heck of a nice person! The same, of course, is true for your amazing Clinical Professor Deena Sharuk and her colleague Tanishka Cruz Thank you Deena, Tanishka, and Rachel, for all you are doing! All of you in this room truly represent “Due Process In Action.”

As all of you realize, our justice system is only as strong as its weakest link. If we fail in our responsibility to deliver fairness and due process to the most vulnerable individuals at the “retail level” of our system, then eventually our entire system will fail.

Our Government is going to remove those who lose their cases to countries where some of them undoubtedly will suffer extortion, rape, torture, forced induction into gangs, and even death. Before we return individuals to such possible fates, it is critical that they have a chance to be fully and fairly heard on their claims for protection and that they fully understand and have explained to them the reasons why our country is unwilling or unable to protect them. Neither of those things is going to happen without effective representation.

We should always keep in mind that contrary to the false impression given by some pundits and immigration “hard liners,” including, sadly and most recently our Attorney General, losing an asylum case means neither that the person is committing fraud nor that he or she does not have a legitimate fear of return. In most cases, it merely means that the dangers the person will face upon return do not fall within our somewhat convoluted asylum system. And, as a country, we have chosen not to exercise our discretion to grant temporary shelter to such individuals through Temporary Protected Status, Deferred Enforced Departure, or prosecutorial discretion (“PD”). In other words, we are returning them knowing that the effect might well be life threatening or even fatal in many cases.

I also predict that you will make a positive difference in the development of the law. The well-prepared and articulate arguments that you make in behalf of migrants are going to get attention and consideration from judges at all levels far beyond those presented by unrepresented individuals who can’t even speak English. It’s simply a fact of life. And, if you can win these cases, everything else you do in the law will be a “piece of cake.” I guarantee it.

Obviously, in representing your clients it is important to be polite, professional, and to let the excellence of your preparation, research, and arguments speak for you. In an overwhelmed system, judges are particularly grateful for all the help they can get. However, they are also under excruciating pressure to complete cases, particularly detained cases. So it is important to clearly identify your issues, focus your examination, and make sure that your “phone books” of evidence are properly organized and that there is a “road map” to direct the Immigration Judge and the Assistant Chief Counsel to the key points. You want to help the judge, and your opponent, get to a “comfort zone” where he or she can feel comfortable granting, or not opposing or appealing, relief.

I do want to offer one additional important piece of advice up front. That is to make sure to ask your client if her or his parents or grandparents, whether living or dead, are or were U.S. citizens. Citizenship is jurisdictional in Immigration Court, and occasionally we do come across individuals with valid but previously undeveloped claims for U.S. citizenship. You definitely want to find out about that sooner, rather than later, in the process.

My presentation today will be divided into three sections. First, we will go over the basic refugee definition and some of its ramifications. Second, I will provide some basic information about particular social group or “PSG” claims. Third, I will give you fourteen practical pointers for effectively presenting asylum cases in Immigration Court.

Please feel free to ask questions as we go along, or save them until the end.

II. WHO IS A REFUGEE?

In this section, I will first discuss the INA’s definition of “refugee.” Second, I will talk about the standard of proof. Third, we will discuss the meaning of the undefined term “persecution.” I will conclude this section with a discussion of the key concept of “nexus.”

A. Refugee Definition

An “asylee” under U.S. law is basically an individual who satisfies the “refugee” definition, but who is in the U.S. or at our border in a different status, or with no status at all. Most of your clients will fall in the latter category.

The definition of “refugee” is set forth in section 101(a)(42) of the INA, 8 U.S.C. § 1101(a)(42). There are four basic elements:

Generally, outside the country of nationality (not usually an issue in border cases);
Unwilling or unable to return (failure of state protection);
Because of persecution (undefined) or a well founded fear of persecution;
On account of race, religion, nationality, membership in a particular social group, or political opinion (“nexus”).

There are some important exclusions to the refugee definition, the most frequent ones being the one-year filing deadline for asylum, those who have committed serious nonpolitical crimes outside the U.S. or particularly serious crimes in the U.S., persecutors of others, those who have rendered material support to a terrorist organizations, and those who are firmly resettled in another country. I won’t be going into these in detail today, but you should know that they are there, and I’d be happy to take questions on them. The ground most likely to come up in your cases is the one relating to individuals who have committed crimes.

Some individuals who are ineligible for asylum might still be eligible to receive withholding of removal under section 243(b) of the INA, 8 U.S.C., § 1253(b) or withholding of removal under the Convention Against Torture (“CAT”). And, everyone can potentially seek so-called “deferral of removal” under the CAT.

Also, please note that because of the requirement of a “nexus” to a “protected ground” not all types of harm trigger protection. In particular, crimes, wars, random violence, natural disasters, and personal vengeance or retribution do not automatically qualify individuals for refugee status, although “persecution“ within the meaning of the INA and the Convention certainly can sometimes occur in these contexts. However, some of these circumstances that fail to result in refugee protection because of the “nexus” requirement might be covered by the CAT, which has no nexus requirement.

The source of the “refugee” definition is he Refugee Act of 1980 which codified and implemented the U.N Convention and Protocol on the Status of Refugees to which the U.S. adhered in 1968. There are, however, some differences between the U.S. definition and the Convention definition, which I won’t go into today. But, again, you should be aware they exist, since some international or U.N. interpretations of the definition might be inapplicable under U.S. law.

B. Standard of Proof

The standard of proof in asylum cases was established by the Supreme Court in 1987 in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In asylum cases, a “well-founded” fear is something far less than a probability. It is an “objectively reasonable fear” or the type of fear that a “reasonable person” would have under the circumstances. Most courts and authorities have adopted the “10% chance” example set forth in Justice Stevens’s plurality opinion in Cardoza.

The BIA’s implementation of Cardoza, the 1987 precedent Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), makes the point that the persecution can be “significantly less than probable.” Your challenge as lawyers will be to get judges at all levels of our system to actually apply the generous Cardoza-Mogharrabi standard rather than just mouthing it. Sadly, the latter still happens too often, in my opinion.

A different and higher “more likely than not” standard applies to withholding of removal under the INA and to withholding and deferral of removal under the CAT. One great tool for satisfying the standard of proof for asylum or withholding under the Act is the rebuttable regulatory presumption of future persecution arising out of past persecution set forth in 8 C.F.R. 1208.13. This is a really important regulation that you should basically learn “by heart.” I will reference it again in the “practical tips” section of this presentation.

Withholding and CAT are more limited forms of relief than asylum. While they usually provide work authorization, they do not lead to green card status, allow the applicants to bring relatives, or travel abroad. They are also easier to revoke if conditions change. Nevertheless, there is one major advantage to withholding and CAT: they save your client’s life. Sometimes, that’s the best you can do. And, fundamentally, saving lives is really what this business is all about.

