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Transactional Records Access Clearinghouse
==========================================FOR IMMEDIATE RELEASEGreetings. Newly obtained case-by-case court records show that depending upon the community in which the immigrant resides, the odds of obtaining representation in Immigration Court deportation proceedings vary widely. If you happen to live in Honolulu, Hawaii, the odds are over 90 percent that you will be able to find an attorney to represent you. The odds are also high if you live in Manteca, California or in Pontiac. Michigan.
However these odds drop to less than 30 percent if you reside in Roma-Los Saenz or Huntsville, Texas, or in Coral Springs-Margate, Florida, or even in Atlanta-Decatur, Georgia.
Residents of Hawaii, New Hampshire, and Mississippi head the list of states where residents are most likely to obtain representation. West Virginia is in fourth place. Kansas, South Dakota, and Georgia had the worst composite records for their residents finding representation.
But even within these states the odds differ by location. The 25 communities that ranked the highest on the odds of finding an attorney were spread across seventeen states. Three states had communities that ranked both in the top 25 as well as in the bottom 25 places in the U.S.
Few dispute the importance of having an attorney to effectively argue one’s case. Representation can also lead to a number of efficiencies in the handling of court proceedings. Now for the very first time, the public can determine the odds of obtaining representation for individuals residing in each state, county, and local community within a county, who as of the end of May 2017 had pending cases before the Immigration Court.
These findings are based upon court records that were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. To see the full report, go to:
http://trac.syr.edu/immigration/reports/477/
To look up details on a particular community go to TRAC’s new interactive mapping application:
http://trac.syr.edu/phptools/immigration/addressrep/
In addition, many of TRAC’s free query tools – which track the court’s backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through June 2017. For an index to the full list of TRAC’s immigration tools go to:
http://trac.syr.edu/imm/tools/
If you want to be sure to receive notifications whenever updated data become available, sign up at:
http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm
or follow us on Twitter @tracreports or like us on Facebook:
http://facebook.com/tracreports
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
Category: Pro Bono Representation
THE GIBSON REPORT — August 14, 2017
Here are the “Headliners:”
“TOP UPDATES
ICE eService for OCC
On Monday, August 21, 2017, U.S. Immigration and Customs Enforcement (ICE) eService will become available in the ICE Office of the Principal Legal Advisor (OPLA) New York City Office of Chief Counsel (OCC) area of responsibility. See attached brochure, which describes what can be served electronically. To request access to ICE eService, please visit eserviceregistration.ice.gov.
Attorneys representing immigrant children and their families sued Attorney General Jeff Sessions, Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) today for using unsubstantiated claims of gang affiliation to illegally detain teenagers in jail-like facilities in California.
National Conference of State Legislatures Issues Report on Increase in State Immigration Legislation
Enacted legislation related to immigration increased in the first half of 2017 by 90 percent to 133 laws compared with 70 laws in 2016. The number of resolutions increased by 22 percent to 195 from 159. Lawmakers in 47 states enacted 133 laws and 195 resolutions related to immigration, for a total of 328. An additional nine bills were vetoed by governors and 18 are pending signatures. Trends 2017: Sanctuary policies, Refugees, Education/civics, Education/in-state tuition.
For-Profit Private Prison Operator Tells Investors that ICE Will Improve Company Earnings
“While in the past, ICE processing centers have been primarily utilized for individuals detained for multiple illegally border crossings, increasingly, ICE intends to utilize contract bed capacity for interior enforcement.”
ICE Investigating Families
Catholic Charities: It seems that ICE and HSI are getting contact information for families from minors at the border and are going on a fishing expedition to get evidence of immigration and criminal violations. The first wave is taking action against people with immigration violations–arresting and detaining household members with outstanding removal orders, issuing NTA (but also sometimes detaining) those who are undocumented. There will likely be a second wave of using smuggling inadmissibility charges to limit the relief that these immigrants can receive. The third wave will be criminally prosecuting people on federal charges of alien smuggling (which is a crime and carries 5 years of jail time). CLINIC and NYIC and others are tracking these encounters. You may want to report to them. This is what we are telling people contacted by HSI and ICE:
- Talking to them is completely voluntary. They have not issued a subpoena and you are not obligated to go to a meeting or answer your door. They may show up at your house; you do not have to let them in.
- You have a right to consult with a lawyer before you talk to them. You have a right to have a lawyer present during any conversations with them.
- 5th Amendment. If you talk to them, what you say can and will be used against you in a deportation case and a criminal case. They are looking for evidence to use against you.
4. Smuggling is a crime. (We usually walk then through the statute). It includes paying for but also just arranging and planning for someone to enter the U.S. It doesn’t matter why you did this or how sympathetic the story is. If you admit to this crime, you can be prosecuted and put in jail. It is also an immigration violation which can be used against you.”
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Interesting that even ICE is more advanced in electronic filing than the Immigration Courts!
PWS
08-14-17
POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!
http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564
“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.
The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.
. . . .
The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.
Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.
At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.
POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.
Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.
On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.
Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.
Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”
Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.
The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.
Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.
Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.
“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”
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Read Rogers’s much longer full article at the link.
It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”
Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.
Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.
And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?
Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.
As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”
Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.
But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.
Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.
Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.
PWS
08-14-17
4TH CIRCUIT SHRUGS OFF VIOLATION OF REFUGEE’S DUE PROCESS RIGHTS! — MEJIA V. SESSIONS
http://www.ca4.uscourts.gov/Opinions/Published/161280.P.pdf
All the quote your really need to understand how far into the sand the Article III Judges on this panel were willing to stick their heads to avoid upholding the Constitution:
“Calla Mejia warns that our interpretation of § 1252(b)(1) contravenes the REAL ID Act and effectively “abolish[es] review of all underlying orders in reinstatement,” thereby raising “‘serious constitutional problems’”—namely, Suspension Clause concerns.12 Pet’r’s Opp’n to Resp’t’s Mot. to Dismiss, at 12, 17 (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)). Not so. Rather, we think it more than feasible that an individual removed to her home country could illegally re-enter the United States, have the original removal order reinstated by DHS, and petition for review—all within a month’s time.”
Ah, according to the judges who joined the majority here, the respondent’s mistake was that she waited several months before reentering the U.S. illegally, instead of reentering illegally within 30 days. Of course, the trauma caused by her having been raped by her husband upon return, after being improperly duressed by a U.S. Immigration Judge in a detention facility (who seriously misrepresented the law) into abandoning what should have been a “slam dunk” asylum grant under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), might have had something to do with it. But, if you’re a life-tenured judge in the “ivory tower” who cares? And, of course, unrepresented aliens subject to reinstated orders in detention centers would have little trouble filing a petition for review in a U.S. Court of Appeals. Com’ On, Man!
But, wait a minute! Judge Traxler, in his separate opinion, had an even better idea: let’s find no jurisdiction over everything so we can completely wash our hands of what we’re doing to this undisputed “refugee.”
Well, the good news here is that the Respondent did end up with a basically uncontested grant of mandatory withholding of removal to Peru, so her life is saved. That’s because, unlike the four other U.S. Judges who heard her case, the second Immigration Judge to hear the case, in Maryland, was actually interested in making the law work to grant protection. Lucky for the respondent she wasn’t sent to Charlotte, Atlanta, or Stewart!