C. What Is Persecution?

Remarkably, neither the Convention nor the INA defines the term “persecution.” Consequently, U.S. Immigration Judges, the Board of Immigration Appeals (“BIA”), and the U.S. Courts of Appeals are constantly referring to certain types of harm as “mere discrimination or harassment” not “rising to the level” of “persecution.” Often these highly subjective conclusions seem to be more in the mind of the judicial beholder than in the record or the law.

In the absence of a firm definition, I have found the most useful practical guidance to be in an opinion by the famous, or infamous, Judge Richard Posner, who recently retired from the Seventh Circuit Court of Appeals, in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7^th Cir. 2011). Judge Posner gave three examples.

“The three forms are discrimination, harassment, and persecution. The first [discrimination] refers to unequal treatment, and is illustrated historically by India’s caste system and the Jim Crow laws in the southern U.S. states. Discrimination normally does not involve the application of physical force, except as punishment for violation of the discriminatory laws.”

Second: “Harassment involves targeting members of a specified group for adverse treatment, but without the application of significant physical force. Had [police] furious at [the respondent’s] being soft on Albanians followed his taxi (he was a taxicab driver in Macedonia) and ticketed him whenever he exceeded the speed limit by one mile per hour, that would be an example of harassment. A common form of sexual harassment is pestering a subordinate for a date or making lewd comments on her appearance, or perhaps hugging her, which is physical but generally not violent.”

Third: “Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.”

These definitions are, of course, not binding outside the Seventh Circuit. But, I find them to be practical, usable definitions that I certainly found helpful in making asylum decisions in the Fourth and other circuits.

D. Nexus

The concept of “nexus” or “on account of” has become critical in asylum adjudication. Indeed, that is where many of your upcoming battles will be focused. In many cases these days the DHS will concede the “particular social group” (“PSG”) and just argue that the harm has no “nexus” to that PSG or any other protected ground.

The REAL ID Act amended the INA to require that for an asylum applicant to prove ”nexus” or “on account” of any protected ground, he or she must show that the protected ground is “at least one central reason” for the feared persecution. INA § 208(b)(1)(B)(i), 8 U.S.C. § 1208(b)(1)(B)(i) While this did not eliminate the frequently encountered “mixed motive” situation, it was intended to “tighten up” prior case law that had referred to the persecution as stemming “in whole or in part” from a protected ground.

The BIA ruled in Matter of C-T-L-, 25 I & N Dec. 341 (BIA 2010) that the “one central reason” test also applies to nexus in the withholding of removal context. However, the Ninth Circuit rejected the BIA’s interpretation in Barajas-Romero v. Lynch, 846 F.3d 351 (BIA 2014), maintaining that the more generous “in whole or in part” test should continue to apply to withholding cases under the INA. To my knowledge, the Fourth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fourth Circuit at present.

Unfortunately, the BIA has given a very narrow reading to the “one central reason” test. In a recent precedent, Matter of L-E-A-, 27 I &N Dec. 40 (BIA 2017), the respondent was a member of a family social group. He clearly was targeted by a cartel in Mexico because he was a member of a family that owned a grocery store. In other words, “but for” the respondent’s family membership, he would not have been targeted by the gang.

Nevertheless, instead of granting the case, the BIA looked beyond the initial causation. The BIA found that “the respondent was targeted only as a means to achieve the cartel’s objective to increase its profits by selling drugs in the store owned by his father. Therefore the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent. Any motive to harm the respondent because he was a member of his family was, at most, incidental.” 27 I&N Dec. at 46 (citations omitted). Accordingly, the BIA denied the case.

Unfortunately, the BIA cited and relied upon an analysis of nexus in a similar case by the Fifth Circuit in Ramirez-Mejia v. Lynch, 794 F.3d 485n (5^th Cir. 2015). The BIA, and to some extent the Fifth Circuit, have essentially used the “nexus” requirement to “squeeze the life” out of the family PSG. We can see that the normal rules of legal causation have been suspended. The respondent would not have been targeted by the cartel had he not belonged to this particular family. Yet, the BIA searched for and found an “overriding motive” that did not relate to a protected ground and determined that to be the “central reason” and the family PSG to be “tangential.”

What kind of case could succeed under L-E-A-? Well, perhaps not wanting to give anyone any practical ideas on how to qualify, the BIA searched history and came up with the execution of the Romanov family by the Bolsheviks as an example of a where family was a “central reason” for the persecution. So, maybe if the respondent’s father were a major donor to a political party that opposed cartels, a member of a religion that opposed drugs, or a member of a hated minority group, the respondent’s family membership could have been “at least one central reason.”

But the Romanov family case would have been grantable on actual or imputed political opinion grounds. The other examples I gave would have been more easily grantable on actual or implied political opinion, religion, or nationality grounds. So the BIA appears designed to make the family PSG ground largely superfluous.

This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A,

and the BIA is unlikely to retreat from L-E-A-. On the other hand, the Fourth Circuit might not go along with the L-E-A- view, although Judge Wilkins appeared anxious to endorse L-E-A- in his separate concurring opinion in Valasquez v. Sessions, 866 F.3d 188 (4^th Cir. 2017).

To my knowledge, L-E-A- has not actually been considered and endorsed by any circuit to date. To me, it appears to be inconsistent with some of the existing family-based nexus case law in the Fourth and Ninth Circuits. See, e.g., Zavaleta-Policiano v. Sessions, 873 F.3d 241 (4^th Cir. 2017) (slamming BIA for misapplying concept of “mixed motive”). So, I wouldn’t be shocked if a “circuit split” eventually develops and the issue finally wends its way to the Supreme Court. Who knows, maybe one of you will be arguing it.

In any event, in my view, it is too early for you to “waive” strong nexus arguments even if they will be rejected under L-E-A-. On the other hand, that’s not likely to solve your client’s currentproblems.

So, what can you do? First, look for legitimate ways to distinguish L-E-A-. Assume that the DHS will “pull out the stops” in arguing that everything but family was the central reason –greed, lust, crime, random violence, personal vengeance, envy, resentment, etc. Look for evidence in the record that the dispute really was, to a major extent, about family, rather than one of the non-qualifying grounds.

Second, look for some qualifying non-family PSG or a “more conventional” religious, nationality, racial, or political motive.

Third, consider the possibility of CAT protection. The advocacy community probably underutilizes CAT. CAT doesn’t have a specific nexus requirement and often can be proved by extensive documentary or expert evidence, both UVA Clinic specialties. Sure, the standard of proof is high and CAT is a lesser form of relief than asylum. But, it saves your client’s life! And, if the nexus law changes in your favor, you can always file a motion to reopen to re-apply for asylum under the changed law.

This is an area of the law where creativity, preparation, and persistence often pay off in the long run. So, don’t give up. Keep on fighting for a reasonable and proper application of the “refugee” definition and for the rights of your clients.

III. PARTICULAR SOCIAL GROUP

In this section I will talk about the three basic requirements for a PSG, the success stories, the usual failures, things that can go wrong, and offer you a few practice pointers directly related to PSG claims.

A. The Three Requirements

The BIA has established three requirements for a PSG.

Immutability or fundamental to identity;
Particularity; and
Social distinction.

These three requirements are usually used to deny rather than grant protection. Indeed, most of the BIA’s recent precedents on PSG are rendered in a decidedly negative context.

There was a time about two decades ago when many of us, including a number of BIA Members, thought that immutability or fundamental to identity was the sole factor. But, following our departure, the BIA attached the additional requirements of “particularity” and “social visibility” now renamed “social distinction” to narrow the definition and facilitate denials, particularly of gang-based PSG claims.

The particularity and social distinction requirements basically work like a “scissors” to cut off claims. As you make your definition more specific to meet the “particularity” requirement it often will become so narrow and restrictive that it fails to satisfy “social distinction.” On the other hand, as your proposed PSG becomes more socially distinct, it’s likely that it will become more expansive and generic so that the BIA will find a lack of “particularity.”

While the UNHCR and many advocacy groups have argued for a return of immutability as the basic requirement with “social distinction” as an alternative, not an additional requirement, the BIA recently reaffirmed its “three criteria” approach. These cases, Matter of M-E-V-G-, 26 I &N Dec. 227 (BIA 2014) and its companion case Matter of W-E-G-, 26 I &N Dec. 208 (BIA 2014), are “must reads” for anyone doing PSG work.

About the only bright spot for advocates was that the BIA in M-E-V-G– rejected the commonly held view that no gang-based case could ever succeed. The BIA said that its decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. Social group determinations are made on a case-by-case basis. For example, a factual scenario in which gangs are targeting homosexuals may support a particular social group claim. While persecution on account of a protected ground cannot be inferred merely from acts of random violence and the existence of civil strife, it is clear that persecution on account of a protected ground may occur during periods of civil strife if the victim is targeted on account of a protected ground.” 26 I&N Dec. at 251 (citations omitted).

In other words, the Board is asking for evidence intensive case-by-case adjudications of various proposed PSGs. Leaving aside the fairness of doing this in a context where we know that most applicants will be detained and unrepresented, I cannot think of an organization better suited to give the BIA what it asked for than the UVA Clinic – you guys!

B. Success Stories

There are four basic groups that have been relatively successful in establishing PSG claims.

LGBT individuals under Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990);
Women who fear or suffered female genital mutilation (“FGM”) under my decision in Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996);
Victims of domestic violence under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); and
Family under the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4^th 2011), a case in which I was the Immigration Judge and Jones Day was pro bono counsel.

You should note that the first three of these success stories had something in common: strong support across a wide spectrum of the political universe. In fact, in LGBT, FGM, and domestic violence cases the DHS eventually changed its position so as to not oppose the recognition of the PSG. This, in turn, either facilitated or perhaps effectively forced the BIA to recognize the PSG in a precedent.

Family, on the other hand, has generally not developed the same type of political consensus as a PSG for asylum purposes. I have already discussed in detail how notwithstanding the clear logic of family as a PSG, the BIA uses a highly restrictive reading of the “nexus” requirement that prevents many family groups from qualifying for protection.

There are two additional important points established by Kasinga. First, the respondent does not have to establish that the persecutor acted or will act with “malevolent intent.” Persecution may be established even where the persecutor was inflicting the harm with the intent to “help” or “treat” the respondent. This comes up frequently in connection with LGBT claims.

Second, Kasinga holds that to justify a discretionary denial of asylum for a respondent who otherwise meets all of the statutory requirements, the adverse factors must be “egregious” so as to outweigh the likely danger of persecution.

You are likely to find a number of cases involving LGBT individuals, domestic violence, and family. In the Arlington Immigration Court during my tenure these cases succeeded at an extremely high rate, so much so that many of them went on my “short docket.” However, that was then and this is now. As they say, “There’s a new sheriff in town and, unfortunately in my view, he looks a lot like the infamous “Sheriff Joe.”

Finally, there are some “up and comer” PSG’s that have had success in some of the circuits and might eventually gain widespread acceptance. Among these are witnesses, landowners, and women subjected to forced marriages. The latter often can more successfully be presented under the domestic violence category. The Fourth Circuit actually has recognized “former gang members” as a potential PSG, although many such individuals will have difficulties under the criminal exclusions from the refugee definition. Martinez v. Holder, 740 F.3d 902 (4^th Cir. 2014).

C. The Usual Losers

PSGs that don’t fit any of the categories I just mentioned are usually “losers.” Chief among the “usual losers” are victims of crime other than domestic violence, informants, extortion victims, and those resisting gang recruitment. You’ll probably see a fair number of such cases. Your challenge will be how to present them in a way that overcomes the negative connotations normally associated with such claims.

D. What Can Go Wrong?

Lots of things can go wrong with a PSG case. First, there is the issue of “circularity.” Generally, a PSG cannot be defined in terms of itself. For example “victims of crime” would generally be a “circular” social group.

An easy test is to use your proposed PSG in a simple sentence: “This respondent was harmed to overcome the characteristic of being _________. If you can’t say with a straight face in open court, don’t use it. For example, “this respondent was raped to overcome her characteristic of being a victim of rape” isn’t going to make it as a PSG.

We’ve already talked about how PSG claims can be attacked by denying the nexus. There are also the old favorites of lack of credibility or corroboration. Then, there is failure to meet the one-year filing deadline, no failure of state protection, reasonably available internal relocation, and fundamentally changed country conditions.

That’s why if you’re considering a PSG claim, it’s always wise to have “Plan B.” The problem today, however, is that the Administration has restricted or limited many of the “Plans B.” For example, until recently, the number one “Plan B” was to request prosecutorial discretion (“PD”) from the Assistant Chief Counsel if the respondent had sympathetic humanitarian factors, a clean criminal record, and strong ties to the U.S. However, for all practical purposes, this Administration has eliminated PD.

Nevertheless, its always worthwhile to think about whether things like Wilberforce Act treatment for certain unaccompanied juveniles, Special Immigrant Juvenile Status, “T” visas for trafficking victims, “U” visas for victims of crime, or benefits under the Violence Against Women Act (“VAWA”) might be realistic possibilities for your client.

E. A Few Practical Tips on PSG

I’m going to close this section by offering you a few practical tips on presenting PSG cases that will also tie into my next major section.

First, think “25 words or fewer.” Just like the old boxtop contests from my youth. There are few, if any, known examples of success using lengthy, convoluted social group definitions.

Second, remember folks, it isn’t “making sausages.” The definition that goes in must be the same one that comes out the other end. Social groups that “morph” during the hearing just have no chance.

Third, be prepared to explain how your proposed particular social group meets the current BIA criteria of immutability, particularity, and social distinction, formerly known as “social visibility.”