But, as a result of the due process violations by the first Immigration Judge who heard (but didn’t take the time to understand) the case (probably one of those who can “really crank out the removal orders” for unrepresented individuals at detention centers) and the unwillingness of the Fourth Circuit Panel that reviewed this case to uphold the Constitution, this respondent will be condemned to “limbo” in the U.S., unable to qualify for the green card or the eventual chance to become a U.S. citizen that she otherwise should have had.
Read the full decision and understand my point that some, or perhaps the majority, of Article III Judges who are the only hope for due process for many refugees and others entitled to remain in the U.S. will be happy to sign on as “station masters” on the “Trump-Sessions Deportation Express.” It’s the easiest path to take.
PANEL: CIRCUIT JUDGES TRAXLER, DIAZ, and FLOYD
OPINION BY: JUDGE DIAZ
CONCURRING AND DISSENTING OPINION: JUDGE TRAXLER
PWS
08-11-17
DEPORTATIONS RISE UNDER TRUMP, BUT BORDER CROSSINGS ALSO CONTINUE TO TICK UPWARDS! — Read My OpEssay: “Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?”
Maria Sacchetti reports in the Washington Post:
“Federal immigration courts ordered 57,069 people to leave the United States in the first six months of the Trump administration, up nearly 31 percent over the same period last year, the Justice Department announced Tuesday.
Additionally, 16,058 people prevailed in their immigration cases, or had them closed, allowing them to stay in the United States, according to the data, which tallied orders issued from Feb. 1 to July 31. That total marked a 20.7 percent drop from the 20,255 immigrants who prevailed at the same time last year.
In a news release, the Justice Department said the notoriously backlogged court system is making a return to the “rule of law” under President Trump, who has vowed to speed deportations. But officials did not say how many of the orders were issued in absentia, meaning to immigrants who did not attend their hearings and therefore could not immediately be deported.
The Washington Post reported last week that thousands of immigrants, some seeking protection from violence in their homelands, have missed their court dates in recent years, often because they did not know about them or were afraid to show up. Advocates for immigrants have also raised concern about the lack of legal aid for immigrants, especially for those in immigration jails.
Last month, the president of the National Association of Immigration Judges said courts are severely understaffed, with about 300 immigration judges juggling a quickly rising caseload. An estimated 600,000 cases are pending nationwide.
Unlike the traditional federal court system, which is independent of the executive branch of government, immigration courts are administered by the Justice Department.
That agency said that from Feb. 1 to July 31, judges issued 73,127 final immigration decisions, an increase of 14.5 percent over the same period in 2016.
Of those decisions, 49,983 were deportation orders, an increase of nearly 28 percent from the same period in 2016. The rest were orders to leave the United States voluntarily, a process by which immigrants generally face fewer barriers if they wish to apply to return to the United States in the future.
Federal officials attributed the increase in case completions to Trump’s Jan. 25 executive order dispatching more than 100 immigration judges to immigration jails across the country. More than 90 percent of cases heard in jails have led to orders to leave the United States. The department has also hired 54 new judges to work in immigration courts since Trump took office. More are being hired every month.
Dana Leigh Marks, an immigration judge based in San Francisco who heads the national association, wrote in Newsday last month that immigration courts should be separated from the Justice Department to ensure “judicial independence and protection from political influences.”
“More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks,” she wrote. “For example, cases would not be docketed to make political statements or serve as a show of force by the U.S. government.”
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Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?
by Paul Wickham Schmidt
U.S. Immigration Judge (Retired)
Meanwhile, according to CQ Roll Call, arrests of undocumented individuals at the Southern Border rose 13.1% in July, the second consecutive monthly increase. Overall, DHS’s CBP reports arresting more family units and fewer unaccompanied children during the first 10 months of FY 2017.
While CBP “fobs off” the increases as “seasonal,” they do cast some doubt on whether the Trump Administration’s “send ’em all back asap” enforcement approach is really going to decrease undocumented migration in the long run. It might simply be a case of professional human smuggling operations revising their methods and raising their prices to adjust to higher risk factors and the “market” taking time to adjust to the changing practices and price increases. Moreover, to date, neither increases in removal orders, some as noted by Horwitz undoubtedly “in absentia orders” issued without full due process protections, nor increases in the number of U.S. Immigration Judges has stopped the growth of the backlog of cases before the U.S. Immigration Courts, currently estimated at more than 610,000 pending cases!
Apparently, under the Trump/Sessions regime success in the U.S. Immigration Court System is no longer measured by improvements in due process and fairness or by insuring that the individuals coming before the court get the protections and relief to which they are entitled under the law. Nope! The “rule of law” in Immigration Court now appears synonymous with turning that Court System into a “deportation mill” — just another whistle stop on the “deportation express.”
In other words, we’ve now come “full circle” since 1983. Then, EOIR was created to get the Immigration Courts out of INS to enhance due process and overcome a public perception that the courts were merely functioning as adjuncts of INS enforcement. The U.S. Immigration Courts and EOIR essentially have been “recaptured” by DHS enforcement.
EOIR has once again become an insulated “inbred” agency. Judicial appointments are made by DOJ politicos almost exclusively from the ranks of government attorneys, primarily DHS and DOJ prosecutors, just like when the “Legacy INS” ran the courts. Dockets are out of control, management is haphazard, technology is outdated and inadequate, and clerical staffing shortages are chronic. Staffing and docketing priorities are designed to accommodate enforcement priorities and to maximize removals, rather than to promote due process and fairness. Training and attention to the real “rule of law” are afterthoughts. Public service is a dirty word.
Morale among those at EOIR who care about the due process judicial mission has been steadily declining even as already sky-high stress levels continue to ratchet up. Numbers and removals have replaced fairness, professionalism, and unbiased decision making as objectives.
There are rumors that the Immigration Courts are going to be taken out of the DOJ and “reintegrated” into DHS to reflect their “true function” as part of the deportation mechanism. I think it’s unlikely unless Sessions becomes the new Secretary of DHS. But, really, what difference would it make? Sessions basically “reassumed” the immigration enforcement functions that once were in the Attorney General’s portfolio but were sent over to DHS when it was created after 9-11. Kelly merely signed off and nodded agreement to what Sessions told him to do.
A move by the DOJ apparently is afoot to revamp the judicial “evaluation system” to rate Immigration Judges more like “lower level DOJ attorneys” rather than judicial officials exercising independent judgment. Such bureaucratic ratings systems often elevate “productivity” above quality, value “following agency priorities” over exercising independent judgment, and serve to give the politicos at the DOJ more control and leverage over the day to day functioning of what is supposed to be a judiciary free from political influence or intimidation. Moreover, such ratings are often prepared by “supervisory judges” many of whom hear no cases and most of whom have little daily contact with the Immigration Judges they nominally “supervise.” In a well-functioning judicial system, the local “Chief Judge” is a leader and problem solver, not a “supervisor” of her or his peers.
At this point, the Trump Administration clearly has no interest in fixing the festering problems in the U.S. Immigration Courts; they are determined to make things worse. While there is some bipartisan support in Congress for an independent Article I U.S. Immigration Court, to date it hasn’t coalesced into any specific, politically viable legislation.
That basically leaves it to the Article III Federal Courts to decide whether or not to fix the Immigration Courts. One possibility is that they will decide that it is too much: just forget due process for foreign nationals, rubber stamp the removal orders, stay above the fray, and become another “whistle stop on the deportation express.”