Fourth, make sure that your respondent is actually a member of the particular social group you propose. You would be surprised at the number of counsel who propose a particular social group definition and then fail to offer proof that their client actually fits within that group.

Fifth, as I just mentioned, check your particular social group for “circularity.”

Sixth, and finally, be prepared for an onslaught of other arguments against your case, the chief of which probably will be “no nexus.” Normally, the DHS will “pull out all the stops” to prevent the recognition of a new PSG.

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

You should all have received a copy of my comprehensive three-page treatise on asylum law entitled “Practical Tips For Presenting an Asylum Case In Immigration Court,” Feb. 2017 Revised Edition. I’m going to quickly take you through the fourteen practical tips outlined there.

My first tip is, “Read a Good Book.” My strong recommendation is the one that has always been at the top of the Immigration Court Best Seller List: Title 8 of the Code of Federal Regulations, 2017 edition.

Specifically, I invite your attention to Chapter 1208, which contains the seeds of all winning theories of asylum law, past, present, and future. It will also give you gems like how to shift the burden of proof to the DHS and how to win your case even if your client does not presently have a well-founded fear of persecution.

Second, “Get Real.” The REAL ID Act, P.L. 109-13, 119 Stat. 231 (2005), deals with credibility and burden of proof issues in asylum and other cases and applies to applications “made” on or after May 11, 2005, which will be all of your cases. Read it and decide how it can help you and how you can respond to DHS arguments.

Third, “Know One When You See One.” The one-year filing requirement of section 208(a)(2)(B) of the INA bars asylum in some cases. Your burden of proof on the one-year filing issue is very high: “clear and convincing evidence.” Judicial review might be limited. But, there are exceptions. Read the statute and the regulations at 8 C.F.R. § 1208.4 to find out how the filing requirement works and what arguments might be made to preserve a late asylum application. Remember that the one-year requirement does not apply to withholding of removal under the INA or to CAT applications.

At the beginning of each asylum case, I asked the parties to identify the issues. Respondents’ attorneys invariably told me about past persecution, future persecution, nexus, gender-based persecution, exceptions to the one year filing deadline, weird social groups, and so forth. The issue they sometimes fail to identify is the one that’s always first on my list. What is it?

That’s right, credibility, is the key issue in almost all asylum litigation. So, my fourth rule is “Play To Tell the Truth.” You must understand what goes into making credibility determinations and why the role of the Immigration Judge is so critical. Often, adverse credibility determinations are difficult to overturn on appeal. It’s all about deference.

But, credible testimony might not be enough to win your case. That’s why my fifth rule is “Don’t Believe Everything You Read.” Both appellate and trial court decisions often recite rote quotations about asylum being granted solely on the basis of credible testimony.

However, to give your client the best chance of winning his or her asylum case in immigration Court, under the law applicable in most circuits, you’re likely to need a combination of credible testimony and reasonably available corroborating evidence. Read Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997), largely codified by REAL ID, and find out what it really takes to win an asylum case in most Immigration Court.

In this respect, you should remember my corollary sixth rule “Paper Your Case.” According to Fourth Circuit precedent, even a proper adverse credibility ruling against your client might not be enough for an Immigration Judge to deny the asylum claim. The Judge must still examine the record as a whole, including all of the documentation supporting the claim, to determine whether independent documentary evidence establishes eligibility for asylum. Read Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004) and discover how the power of independent documentary evidence can overcome even a sustainable adverse credibility finding. Also, remember that the REAL ID Act directs Immigration Judges to consider “the totality of the circumstances, and all relevant factors.”

“Read Your Paper” is my seventh important rule. You and your client are responsible for all the documentation you present in your case. Nothing will give you nightmares faster than having a client present false or fraudulent documentation to the Immigration Court. In my experience, I’ve had very few attorneys able to dig out of that hole. So, don’t let this happen to you.

My eighth rule is “Pile it On.” Sometimes, as demonstrated in one of my very favorite cases Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998), reaffirmed in Matter of L-K-, 23 I&N Dec. 677, 683 (BIA 2004), you will be able to take a series of events happening to your respondent, his or her family, or close associates, none of which individually perhaps rises to the level of persecution, and combine them to win for your client.

My ninth rule is “Don’t Get Caught by the Devil.” The devil is in the details. If you don’t find that devil, the DHS Assistant Chief Counsel almost certainly will, and you will burn. Also, make sure to put your client at ease by carefully explaining the process and by going over the direct and cross-examinations in advance. Remember the cultural and language barriers that can sometimes interfere with effective presentation of your case.

I found the DHS Assistant Chief Counsel in Arlington were all very nice folks. They were also smart, knowledgeable, well prepared, and ready to vigorously litigate their client’s positions. They handled more trials in a year than most litigators do in a lifetime. So, beware and be prepared. You would also be wise to contact the Assistant Chief Counsel in advance of any merits hearing to discuss ways of narrowing the issues and possible “Plans B.”

My tenth rule is “Know Your Geography.” Not all Immigration Courts and Circuit Courts of Appeals are located on the West Coast. The BIA certainly is not. You must know and deal with the law in the jurisdiction where your case actually is located, not in the one you might wish it were located.

For example, the Arlington Immigration Court is in Crystal City. That is in Virginia, which is not presently part of the Ninth Circuit.

This is something that I once had trouble with, coming to the Arlington Court from a job where the majority of asylum cases arose in the Ninth Circuit. But, I got over it, and so can you.

My eleventh rule is to “Get Physical.” In defining persecution, some Circuits have emphasized “the infliction or threat of death, torture, or injury to one’s person or freedom.” See, e.g., Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007). While the Circuits and the BIA have also recognized non-physical threats and harm, your strongest case probably will be to emphasize the physical aspects of the harm where they exist. Mirisawo v. Holder, 599 F.3d 391 (4th Cir. 2010); Matter of T-Z-, 24 I & N Dec. 163 (BIA 2007).

I particularly recommend the Fourth Circuit’s decision in Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), which found that the BIA erred in rejecting my conclusion that “unrebutted evidence of death threats against [the respondent] and his family members, combined with the MS-13’s penchant for extracting vengeance against cooperating witnesses, gave rise to a reasonable fear of future persecution.” In other words, I was right, and the BIA was wrong. But, who’s keeping track?

My twelfth rule is “Practice, Practice, Practice.” The Immigration Court Practice Manual, available online at the EOIR web site http://www.usdoj.gov/eoir/vll/OCIJPracManual/ocij_page1.htmwas effective July 1, 2008, and replaced all prior local rules. All filings with the Immigration Court must comply with the deadlines and formats established in this Practice Manual. The Practice Manual has a very helpful index, and it covers just about everything you will ever want to know about practice before the Immigration Courts. It contains useful appendices that give you contact information and tell you how to format and cite documents for filing in Immigration Court. Best of all, it’s applicable nationwide, so you can use what you learn in all Immigration Courts.

My thirteenth, rule is “It’s Always Wise to Have ‘Plan B.’” As I have pointed out, asylum litigation has many variables and opportunities for a claim to “go south.” Therefore, it is prudent to have a “Plan B” (alternative) in mind.

Among the “Plans B” that regularly came up in Arlington were: prosecutorial discretion (“PD”), Special Rule Cancellation of Removal (“NACARA”), Temporary Protected Status (“TPS”), non-Lawful Permanent Resident Cancellation of Removal (“EOIR 42-B”), Deferred Action for Childhood Arrivals (“DACA”), Special Immigrant Juvenile (“SIJ”) status, I-130 petition with a “stateside waiver” (“I-601A”), “Wilberforce Act” special processing for unaccompanied children (“UACs”), T nonimmigrant status (for certain human trafficking victims), and U nonimmigrant status (for certain victims of crime). In my experience, many, perhaps the majority, of the “happy outcome” asylum cases coming before me were resolved on a basis “OTA,” that is “other than asylum.”

But, unfortunately in my view, the “Plan B” world is rapidly changing. So, please listen very carefully to the caveat that comes next.

Fourteenth, hope for the best, but prepare for the worst. As some have said “there’s a new Sheriff in town,” and he’s announced a “maximum immigration enforcement” program targeting anyonewho has had any run-in with the law, whether convicted or not. He also intends to detain all undocumented border crossers or applicants for admission at the border. So, you can expect morearrests, more detention (particularly in far-away, inconvenient locations like, for instance, Farmville, VA), more bond hearings, more credible and reasonable fear reviews, more pressure to move cases even faster, and an even higher stress level in Immigration Court.

The “Plans B” involving discretion on the part of the Assistant Chief Counsel, like PD, DACA, and stateside processing, and even waiving appeal from grants of relief, are likely to disappear in the near future, if they have not already. In many cases, litigating up through the BIA and into the Article III Federal Courts (where the judges are, of course, bound to follow the law but not necessarily to accept the President’s or the Attorney General’s interpretation of it) might become your best, and perhaps only, “Plan B.”

V. CONCLUSION

In conclusion, I have told you about the basic elements of the refugee definition and how it is used in adjudicating asylum cases. I have also discussed the requirements and the pros and cons of the PSG protected ground. And, I have shared with you some of my practical tips for presenting an asylum case in U.S. Immigration Court.

Obviously, I can’t make you an immigration litigation expert in in afternoon. But, I trust that I have given you the basic tools to effectively represent your clients in Immigration Court. I have also given you some sources that you can consult for relevant information in developing your litigation strategy and your case.

I encourage you to read my blog, immigrationcourtside.com, which covers many recent developments in the U.S. Immigration Courts. As you come up with victories, defeats, good ideas, appalling situations, or anything else you think should be made more widely available, please feel free to submit them to me for publication. I also welcome first-hand accounts of how the system is, or isn’t, working at the “retail level.”

Thanks again for joining the New Due Process Army and undertaking this critical mission on behalf of the U.S. Constitution and all it stands for! Thanks for what you are doing for America, our system of justice, and the most vulnerable individuals who depend on that system for due process and justice.

Thanks for listening, good luck, do great things, and Due Process Forever! I’d be pleased to answer any additional questions.

(10-30-17)

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PWS

10-30-17

LA TIMES; “DETAINED AND DEFENSELESS” – How Our Government Specifically Designed An American Gulag (Complete With “Kangaroo Courts”) To Deny Migrants Their Statutory & Due Process Rights To Counsel, & Then Simply Lies About What They Are Doing!

http://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

Kyle Kim writes:

“Judy London merges onto the freeway, heading northeast toward a high desert already baking under a recently risen sun. From West Los Angeles, she faces a two-hour, 100-mile drive to the Adelanto Detention Facility to meet a client who is being deported. The commute time can double if rush-hour traffic is particularly bad.

London arrives at the facility and walks up a concrete path flanked by gravel to the detention facility’s entrance. Once inside, rows of chairs and lockers greet her, as does a guard. She checks in but can’t meet her client yet — the facility is undergoing its daily head count, and she has to wait until it’s finished.

It can take another hour from this moment. London still has to be cleared through security and have a guard escort her client to her.

Finally, she has to wait for an interview room. Adelanto Detention Facility has an average daily population of 1,785, but only a handful of rooms designated for lawyer-client meetings. And once a room is available, she’ll have to take all her notes by hand. The facility prohibits the use of phones, laptops and other electronic devices.

London, like many immigration attorneys, spends a lot of time just trying to meet face-to-face with her clients. It’s a good day when she actually meets them. On bad days, she can spend hours traveling, only to be turned away.

The facility in recent months has refused entrance to attorneys for a variety of reasons, including a chickenpox outbreak and hunger strikes.

“Generally, it is far easier for me, as an attorney, to walk into a high-security local or federal prison unannounced to visit a client than it is to get into a detention facility to see someone. And that is odd,” said London, directing attorney for Public Counsel’s Immigrants’ Rights Project.

::

Most immigrants detained by Immigration and Customs Enforcement while their deportation cases are being considered don’t have an attorney.

Immigration detention is considered civil detention and, as a result, detainees do not have a right to counsel as they would in criminal cases.

Immigration attorneys say geography is a significant hurdle.

Many ICE facilities in the U.S. are located in smaller cities, hours from cities where most legal aid organizations operate. So even if the government makes legal aid resources available, they can be miles away.

About 30% of detained immigrants are held in facilities more than 100 miles from the nearest government-listed legal aid resource, according to a Times analysis of 70 ICE detention centers.

Of these, the median distance between the facilities and the nearest government-listed legal aid was 56 miles.

The farthest is Etowah County Detention Center in Gadsden, Ala. Alabama doesn’t have an immigration court, so immigrants detained there are referred to the Loyola Law Clinic — 408 miles away in New Orleans.

Immigrants facing deportation are provided with a list of available pro bono legal aid and services. The list is administered by the Justice Department’s Executive Office for Immigration Review, which calls it an “essential tool.”

Providers on the pro bono list — mostly nonprofits — aren’t required to offer free services to every detainee, according to the Justice Department, and only a lucky few get help from pro bono lawyers.

UCLA law professor Ingrid Eagly analyzed 1.2 million deportation cases between 2007 and 2012 and found that just 2% of immigration detainees had free legal representation. Most immigrant attorneys came from solo practitioners or small firms.

The location of detention facilities in remote locations can pose a logistical challenge to the court system as well as the attorneys. Court procedure can vary by jurisdiction. Some have judges at the facility. Some conduct business by teleconference. Some use a combination of the two.

. . . . .

ICE officials did not answer specific questions about why detained immigrants are significantly less likely to obtain counsel or allegations that systemic hurdles limit access to legal representation.

The agency has previously said that it is “very supportive and very accommodating” to detainees who wish to have a lawyer. ICE spokeswoman Jennifer D. Elzea said the department maintained that position.