A more optimistic possibility is that they will draw the line on the due process nightmare in the U.S. Immigration Courts being promoted by the Administration. But, that will make the Article III Courts a major “track block” on the deportation express. The trains will derail and pile up on the doorstep, and the Article III Courts can count on little if any help or resources from Congress in untangling the mess and getting things back on track. Understandably, from a practical if not a legal point of view, some Article III Judges aren’t going to want to go there.
One thing is certain — things can’t continue they way they are going now. Something has got to give! And, when it does, the Article III Courts will be forced to do some self-examination and decide whether they are going to be part of the problem, or part of the solution. Are life-tenured Article III judgeships in essence about securing life sinecures, or about taking a perhaps unpopular and labor intensive stand for Constitutional Due Process for all, even the weakest and most vulnerable among us? We’ll soon find out!
PWS
08-09-17
THE “GIBSON REPORT” FOR AUGUST 7, 2017
As usual, lots of “good stuff” in Elizabeth’s Report. Here are the “Top Stories:”
“TOP UPDATES
NYIFUP Accepting New Cases Again
BDS: As most of you know, the New York Immigrant Family Unity Project (NYIFUP) has not been in intake recently. We are pleased to let you know that the NYIFUP providers will be back accepting new cases at the Varick Street Court as of August 14th for clients who are detained, unrepresented, and financially eligible. We will not be imposing a bar to our services based on criminal history. Because we intake unrepresented clients directly at the court, there is no need to refer us cases, although you are welcome to let the providers know about someone who will be coming through intake ahead of time. At this time, the providers are still determining our capacity to accept cases whose first appearance was during the time that we were out of intake. If you have specific questions about NYIFUP or an individual case, you can reach out to me, to Sarah Gillman at the Legal Aid Society (stgillman@legal-aid.org), or to Sarah Deri Oshiro at the Bronx Defenders (sarahdo@bronxdefenders.org). Thank all of you for your strong support of NYIFUP this year. NYT Coverage.
Increased number of RFEs for pending I-360 SIJS petitions and notices of intent to revoke approved I-360 SIJS petitions
USCIS has been issuing an increased number of RFEs for pending I-360 SIJS petitions and notices of intent to revoke approved I-360 SIJS petitions. USCIS is primarily issuing RFEs to SIJS applicants that were 18 years old or older at the time the guardianship order was issued. However, they are also issuing RFEs to SIJS applicants that obtained a custody order.
EOIR Memo on continuances: Issued July 31, 2017, it directs IJs to take a less liberal stance with regards to continuances, taking into account the complexity of the case, etc. Respondents will be granted at least one continuance to obtain counsel, but it may be harder to receive additional adjournments if they cannot show diligence in seeking counsel.
- 1720: RAISE Act
While it is unlikely that this bill will ever become a law, it has gained a lot of press since Trump announced his support for it. The law would have a significant impact on family-based immigration and also would affect employment-based and refugee programs. In short, it would, cut family-based immigration in half over the next decade (eliminating the categories of adult parents of U.S. citizens, adult siblings of U.S. citizens, unmarried or married adult children of U.S. citizens, and unmarried adult children of LPRs), end the diversity visa lottery, and cap refugee admissions at 50,000. For elderly parents there would be a renewable nonimmigrant visa granted on the condition that parents will not work, access public benefits, and must be guaranteed support and health insurance by their sponsoring children. MPI analysis.
DOJ Announces Anti-Sanctuary City Language Required for Participation in Public Safety Partnership Program
The Department of Justice announced that, in order to participate in the Public Safety Partnership (PSP) program, local jurisdictions must answer questions that “show a commitment to reducing crime stemming from illegal immigration.” Twelve locations were initially selected for the program. AILA Doc. No. 17080333
Data Shows Prosecutorial Discretion Grinds to a Halt in Immigration Courts
The Department of Justice (DOJ) announced last month that it now has hired 326 immigration judges, 53 more judges than July 2016, yet during that time the immigration court backlog has grown. According to new data released by the Transactional Records Access Clearinghouse (TRAC) the reason for this may be due to the fact that the Trump administration has nearly ended the use of prosecutorial discretion to close cases, forcing judges to place them all on their dockets.
Advocates File Amicus Brief with BIA on the Modified Categorical Approach and CIMTs
Responding to an amicus invitation, AILA, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild filed a brief taking the position that the BIA should not depart from the categorical approach when analyzing reprehensibility element of the CIMT analysis. AILA Doc. No. 17080403
Civil Rights Groups Sue State Department – demand processing of Diversity Visa Winners
Civil rights groups filed a federal lawsuit challenging the State Department’s refusal to process visa applications for winners of the U.S. Diversity Visa Program lottery who hail from the six countries covered by President Trump’s Muslim ban. P.K. v. Tillerson, was filed in the U.S. District Court in Washington, D.C.
Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered
According to more recent CBP data obtained by the American Immigration Council, the agency has made little progress in its efforts to improve accountability. This data, obtained through a Freedom of Information Act (FOIA) request, includes 2,178 cases of alleged misconduct by Border Patrol agents and supervisors that were filed between January 2012 and October 2015.”
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Go the the full report at the link for more.
PWS
08-07-17
ATTN NEW DUE PROCESS ARMY: Apply for an Equal Justice Works Fellowship, Host Organization: University of Maryland SAFE Center for Human Trafficking Survivors Deadline: Wednesday, August 9, 2017!
The University of Maryland Support, Advocacy, Freedom, and Empowerment (SAFE) Center for Human Trafficking Survivors is seeking a candidate to apply for a SAFE Center-hosted Equal Justice Works Fellowship. Third-year law students, recent law school graduates, and experienced attorneys with a demonstrated commitment to public interest law are eligible to apply. About the University of Maryland SAFE Center (Host Organization) The University of Maryland SAFE Center is a direct services, research, and advocacy center on human trafficking. Through in-house service provision and collaboration with partners, the Center provides comprehensive social, legal, mental health, medical, and economic empowerment services to sex and labor trafficking survivors regardless of nationality, age, or gender. The SAFE Center is located in College Park, Maryland. Learn more on our website: www.umdsafecenter.org. About the Equal Justice Works (EJW) Fellowship Program The Equal Justice Works Fellowship program funds public interest attorneys for two years at a host organization in an effort to close the justice gap on pressing social issues. The host organization provides training, support, supervision, and health insurance and other standard employee benefits. The Application Process Candidates who are interested in applying for an EJW Fellowship to work at the SAFE Center must apply to the SAFE Center by August 9, 2017. The SAFE Center will choose a candidate with whom to apply for an EJW fellowship. The candidate and the SAFE Center will work together to develop the project listed below, and will collaborate on the EJW application. The candidate will submit that application to EJW by September 27, 2017. If the application is successful, the EJW Fellow will begin work on the project at the SAFE Center in September 2018. For more information on the EJW application process, please see http://www.equaljusticeworks.org/post-grad/equal-justice-works-fellowships/apply. Proposed Project Outreach and Legal Services for Forced Labor Victims: This project focuses on survivors of labor trafficking in Maryland and the metropolitan Washington DC area. Labor trafficking is a form of modern-day slavery that involves forcing, coercing, or defrauding a person into involuntary servitude in restaurants, factories, farms, hotels, beauty salons, private homes as domestic workers, family-run businesses, and other industries. Victims are typically forced to work extremely long hours under inhumane conditions, with few or no days off, for little or no money. They are controlled by threats, violence, fake debts, isolation, and other methods. Labor trafficking is occurring in Maryland and the metropolitan DC area but it is largely under-identified, underreported and under-prosecuted. This project will involve direct legal immigration services, outreach, and advocacy on labor trafficking. The EJW Fellow will represent labor trafficking victims in applying for T visas and other forms of immigration relief. The EJW Fellow will create Know Your Rights materials and conduct presentations for relevant community organizations and agencies in the metropolitan DC area in order to increase identification of labor trafficking victims. The EJW Fellow will also identify legislative and policy gaps on labor trafficking in the DC metropolitan area and assist in proposing solutions. Candidate Qualifications: Demonstrated commitment to public interest law. Demonstrated interest in human trafficking, immigration, civil rights, labor rights, women’s rights, or other social issues. Excellent research, writing, and oral communication skills. Highly self-motivated, well organized, detail-oriented, and flexible. Ability to work well with culturally diverse populations. Have a strong work ethic and a positive attitude. Agree to sit for the Bar Exam the summer after graduating law school. Foreign language ability preferred but not required. To apply, please send a resume, cover letter, 5-10 page writing sample, and a copy of your academic transcript (unofficial) to safecenter@umd.edu by Wednesday, August 9, 2017.
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GO FOR IT!
Thanks to Professor Alberto Benitez of GW Law for sending this my way.
PWS
08-04-17
FROM THE “CHASE ARCHIVES:” 24 Years Ago, Jeffrey Chase Stood Up For The Rights Of Asylum Seekers, Due Process, And American Values — H.R. 391 Is A Mindless Recycling Of The Same Horrible Ideas That Chase Opposed Then — Have We Learned Nothing In The Interim?
https://www.jeffreyschase.com/blog/2017/8/3/from-the-archives-my-wall-st-journal-op-ed-sept-9-1993
Jeffrey wrote;
“Last week, the House marked-up H.R. 391, the “Asylum Reform and Border Protection Act of 2017.” The bill would create significant obstacles for asylum seekers, and increase the risk to unaccompanied children fleeing harm. Provisions of the bill caused me to think of an op-ed I had written 24 years ago, which was published in The Wall Street Journal. A different bill, a different President, but many of the same arguments apply. So many years later, I still become emotional when I remember, as we stepped out of the airport terminal, the little girl excitedly crying out in Farsi: “Maman, azad shodim, azad shodim!” (“Mommy, we’re free, we’re free!)
‘Mommy, We’re Free!’ — In Defense of Asylum Rights
By Jeffrey S. Chase
Five years ago I met Goli (not her real name), a three-year-old Iranian girl detained by the Immigration and Naturalization Service. Goli’s parents were political opponents of the Ayatollah Khomeini’s government. Her father was missing in Iran, either killed or imprisoned. Goli and her mother were forced to seek refuge in, of all places, Iraq. They had spent the last two years in a camp there. Goli was small for her age and sickly; she needed surgery unavailable to her in Iraq. She had never had a real home, or even her own doll.
When Iraq’s war with Iran ended, Goli and her mother were expelled by Saddam Hussein. They could not return to Iran, where the war’s end was celebrated with the arrests of hundreds of members of the mother’s opposition party. With little money and nowhere else to go, the mother paid a smuggler to get her and her child to the U.S. with a false passport. There, they would apply for asylum. A relative of her husband’s, a physician living in Michigan, would help them settle and arrange for Goli’s much needed medical care.
Goli and her mother were detained on arrival at Kennedy Airport by the INS. They were immediately scheduled for a hearing before an immigration judge; I was their attorney. When we met, Goli had a high fever. A doctor had prescribed antibiotics, but the security guards had not found time to purchase them. A week later, when she had taken the antibiotics that I insisted be provided, she felt better, and a friendlier captor played with the girl, using her handcuffs as a makeshift toy.
Thanks to the rights afforded by our current asylum laws, Goli and her mother were released after a few weeks to live with their relatives in Michigan. When her mother carried Goli outdoors for the first time, she cried, “Mommy, we’re free!”
Representing asylum seekers entails much work and aggravation with little or no pay. The reward is a happy ending. I have known nearly 100 others like Goli and her mother who have found refuge here in the U.S., away from the terror and chaos reigning in their home countries. But recently, President Clinton announced legislation, sponsored by Sen. Edward Kennedy (D., Mass.), that would end such happy endings. Reacting to a “crisis” that doesn’t exist, he has decided to show his political toughness by going after the world’s most vulnerable group, refugees.
Under the president’s bill, asylum seekers arriving here without proper documents will have no right to a lawyer, or a hearing, or an appeal. The bill ignores the fact that many refugees are forced to escape their homelands without valid papers because there is no time to obtain them or because applying for and carrying the proper documents is too dangerous.
There are other troubling provisions. According to the new bill, if refugees escaping certain death at home try fleeing to the U.S. aboard a plane that stops in Germany, for example, they would immediately be deported to Germany–even if they never stepped off the plane there. This provision is similar to one in many Western European nations, whereby refugees are expected to apply for asylum in the first “safe” country they reach. But sending refugees back to a country where they were “last present” is no guarantee that they will not be deported to their nation of origin.
As an immigration attorney, I’ve heard hundreds of asylum claims: in my office and in detention centers, in courts and airport terminals. Asylum seekers are not terrorists; they are people like Goli and her mother. Nor are they statistics; they are flesh and blood. This phrase takes on added meaning when the flesh is marked with bullet wounds, cigarette burns and other remnants of torture.
I can still see the Afghan teenager, much of whose face was blown off by a Soviet land mine. I still hear the Muslim man from Bosnia, who wept as he told me how Serbian troops stopped the United Nations bus he rode. He was spared only when the would-be executioners discovered that the bus was leaving the country, thus assisting them in their “ethnic cleansing.” After finally escaping Bosnia, he stopped briefly in another country en route to the U.S. The Clinton legislation would deport him, and similarly the Liberian boy I met who told me how he survived a massacre by a rival clan by lying still among the corpses until the attackers left.
Even some who are sympathetic to such cases may feel that the U.S. cannot accept all of the world’s refugees. We don’t. There are 17 million refugees in the world. Of the 300 million aliens the INS inspected last year at ports of entry, only 15,000 applied for asylum. This means that 0.005% of the people who sought admission to the U.S. were asylum applicants. Ironically, such exemplars of human rights as Iran and Pakistan accept far more. Contrary to media reports, we have not “lost control of our borders” to “teeming hordes” of asylum seekers. While some individuals abuse the system, their number is too small to justify all the ills assigned to them by nativist organizations.
Under the proposed legislation, if refugees somehow managed to reach the U.S. directly, they would have to present their cases on the spot at the airport to a junior level INS official. The asylum seeker would have no right to compile evidence supporting their requests for asylum, call witnesses, or even consult a lawyer. If this legislation becomes law, a person fighting a parking ticket would have more rights in our country than a Muslim fleeing certain death in Bosnia.
The answer to the asylum question is not to turn away genuine refugees. Administrative improvements to preserve legal protections for refugees are urgently needed. More asylum officers and faster and fairer processing of asylum cases would eliminate any instances of abuse. They would also make possible more happy endings for the world’s future Golis.