“ICE is committed to allowing detainees access to visits, telephones, legal counsel and law library resources. Additionally, all facilities have notifications posted throughout providing information about pro bono legal services,” Elzea said in a statement.

No attorney or legal aid group interviewed for this report agreed with ICE’s position.

“The government is locking people up in remote jails and prisons hundreds of miles from attorneys, and arguing that having phones there that sometimes work is sufficient access to counsel,” National Immigrant Justice Center Executive Director Mary Meg McCarthy said in response to ICE’s statement.

“The government spends billions of dollars to sustain — and expand — a system that obstructs lawyers’ ability to defend their clients’ due process rights. We’ve been told by ICE that the agency does not consider availability or proximity of counsel as any part of its assessment of the suitability of a new detention center, and we have no reason to believe that it cares at all whether people in detention have lawyers,” she said.

Immigrant rights proponents see little chance of reform under President Trump.

The administration’s executive orders on immigration have reversed enforcement priorities. Arrests increased by 37.6% during Trump’s first 100 days in office compared with the same period in 2016, according to ICE data.

The fight for reform will take place in more liberal cities and states, and through the efforts of legal aid groups.

The Southern Poverty Law Center recently started the Southeast Immigrant Freedom Initiative. The goal is to provide counsel to every detained immigrant in the Southeast — a region with a high number of deportation cases.

But the program, said Dan Werner, who directs the initiative, was a stopgap measure built out of necessity.

“The real solution is systemic reform of immigration policy,” he said.

In March, New York became the first state to dedicate funding to providing pro bono legal services to every detained immigrant.

And in June, California lawmakers put $45 million in the state budget to expand legal services for immigrants.

Attorneys and advocates view such measures as incremental.

“In most cases, there won’t be accountability in the government,” London said, “so there’s no incentive for them to address it.”

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Read the complete article at the link.

Next time you hear Jeff “Gonzo Apocalyto” Sessions deliver one of his self-righteous, fact-free attacks on asylum seekers and their advocates, remember that the REAL FRAUDSTER HERE IS “GONZO” HIMSELF and his knowingly false narrative about asylum seekers that he uses to “cover up” the intentional abuses of legal and human rights being carried out by ICE and EOIR under his direction. Accountability, addressing the real need for reforms in the immigration enforcement and Immigration Court systems to insure Constitutional Due Process? Not going to happen on “Gonzo’s Watch.”

PWS

10-23-17

CHICAGO TRIBUNE: Asylum Experts Michelle Mendez & Swapna Reddy Challenge Gonzo’s Bogus Apocalyptic Smear Of U.S. Asylum Applicants!

http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-asylum-sessions-immigration-1024-20171023-story.html

Michelle and Swapna write:

“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?

These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.

Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.

Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.

Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.

And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.

Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”

But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.

The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.

Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.

. . . .

Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.

Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”

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

Read the complete article at the link.

Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.

PWS

10-22-17

DRAMA CONTINUES FOR PREGNANT TEEN AS APPEALS COURT LOOKS TO “BROKER DEAL” WITHOUT DECIDING ANYTHING!

http://www.slate.com/blogs/the_slatest/2017/10/20/d_c_circuit_s_dubious_compromise_won_t_guarantee_undocumented_minor_s_abortion.html

Mark Joseph Stern reports for Slate:

“On Friday afternoon, the U.S. Court of Appeals for the District of Columbia Circuit granted an undocumented minor in federal custody conditional access to abortion—within the next few weeks. The decision marks a compromise by two conservative judges keen to preserve their anti-abortion bona fides without transgressing Supreme Court precedent, which clearly protects the minor’s right to terminate her pregnancy. This ruling will force the minor at the heart of this case, who is referred to as Jane Doe, to continue her unwanted pregnancy for at least 11 more days.

. . . .

Thus, it is quite possible that Kavanaugh’s handiwork will fail, and the government will be back in court in a few weeks arguing against Doe’s abortion rights. By that point, Doe will be approaching the point at which she cannot legally terminate her pregnancy in Texas. The government’s intervention has already prevented her from getting a first-trimester abortion, a simpler procedure than a second-trimester abortion. Now HHS has been handed a strategy to keep her pregnant for weeks longer. Kavanaugh may think he has played the conciliator in this case. But in reality, he’s given the government another chance to run down the clock on Doe’s abortion rights.”

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

Read Stern’s complete article at the above link.

Looks to me like Judge Kavanaugh’s political instincts and desire to keep alive a possible nod for the Supremes trumps his responsibility to the Constitution, to litigants, and to the public to make tough decisions (which, after all, is what he actually gets paid for). Little wonder that trial judges (not as many places to “run and hide” at the “retail level”) often look at their “ivory tower” appellate colleagues with a jaundiced eye!

PWS

10-21-17

THE HILL: N. Rappaport Believes That Expedited Removal Is the Key To Reducing The Immigration Court Backlog

http://thehill.com/opinion/immigration/356211-trumps-fast-tracked-deportations-may-be-only-practical-solution-to

Nolan writes:

“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.

But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.

Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.

This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.

. . . .

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.

Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.

If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.

Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.

Expedited removal proceedings are not used for unaccompanied alien children.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) exempts certain unaccompanied alien children (UAC) from expedited removal proceedings.

Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.

ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.

Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”

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

Read Nolan’s full article over on The Hill at the above link.

I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.

I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..

Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!

Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.

The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.

As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.

For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:

Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.

Here’s a link to the full Castro opinion and my previous blog on the decision:

http://wp.me/p8eeJm-IG

I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.

The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.

Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.

PWS

10-19-17

GONZO’S WORLD: DEHUMANIZING IMMIGRANTS BRINGS BACK DREDD SCOTT!

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/the_justice_department_s_radical_new_anti_abortion_stance_echoes_dred_scott.html

Mark Joseph Stern and Perry Grossman report for Slate:

“JURISPRUDENCE
THE LAW, LAWYERS, AND THE COURT.OCT. 19 2017 6:32 PM
Trump’s Dred Scott
In a case about the abortion rights of undocumented minors, the Department of Justice evokes the worst Supreme Court decision of all time.

By Perry Grossman and Mark Joseph Stern
Jeff Sessions and Roger B. Taney
Attorney General Jeff Sessions, left, and Chief Justice Roger B. Taney
Saul Loeb/Getty Images and Library of Congress

Throughout his presidential campaign, Donald Trump maligned undocumented immigrants as violent criminals and sexual predators who deserved to be rounded up and deported. Once in office, Trump transformed this rhetoric into policy, implementing a nationwide crackdown on immigrant communities. Now, the president’s dehumanizing disparagement of undocumented people has now seeped into his administration’s legal positions. This week, the Department of Justice is arguing in court that undocumented, unaccompanied minors have no right to abortions—and that undocumented immigrants may have no constitutional rights at all. This argument does not only contravene Supreme Court precedent. It also draws upon an inhuman notion of constitutional liberty most notoriously espoused in Dred Scott v. Sandford.