HON. JEFFREY CHASE RESPONDS TO CHIEF JUDGE KELLER’S OPPM: Continuances Promote Due Process — U.S. Immigration Judges Should Be Free To Exercise Discretion — Memo Fails To Recognize Dire Straits Of NGOs And Asylum Seekers Largely Caused By DOJ & EOIR’s Own Policies!
https://www.jeffreyschase.com/blog/2017/8/3/in-support-of-continuances
Jeffrey writes:
“The chief judge’s memo correctly states that “at least one continuance should be granted” in order to allow a respondent to obtain counsel. However, the memo raises concerns about granting additional adjournments, “particularly when all respondents are initially provided a list of pro bono legal services…” However, the memo fails to mention the strain the same backlog has put on the limited resources of the listed pro bono representatives. Therefore, denying additional continuances will require more applicants to proceed without counsel. At present, many cases pending before the courts involve asylum seekers (including minors) fleeing gang violence in Central America and Mexico. Many of these claims are based on the claimants’ membership in a particular social group, a still-evolving area of the law. BIA precedent requires an asylum applicant to “delineate and establish to the Immigration Judge any particular social group he claims.” See Matter of A-T-, 25 I&N Dec. 4, 10 (BIA 2009). “Particular social group” is a term of art that a pro se applicant would not understand. Furthermore, a knowledge of existing case law is essential in crafting a proposed social group to present to the immigration judge. In other words, the denial of additional continuances to allow an asylum applicant to obtain representation in order to move a case along can be fatal to an individual’s chances for obtaining relief, and can further undermine the applicant’s chance of success on appeal.
Hopefully, judges will continue to consider all of the above in their application of the Chief Judge’s memo.”
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Read Jeffrey’s complete commentary at the link.
I agree entirely with Jeffrey that continuances play a critical role in maintaining due process. I also agree that memos such as this OPPM show a total misunderstanding and lack of appreciation for the situation of NGOs — who are basically keeping the system afloat — and the due process need for counsel in asylum cases. See my comments from yesterday on the OPPM:
Contrary to the Chief Judge’s tone, problems caused by DOJ and EOIR management have basically tied the individual Immigration Judges’ hands in granting continuances. Let’s face it, after DOJ and EOIR arbitrarily “orbit” ready for trial non-detained cases for their own political goals, individual Immigration Judges lose both credibility and effective control of their dockets. How can a judge in good conscience deny most motions to continue when cases are intentionally left pending for years: attorneys change, the law changes, country conditions change, witnesses change or become unavailable, and other forms of relief pop up.
Moreover, as pointed out by Jeffrey, rather than simplifying the system so that protection could be quickly granted in more straightforward cases, the BIA has intentionally made the process more complicated — to the extent that it is virtually impossible to imagine that any unrepresented asylum applicant could document a PSG case to the BIA’s hyper-technical specifications.
And, Congress also shares responsibility for the current untenable situation. During several relatively recent “contrived” Government shutdowns, the Immigration Court’s entire non-detained docket and the the vast majority of Immigration Judges who staffed them were determined to be “nonessential” and therefore “furloughed,” leaving active dockets “to rot.” Non-detained cases were cancelled en masse and the court system never really recovered. For all I know, some of those cases are still “off docket.”
Also, these actions sent a strong message that the politicos in both the Legislative and Executive branches neither respected the work of U.S. Immigration Judges nor considered it important. The “non-detained docket” basically became the “who cares docket.”
The Obama Administration then further aggravated the problem by unwisely (and without consulting “line” U.S. Immigration Judges) prioritizing new “Not Quite Ready For Prime Time” Southern Border cases over regularly scheduled non-detained cases, thus sending the non-detained docket further into complete chaos: “Aimless Docket Reshuffling.” Now, the Trump Administration’s “gonzo, anything goes, show no judgement, exercise no prosecutorial discretion” regime is pushing the courts over the brink.
We need bipartisan legislation to get the U.S. Immigration Courts out of the DOJ and into an independent judicial structure where they can focus on providing high quality due process in an efficient, predictable, and systematic manner.
PWS
08-03-17
EOIR ISSUES “OPPM” ON CONTINUANCES — APPARENT ATTEMPT TO SHIFT FOCUS AWAY FROM POLITICALLY MOTIVATED “ADR” THAT IS CAUSING MASSIVE BACKLOGS!
Here is the text of the OPPM:
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My Comments:
- There are lots areas where U.S. Immigration Judges, particularly new ones, could use training. Applying the asylum standards of proof set forth in Cardoza-Fonseca and Mogharrabi, properly applying the presumption based on past persecution in 8 CFR 1208.13, adjudicating “other serious harm” claims, insuring that requests for corroboration are “reasonable,” making credibility determinations on the basis of the record as a whole and all relevant factors, and understanding and properly applying the complex concepts of “divisibility,” categorical approach,” and “modified categorical approach” in criminal-related cases immediately come to mind. Adjudicating motions to continue doesn’t jump out at me as an area where guidance is particularly necessary. In fact, I never really met an Immigration Judge who didn’t have a pretty good sense of what the criteria were for continuances.
- The OPPM blows by the real reason why the dockets are a mess: politically motivated “Aimless Docket Reshuffling” (“ADR”) caused by ever changing political priorities in Immigration Court. Shifting Immigration Judges from previously-scheduled “Merits Hearings” to “Master Calendars” for recently arrived aliens, detainees who needn’t be in detention, and juveniles, has resulted in perhaps hundreds of thousands of “ready for trial” cases being “orbited” to largely imaginary merits hearing dates years from now.
- The OPPM falsely suggests that Immigration Judges have control over their dockets. But, individual Immigration Judges were stripped of any real semblance of docket control years ago. That’s the major problem causing backlogs. It’s not uncommon for Immigration Judges to find themselves detailed to other courts or shifted to other priorities without any meaningful input and sometimes with minimal advance notice. Ask the many private attorneys in New York, Chicago, and other major locations who arrive at long-ago-scheduled merits hearing, witnesses in tow, only to find out the Immigration Judge has been “reassigned” without advance notice, and that their cases are likely to go back to Master Calendar again for assignment of yet another Merits Hearing date with another judge years in the future. And, given the documented inconsistencies in adjudication results, particularly in asylum cases, among U.S. Immigration Judges, don’t think that re-assignment to a “new” Immigration Judge is a “neutral” occurrence. In all too many cases, it’s “outcome determinative.”
- The OPPM falsely suggests that continuances are largely a “scheme” by private attorneys to “game the system.” Undoubtedly, respondents sometimes do benefit by delays — many of which are actually caused not by them but by the internal procedures of EOIR and DOJ. They just take advantage of that which the system at the administrative/political level of DOJ/EOIR offers them. But, there are probably just as many private attorneys who have been trying for years to get their clients’ cases to trial, only to be “stiffed” by the politicos ultimately in charge of the system. Individual Immigration Judges are more often than not merely the “bearers of bad news” over which they have no personal control (but do get some of the flack).
- The OPPM appears to be directed at overburdened, overworked, under-appreciated NGOs who have been “hosed around” by the politicos at DOJ and EOIR Headquarters. They have been forced to race to cover “new priority” cases at the border, in detention, or on accelerated dockets while back at the “home court” their non-detained “ready for trial” cases are being “orbited” to dockets years in the future. Moreover, it is well-known the there is a high rate of turnover among NGO and pro bono group attorneys. Therefore the DOJ/EOIR tactics are designed to “wear down” pro bono representatives, thus forcing individuals to abandon representation or go unrepresented. This, in turn, all but guarantees failure of their claims. Indeed, the recent NWIRP litigation has made it clear that DOJ and EOIR are willing to bend the existing regulations to threaten or penalize those trying to provide pro bono assistance. http://immigrationcourtside.com/2017/07/29/eoir-pro-bono-representation-u-s-district-judge-richard-m-jones-rips-eoirs-violation-of-1st-amendment-common-sense-nwirp-v-sessions-wd-wa/.
- The OPPM also falsely suggests that DHS only rarely asks for continuances. Not true! DHS has a steady stream of reasons for requesting continuances including such “administratively fixable” things as: lost or missing files, sick attorneys, shortage of staff, missing fingerprints, changing priorities, ongoing investigations, new charges of removability, training, details, need to review exhibits lost in the mail, etc. Moreover, as recently documented by TRAC, the Trump Administration’s abandonment of a sensible use of “prosecutorial discretion” to get low priority cases off the Immigration Court docket is compounding the backlog issue. Additionally, the reported DHS unwillingness to stipulate to issues and grants of relief has caused many cases that could have been completed at Master Calendar or on “short docket” to be set for 3-4 hour merits hearing blocks instead.
- Oh, and lets not forget that docket problems are also aggravated by the byzantine, glacial, yet one-sided hiring process for Immigration Judges developed and administered by DOJ largely in response to political abuse of the hiring system by the Bush-era DOJ. Additionally, DOJ & EOIR have failed to anticipate problems caused by predictable loss of experienced judges to retirement, and they have failed to fill the additional positions allocated by Congress in a timely fashion.
- NOTE TO REPORTERS IN THE AUDIENCE: Don’t be fooled or “taken in” by this smokescreen. Faced with exposure of chronic problems, it’s a “bureaucratic norm” within DOJ and EOIR, as well as a specialty of the Trump Administration, to attempt to shift attention and blame elsewhere. Don’t fall for it! The “real story” here is in the absolute mess that political meddling at the DOJ has made, and continues to make, out of sound docket management and due process in the U.S. Immigration Courts and the unwillingness and inability of the politicos to fix the problems they have created or aggravated. No OPPM or series of “administrative band aids” is going to fix this broken system. We need an Article I U.S. Immigration Court now!
- Other than that, I loved the OPPM.
PWS
08-02-17
The Gibson Report for July 31, 2017
“BASIC ASYLUM TRAINING FOR LITIGATORS” — Read My July 25, 2017 Pro Bono Training Presentation For Jones Day!
Click on this link for a “Printable Copy”:
Here’s the “complete text:”
BASIC ASYLUM LAW FOR LITIGATORS
OUTLINE
I. INTRODUCTION
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 PRESENTNG AN ASYLUM CASE IN IMMIGRATION COURT
V. CONCLUSION
- 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 appreciate the outstanding leadership and amazing commitment of your managing partner Steve Brogan, your Global Pro Bono Coordinator Laura Tuell, and folks like Mary Hale and many others who have been making this happen on a daily basis. It’s what I call “due process in action.” I know that Steve feels very deeply about the overwhelming need for everyone to get a day in court. He has written very forcefully and eloquently on it in the past and has certainly helped to raise the profile of the representation crisis facing our Immigration Courts.
Jones Day isn’t just “talking the talk.” Although it’s now been 25 years since the end of my time as a partner in Jones Day’s Washington Office, I am well aware of the tremendous time and financial commitment that your partnership is making to saving and preserving our justice system and in many cases to saving the very lives of the folks who depend on it. For, as Steve and others at the firm 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.
I also congratulate and appreciate your willingness to undertake representation in all types of cases, rather than “cherry picking” likely winners as is always a temptation. As a judge, I found that cases that look like “sure losers” at the Master Calendar sometimes turn into “winners” when a knowledgeable and dedicated attorney enters the picture.
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,” 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 a detained migrant 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 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 often do not qualify individuals for refugee status. However, some of these circumstances 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 of the Seventh Circuit Court of Appeals in a 2011 case Stanojkova v. Holder, 645 F.3d 943, 947-48 (7th Cir. 2011). Judge Posner gave three examples.
“The three forms are discrimination, harassment, and persecution. The first 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 Fifth Circuit has not directly addressed the issue. So, I believe that C-T-L- would apply in the Immigration Courts in the Fifth 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 (5th Cir. 2015). Consequently, you will have to deal with the restrictive interpretation in L-E-A- and Ramirez-Mejia.
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 to made the family PSG ground largely superfluous.
This leaves you as litigators in a tricky situation. The IJ will be bound by L-E-A-, the BIA is unlikely to retreat from L-E-A-, and the Fifth Circuit seems disposed to go along with the L-E-A- view.
On the other hand, 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. 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 detained client’s current problems.
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 Jones Day 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 Jones Day – 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 (4th 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.
You probably will not encounter too many FGM cases at the Southern Border. Nevertheless, 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 Southern Border 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. And, sadly, you won’t be presenting these cases in Arlington.
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 (4th 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 at the Southern border. 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 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. Nor are the courts in Texas where most of you will be appearing.
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.htm was 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 anyone who 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 more arrests, more detention (particularly in far-away, inconvenient locations like, for instance, Laredo, TX), 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.
© Paul Wickham Schmidt, 2017, All Rights Reserved.
(08-01-17++)
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PROGRAM NOTE: I am a former Partner at Jones Day. resident in the Washington, D.C. Office.
U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?
Julia Preston of The Marshall Project reports in the Washington Post:
CHARLOTTE — Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.
From a stack of case files, Couch called out names of asylum seekers: Dina Marciela Baires from El Salvador and her three children. No answer. Lesley Carolina Cardoza from Honduras and her young daughter. Silence. After identifying 17 people who had failed to appear for their hearings, the judge ordered all of them to be deported.
The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.
Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.
Their cases are failing just as President Trump is rapidly expanding deportations.
Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.
Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.
As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.
The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.
Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.
When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.
In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.
In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.
María Arita and her children, Amilcar, left, and Allison, at their home in Charlotte. Arita came to the United States from Honduras in 2013 with her then-3-year-old son to escape a gang that was targeting her family. (Logan Cyrus/For The Washington Post)
The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.
María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.
“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”
Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.
A photo of María Arita from when she was living in Honduras, next to a school photo of her son, Amilcar. (Logan Cyrus/For The Washington Post)
Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.
Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.
For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.
But not in Charlotte. Couch and Judge — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.
Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.
“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.”
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Read Julia’s complete article at the link.
According to the FY 216 Statistics Yearbook, elsewhere in the Fourth Circuit the Baltimore Immigration Court granted 63% of asylum application while the Arlington Immigration Court was nearly identical with 62%. The Charlotte Immigration Court, on the other hand, was 17%.
The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) and the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) both commanded that the “well-founded fear” standard for asylum be generously applied in favor of applicants! Although the BIA has not been as generous as it could and should have been in cases involving Central Americans needing protection from targeted gang violence, they have gone out of their way to reject notions that there should be any “presumption” against asylum grants from Central America. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 251 (BIA 2014), the BIA cautioned their 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.”
Moreover, established BIA precedents giving favorable treatment to LGBT individuals and those seeking protection from domestic violence frequently apply to cases of those fleeing Central America. See e.g., Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (gays); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (domestic violence). Additionally, the Fourth Circuit Court of Appeals has generally been protective of the substantive and procedural rights of asylum seekers. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (family members).