The Justice Department’s radical new theory arose out of a disturbing case in Texas that revolves around a 17-year-old referred to as Jane Doe in court filings. Doe arrived in the United States several months ago, unaccompanied by her parents and lacking documentation. She was placed in a federally funded Texas shelter, at which point she learned she was pregnant. Doe requested an abortion, but under state law, minors cannot receive the procedure without either parental consent or judicial approval. So Doe obtained what’s known as a judicial bypass and asked permission to attend a state-mandated counseling session before undergoing the procedure.

Her shelter refused to allow her to attend that counseling session, citing federal regulations promulgated by the Office of Refugee Resettlement, a wing of the Department of Health and Human Services. In March, ORR announced that federally funded shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director. A Trump appointee and longtime anti-abortion activist, Lloyd has refused to allow minors to access abortion services. Instead, he has directed shelters to take these women to “crisis pregnancy centers,” which “counsel” them not to get abortions. At least once, Lloyd himself called a pregnant minor to talk her out of terminating her pregnancy. If a minor still wants to get an abortion after navigating these obstacles, ORR instructs its shelters to block her from attending her appointment.

Doe’s shelter followed these guidelines, taking her to a crisis pregnancy center and calling her mother to tell her Doe was pregnant. But Doe persisted, and in October, her court-appointed attorneys filed suit along with the American Civil Liberties Union in a federal district court in Washington, where ORR is headquartered. Doe argues that ORR’s rules violate her constitutional rights by placing an undue burden on her access to abortion.

On Wednesday, U.S. District Judge Tanya Chutkan held a hearing in the case. While defending the government, Department of Justice attorney Scott Stewart strongly implied that undocumented women do not have a right to abortion. Here, Stewart was echoing an amicus brief filed by the Texas attorney general’s office, which proclaimed that “unlawfully present aliens” living in the United States have no constitutional right to abortion access. Chutkan then asked Stewart whether Doe has any constitutional rights; Stewart declined to make that “concession.”

Chutkan ruled against the government and issued a temporary restraining order guaranteeing Doe the ability to terminate her pregnancy. (She is currently 15 weeks pregnant, and abortion is illegal after 20 weeks in Texas.) The DOJ appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which will hear arguments in the case on Friday morning. In its motion, the agency argued that the government’s “interest in promoting fetal life and childbirth over abortion” justified its refusal to let a minor go to an abortion clinic. It also claimed that, even if undocumented minors have a constitutional right to abortion care, the administration was not unduly burdening that right, because minors who want to terminate their pregnancies can leave the country. This argument is merely another way of stating that women like Doe have no right to an abortion in the United States.

By excluding undocumented immigrants from the protections of Planned Parenthood v. Casey, the Trump administration is essentially asserting that they do not qualify as “person[s]” under the Due Process Clauses of the Fifth and 14th Amendments. The Supreme Court has ruled that the liberty component of the Due Process Clause protects a woman’s right to terminate her pregnancy without a substantial obstacle. If arbitrary regulations that severely burden clinics qualify as such an unconstitutional obstacle, as the Supreme Court has held, then surely self-deportation does as well. Thus, the sole plausible interpretation of the DOJ’s posture is that the Due Process Clause does not protect undocumented women like Doe. Put simply, undocumented women are not people for constitutional purposes.

If the government can force Doe to carry her pregnancy to term, what can’t it do?
This theory parallels the Supreme Court’s most infamous ruling. Dred Scott was a black man born into slavery who moved with his “master” from a slave state to a free state. Upon his master’s death, Scott sued for his freedom. In 1857, Chief Justice Roger B. Taney—a virulent racist whose statue was removed from the grounds of the Maryland State House in August—wrote an opinion dismissing Scott’s suit. Taney held that black people were not “persons” based on the language of the Constitution and that Scott, as a black man, therefore had no right to sue in the federal courts. Black men, Taney wrote, were “so far inferior” to whites that they had “no rights which the white man was bound to respect.”

Following the Civil War, Dred Scott was overturned by the 13th and 14th Amendments. These amendments ensured that everyone born in the United States would be a citizen. They also granted all “person[s]”—not just citizens—due process and equal protection under the law. Trump has already raised the specter of Dred Scott through his call to end birthright citizenship, the constitutional command that lay at the heart of the Civil War amendments. Now his administration is invoking the decision again in its attempt to deprive undocumented immigrants of their personhood under the Constitution.

The government has rarely alleged that undocumented immigrants may be deprived of rights protected by the liberty component of due process, what’s also known as “substantive” due process. Its few attempts have been unsuccessful. In 2003, the Bush administration argued that substantive due process does not apply to immigrants who reside in the country illegally. The 6th U.S. Circuit Court of Appeals, sitting en banc, emphatically rejected this claim, explaining

If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could not torture or summarily execute them. … [W]e do not believe that our Constitution could permit persons living in the United States—whether they can be admitted for permanent residence or not—to be subjected to any government action without limit.
Perhaps recognizing the extremism of its argument, the Trump administration has left open the possibility that undocumented immigrants are entitled to some unspecified “minimal standards” of constitutional protection. But if those minimal standards don’t include the basic right to bodily autonomy, then the 6th Circuit’s query still stands. If the government can force Doe to carry her pregnancy to term against her will, what can’t it do? The administration’s attempt to exert complete control over Doe’s reproductive system is a straightforward deprivation of constitutional liberty that opens the door to equally egregious future abuses.

On Friday morning, the Justice Department will return to court once more to argue, in effect, that Jane Doe is not a “person” worthy of due process protections. It might as well cite Dred Scott for the proposition that the government may strip undocumented immigrants of their constitutionally protected liberty. The 14th Amendment was designed to end such capricious discrimination against individuals living in the United States. But to the Trump administration, immigrants like Doe aren’t even people—just possessions of the state, awaiting deportation.”

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

Just when you think that Gonzo Apocalypto can’t sink any lower, he manages to achieve new depths!

Sen. Liz Warren was right!

PWS

10-19-17

THE ASYLUMIST, JASON DZUBOW ON GONZO’S “WAR ON ASYLUM APPLICANTS & DUE PROCESS” – “His maliciousness is exacerbated by his incompetence.”

http://www.asylumist.com/2017/10/17/the-attorney-generals-jaundiced-and-inaccurate-view-of-asylum/

Jason writes:

“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum

by JASON DZUBOW on OCTOBER 17, 2017

In a speech last week to the Executive Office for Immigration Review (the office that administers the nation’s immigration courts and the Board of Immigration Appeals), Attorney General and living Confederate Civil War monument, Jefferson Beauregard Sessions, set out his views on the asylum system, asylum seekers, and immigration attorneys.

Jeff Sessions speaks to an audience at the Executive Office for Immigration Review.