Something is seriously wrong in the Charlotte Immigration Court. Due process is not being fully protected. More seriously, nobody in “the system” — DOJ & EOIR — appears to care or be doing anything to correct the problems in Charlotte.
This is symptomatic of deeper problems in our U.S. Immigration Court system: 1) a weak BIA that fails to protect asylum seekers and require IJs to follow precedents favorable to asylum seekers; 2) lack of proper training compounded by the departure of experienced judges, hiring of new judges, and an inexplicable decision by the DOJ to cancel IJ training this year; and 3) a biased selection system that has systematically excluded private sector asylum expertise developed in representing applicants over this and the past three Administrations. Overall, it is what happens when a system lacks judicial independence and has not developed a merit selection system for judges.
The Immigration Judges in Charlotte can and should do better in providing fairness and due process for asylum seekers. Given the systemic failures, at present it appears to be up to those representing asylum seekers and the Fourth Circuit Court of Appeals to see that asylum seekers in the Charlotte Immigration Court receive the Constitutional due process to which they are entitled.
PWS
07-31-17
FLASH: AILA WITHDRAWS SUPPORT FOR MORE U.S. IMMIGRATION JUDGES & EOIR FUNDING! — UNDER TRUMP/SESSIONS REGIME “increased judges will not necessarily promote due process and fairness for those appearing in proceedings!”
“From: Greg Chen [mailto:GChen@aila.org]
Sent: Wednesday, July 05, 2017 10:06 AM
To: AILA Interior Enforcement List
Cc: AILA Interior Enforcement List; Kate Voigt; Laura Lynch; Kerri Talbot
Subject: [interiorenforcement] AILA shifted position on IJ funding – CJS approps
Everyone,
AILA’s board just voted to change our position on the funding of immigration judges: in brief, AILA will no longer be supporting increased funding for IJs. The change in position was motivated by two principal concerns: 1) additional funding for judges will enable this administration to deport more people more rapidly; and 2) increased judges will not necessarily promote due process and fairness for those appearing in proceedings, esp under the current administration.
We will convey this to key friends on the Hill, but we haven’t decided how actively we plan to push this.
Here’s what the House FY18 CJS bill includes, according to the summary posted by House approps:
Executive Office for Immigration Review (EOIR) – Funding for the EOIR is increased by $64.5 million, for a total of $505 million. This increase will provide for 65 additional immigration judge teams to process immigration reviews more quickly, and reduce the backlog of pending cases.
Gregory Z. Chen, Esq.
Director of Government Relations
Direct: 202-507-7615 I Cell: 202.716-5818 I Email: gchen@aila.org American Immigration Lawyers Association
Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org<http://www.aila.org/>
1331 G Street, NW, Suite 300, Washington, DC 20005″
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I can understand the sentiment that brought this about. I’m not sure, however, that this isn’t an exercise in “kicking the cat.” The real problem here is lack of independence and the highly inappropriate, facially unethical, role of the DOJ, which Congress created, allowed to fester, and failed to date to fix. And the type of misguided GOP agenda behind an atrocity like H.R. 391 also doesn’t help.
Interesting that the last several Administrations have mismanaged the Immigration Courts to the point where they appear to be doing exactly the opposite of their single mission: guaranteeing fairness and due process for all!
With this particular Congress and Administration, AILA’s change in position probably won’t mean much. Only White Nationalist and restrictionist groups seem to have any influence.
Sadly, years of hard-won progress in establishing due process in the Immigration Court system have now been squandered. EOIR and the Immigration Courts have returned to the mess that they were before EOIR was created.
Bad time to be seeking justice in America! Thanks to my former Georgetown Law Refugee Law & Policy student Shaw Drake for sending me this item!
PWS
07-27-17
GOP ATTACK ON DUE PROCESS: HOUSE GOP ADVANCES BILL TO EVISCERATE U.S. ASYLUM SYSTEM — WOULD RETURN CHILDREN, WOMEN & FAMILIES TO LIFE THREATENING SITUATIONS WITHOUT DUE PROCESS! — STOP H.R. 391!
http://www.humanrightsfirst.org/press-release/house-bill-would-return-persecuted-refugees-danger
Human Rights First reports:
HOME / PRESS RELEASE / HOUSE BILL WOULD RETURN PERSECUTED REFUGEES TO DANGER
July 26, 2017
House Bill Would Return Persecuted Refugees to Danger
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Immigration Detention, Refugee Protection
Washington, D.C.—Human Rights First today urged members of the House Judiciary Committee to reject the Asylum Reform and Border Protection Act when it marks up the legislation today. The bill would severely undermine access to protection for genuine refugees.
“The proposed legislation does nothing to enhance the integrity of our asylum system, but instead puts individuals, particularly women and children, at grave risk of return to persecution, trafficking, and death in their home or third countries,” said Human Rights First’s Eleanor Acer. “Instead, this bill is a disgraceful attempt to evade U.S. refugee protection responsibilities and foist them on to other countries. Not only would this effort undermine U.S. global leadership, but it would set a poor example for the countries hosting the vast majority of the world’s refugees. The bill would make it even more difficult for refugees to receive asylum in our already rigorous asylum system and leave vulnerable children, families, and other individuals at risk of severe harm or death.”
The bill seeks to make it harder for those fleeing persecution and torture to file for asylum in the United States, a process already fraught with obstacles. Several groups of particularly vulnerable individuals—including children, women, and LGBTQ asylum seekers—would be disproportionately impacted by certain provisions, which essentially eliminate protection for refugees who have been victims of crimes in their home countries. The bill attempts to eliminate the statutory basis for release on parole, which would leave asylum seekers detained in violation of U.S. treaty obligations, and held in jails and facilities with conditions similar to jails despite the existence of more cost-effective and humane alternative measures that result in compliance and appearance at hearings. The bill also seeks to ban federal government-funded counsel, including for unaccompanied children, some of whom are toddlers or even younger.
Human Rights First, along with 73 other rights and immigration groups, sent a letter to members of the committee today urging them to reject the legislation. Among many changes to law, the Asylum Reform and Border Protection Act of 2017 would:
Raise the expedited removal screening standard to an unduly high level. The bill would require that an asylum seeker—in order to even be allowed to apply for asylum—not only show a “significant possibility of establishing eligibility for asylum” but also prove it is more likely than not that his or her statements are true—the standard for a full adjudication, not a summary screening interview.
Appear to prevent arriving asylum seekers who have passed the credible fear screening process from being paroled from immigration detention, instead leaving them in jails and jail-like facilities for months or longer, even though there are more fiscally-prudent and humane alternatives that have been proven effective.
Deny asylum to large numbers of refugees based on transit or stays in countries where they had no legal status, or no lasting legal status, and to which they cannot be returned in most cases. This provision would seek to deny asylum to many refugees who have passed through Mexico, despite the risks and severe protection deficiencies there. In addition, refugees—who may have languished in a refugee camp for decades without the ability to legally work, access education or secure legal permanency—with valid claims would be left in a state of uncertainty, with no prospects for a durable solution and no secure future for themselves and their children.
Allow asylum applicants and unaccompanied children to be bounced to third countries (such as Mexico) despite the dangers and lack of protection from return to persecution there, and in the absence of any agreement between the United States and the countries in question for the reception of asylum seekers.