Sad to say, Mr. Sessions described the asylum system in largely negative terms, and said not a word about the benefits that our country derives from offering asylum.

While he views our asylum policy as “generous,” and designed to “protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality,” Mr. Sessions feels that our generosity is being “abused” and that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.”

Mr. Sessions also lambasts “dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”

Indeed, Mr. Sessions believes that our asylum system is “subject to rampant abuse and fraud.” Because the system is “overloaded with fake claims, it cannot deal effectively with just claims.”

First, it’s quite sad that our nation’s chief law enforcement officer would have such a jaundiced view of asylum. The idea that asylum is merely a generous benefit we offer to refugees, and that we receive nothing in return, is simply false. I’ve written about this point before, but it bears repeating. Asylum was created during the Cold War as a tool against the Soviet Union. We offered refuge to people fleeing Communism, and each person who defected to the West served as a testament to our system’s superiority over our adversary.

Now that the Cold War has ended, asylum still serves our strategic interests. It demonstrates our commitment to those who support and work for the values we believe in. It is tangible evidence that America stands with our friends. It gives our allies confidence that we will not let them down when times become tough. It shows that our foundational principles–free speech, religious liberty, equality, rule of law–are not empty words, but are ideals we actually stand behind.

And of course, there are the asylees themselves, who contribute to our country with their energy, enthusiasm, and patriotism, often born of their experience living in places that are not safe, and that are not free.

None of this came up during Mr. Sessions’s talk. Perhaps he does not know how our nation has benefited from the asylum system. Or maybe he doesn’t care. Or–what I suspect–he views asylum seekers as a threat to our security and a challenge to our country’s (Christian and Caucasian) culture.

The shame of it is that Mr. Sessions is demonstrably wrong on several points, and so possibly he reached his conclusions about asylum based on incorrect information.

The most obvious error is his claims that “dirty immigration lawyers… are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.” Aliens who are “unlawfully present” in the U.S. are not subject to the credible fear process. That process is generally reserved for aliens arriving at the border who ask for asylum. Such applicants undergo a credible fear interview, which is an initial evaluation of eligibility for asylum. While this may be a technical point, Mr. Sessions raised the issue in a talk to EOIR, and so his audience presumably understands how the system works. That Mr. Sessions would make such a basic mistake in a speech to people who know better, demonstrates his ignorance of the subject matter (or at least the ignorance of his speech writers), and casts doubt on his over-all understanding of the asylum system.

Mr. Sessions also says that our asylum system is “overloaded with fake claims.” But how does he know this? And what exactly is a fake claim? In recent years, something like 40 to 50% of asylum cases have been granted. Are all those adjudicators being fooled? And what about denied cases? Are they all worthy of denial? There is, of course, anecdotal evidence of fraud—and in his talk, Mr. Sessions cites a few examples of “dirty” attorneys and applicants. But a few anecdotes does not compel a conclusion that the entire system is “subject to rampant abuse and fraud.” I can point to anecdotes as well. I’ve seen cases granted that I suspected were false, but I’ve also seen cases denied that were pretty clearly grant-worthy. While I do think we need to remain vigilant for fraud, I have not seen evidence to support the type of wide-spread fraud referenced by the Attorney General.

Finally, Mr. Sessions opines that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” So court rulings undermine the intent of Congress? Any attorney who makes such a statement casts doubt on that lawyer’s competence and devotion to the rule of law, but when the Attorney General says it, we have real cause for concern. Thousands of federal court rulings—including from the U.S. Supreme Court—have interpreted our nation’s immigration laws (and all our other laws too). That is what courts do, and that is how the intent of Congress is interpreted and implemented in real-world situations. Attorneys who rely on court decisions are not “exploit[ing] loopholes in the law,” we are following the law.

These are all pretty basic points, and it strikes me that when it comes to asylum, Mr. Sessions doesn’t get it. He seems not to understand the role of Congress, the courts, and lawyers in the asylum process. And he certainly doesn’t understand the benefits our country receives from the asylum system.

I’ve often said that President Trump’s maliciousness is tempered by his incompetence. With Attorney General Sessions, it is the opposite: His maliciousness is exacerbated by his incompetence. And I fear that asylum seekers–and our country’s devotion to the rule of law–will suffer because of it.”

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

Yup, sure got this one pegged right, Jason! “Maliciousness and incompetence” seem to be two of the key requirements for political appointees in the Trump Administration. I’ve pointed out before that Sessions demonstrates little legal knowledge — his memos, which disingenuously claim to be “law not policy,” are in fact almost pure policy largely devoid of legal reasoning.

Gonzo obviously arrived at the DOJ with a briefcase full of homophobic, xenophobic, White Nationalist memos already “pre-drafted” for him by folks like Stephen Miller, Steve Bannon, the Heritage Foundation, the Family Research Council and restrictionist immigration groups. In addition to lack of legal knowledge and basic honesty (his explanation today to Senator Franken about how his “Russia lie” during confirmation didn’t pass the “straight face” test), Sessions shows no visible signs of compassion, humanity, understanding of other viewpoints, fairness, or objectivity. He consistently smears immigrants (and by extension the entire Hispanic community), denies their achievements and contributions to America, and, like any bully, picks on the already limited rights of the most vulnerable in our community, gays, children, women, and asylum seekers.

Sessions doesn’t understand asylum because he makes no attempt to understand it. He merely approaches it from a position of bias, fear, and loathing.

PWS

10-18-17

Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.

Related posts:

Matter of K-D-H-, unpublished (BIA 10-05-17)

Chairman/Chief Appellate Judge David Neal

Appellate Immigration Judge John Guendelsberger

Appellate Immigration Judge Molly Kendall Clark

OPINION BY: Judge Kendall Clark

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Paulina Vera

I was pleased to be invited to speak to the GW Immigration Clinic on Thursday, Nov. 2, 2017.

I am, of course, particularly proud of my good friend the amazing Paulina Vera, who is a distinguished alum of both the GW Immigration Clinic and the Arlington Immigration Court Legal Intern Program!

Here’s what I said:

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HERE THEY ARE!

INTRODUCING THE “TERRIFIC TRIO” – DEENA N. SHARUK, TANISHKA V. CRUZ, & RACHEL C. McFARLAND:

Deena N. Sharuk

Tanishka V. Cruz

Rachel C. McFarland

II. WHO IS A REFUGEE?

A. Refugee Definition

B. Standard of Proof

C. What Is Persecution?

D. Nexus

III. PARTICULAR SOCIAL GROUP

A. The Three Requirements

B. Success Stories

C. The Usual Losers

D. What Can Go Wrong?

E. A Few Practical Tips on PSG

IV. PRACTICAL TIPS FOR PRESENTING AN ASYLUM CASE IN IMMIGRATION COURT

V. CONCLUSION

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“The Attorney General’s Jaundiced–and Inaccurate–View of Asylum

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