Categorically deny asylum and withholding of removal to refugees targeted for criminal harm—including rape and killing—based on their membership in a particular social group in their countries of origin. This extraordinarily broad provision would deny protection to asylum seekers who have been beaten for being gay, who have suffered horrific domestic abuse, or who have been treated as property by virtue of their status as women, to name but a few examples. It would also effectively eliminate asylum eligibility or withholding of removal for asylum seekers who have been victims of or who fear persecution related to gang violence in their home country.
State that the government not bear expense for counsel. The bill also states that in no instance will the federal government bear expense for counsel for anyone in removal or appellate proceedings. Children – including toddlers – the mentally disabled, and other vulnerable people cannot represent themselves in our complex immigration system.
Last week Human Rights First released a new report assessing the dangers facing refugees in Mexico in the wake of proposals from the Trump Administration and Congress to block refugees passing through Mexico from seeking protection in the United States. The analysis, “Dangerous Territory: Mexico Still Not Safe for Refugees” finds that migrants and refugees in Mexico face risks of kidnapping, disappearance, sexual assault, and trafficking, and that Mexican authorities routinely deport individuals to their home countries regardless of whether they fear return to persecution and the country’s human rights obligations.
Human Rights First notes that when Congress—with strong bipartisan support—passed the Refugee Act of 1980, the United States codified its commitment to the 1951 Refugee Convention and its Protocol. Under those treaties, states can’t return refugees to places where their lives or freedom would be threatened or reject potential refugees at the border. The United States is also a party to the Convention Against Torture, which prohibits governments from sending people to places where they would be in danger of being tortured, and to the International Covenant on Civil and Political Rights which prohibits the arbitrary detention of asylum seekers and migrants. Instead of turning away those seeking protection, the United States should be doing more to ensure their protection claims are properly assessed and due process is safeguarded.
“At a time when the world faces the largest refugee crisis in history, this bill sends a dangerous message to other nations, including those who host the overwhelming majority refugees: that the United States intends to shirk its responsibility to those fleeing violence and persecution,” added Acer.
For more information or to speak with Acer, contact Corinne Duffy at 202-370-3319 or DuffyC@humanrightsfirst.org.
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Corinne Duffy
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I also highly recommend this “spot on” analysis by David Bier of the Cato Institute of this warped and misguided attempt by GOP restrictionists in the House to destroy Due Process in the U.S. Asylum system without in any way addressing the real issues — conditions in foreign countries and our outdated and unuduy restrictive legal immigration system.
I Bier writes:
NOTE: The charts and formatting are much better if you go to,the link than on the reprinted version below.
Statement for the Record of David Bier of the Cato Institute* Submitted to House Committee on the Judiciary Markup of “H.R. 391 – Asylum Reform and Border Protection Act” July 26, 2017
The Asylum Reform and Border Protection Act (H.R. 391) would undermine the individual rights of people fleeing persecution and violence to seek asylum in the United States. The bill would obliterate the current asylum standards and now require asylum seekers to prove their claims to an impossible degree immediately upon their arrival at the border—without access to the documents or witnesses that they would need to do so. The government would then promptly deport without a hearing before an immigration judge those who fail this unattainable requirement, possibly to endure violence or persecution. The authors claim that this radical change is necessary due to an unprecedented surge of asylum applicants. In the 1990s, however, a similar surge of asylum seekers arrived in the United States, and Congress adopted much less severe reforms than those proposed in this bill. Even assuming that the applicants are submitting asylum applications for the sole purpose of gaining entrance to the United States, the bill does nothing to address the underlying cause of the problem: the lack of a legal alternative to migrate. As long as legal immigration remains impossible for lesser- skilled workers and their family members, unauthorized immigration of various kinds will continue to present a challenge. Asylum rule change will result in denials of legitimate claims Current law requires that asylum seekers at the border assert a “credible fear” of persecution.1 Asylum officers determine credibility based on whether there is a “significant possibility” that, if they allow the person to apply, an immigration judge would find that the fear is “well-founded,” a higher standard of proof. The credible fear interview screens out only the claims that obviously have “no possibility, or only a minimal or mere possibility, of success,” as U.S. Citizenship and Immigration Services (USCIS) puts it.2 If the USCIS asylum officer rejects the claim as not credible, the applicant may ask an immigration judge to review the determination the next day but is not granted a full hearing. Customs and Border Protection removes those who fail to assert or fail to articulate a credible fear. H.R. 391 would impose a much higher standard simply to apply for asylum in the United States. In addition to demonstrating that they had significant possibility of successfully proving their claim to an immigration judge, it would require applicants to prove that it is “more probable than
* The Cato Institute is a libertarian 501(c)(3) nonprofit think tank founded in 1977 and located in Washington D.C.
not” that their claims are true—a preponderance of the evidence standard.3 This standard eviscerates the lower bar that Congress established. The committee simply cannot expect that asylum seekers who may have had to sneak out of their country of origin in the dead of night or swim across rivers to escape persecution will have sufficient evidence the moment they arrive in the United States to meet this burden. In 2016, a group of Syrian Christians who traveled thousands of miles across multiple continents and then up through Mexico to get to the United States arrived at the border to apply for asylum.4 Thankfully, they met the credible fear standard and were not deported, which enabled them to hire an attorney to help them lay out their claim, but this new standard could endanger anyone who follows their path. An inability to provide sufficient evidence of their religion, nationality, residence, or fear would result in deportation immediately after presenting themselves at the border. The authors imply that requiring them to prove their statements are true is not the same as requiring them to prove their entire asylum case, but this is a distinction without a difference.5 Asylum applicants must state a “credible fear” of persecution. Those statements would then be subject to the much more stringent standard. Of course the government should demand the truth from all applicants, but this is a question of the standard by which asylum officers should use to weed truth from falsehood. It is virtually impossible that, by words alone, asylum seekers could prove that it is “more probable than not” that their statements are true. The committee should consider this fact: in 2016, immigration judges reversed nearly 30 percent of all denials of credible fear that came to them on appeal.6 This means that even under the current law, asylum officers make errors that would reject people with credible claims of persecution. If Congress requires an even greater burden, many more such errors will occur, but faced with the higher evidentiary requirement, immigration judges will have little choice but to ratify them. Here is another sign that the truth is not enough: asylum applicants with attorneys were half as likely to have their asylum denied by immigration judges in 2016 as those without attorneys. Indeed, 90 percent of all applicants without counsel lose their case, while a majority with counsel win theirs.7 This demonstrates that people need more than just honesty—they also need to understand what evidence is relevant to their case and need help to gather documents, witnesses, and other evidence to support their claim. For these reasons, Congress never intended the credible fear interview as a rigorous adversarial process because it wanted to give people who could credibly articulate a fear of persecution an opportunity to apply. It knew that while some people without legitimate claims would be able to apply, the lower standard of proof would protect vulnerable people from exclusion. As Senator Alan Simpson, the sponsor of the 1996 bill that created the credible fear process, “it is a significantly lesser fear standard than we use for any other provision.”8 Indeed, during the debate over the compromise version of the bill, proponents of the legislation touted that the fact that they had dropped “the more probable than not” language in the original version.9
Asylum surge is not unprecedented People can either apply for asylum “affirmatively” to USCIS on their own or they can apply “defensively” after they come into the custody of the U.S. government somehow, such as at the border or airport, to an immigration judge, which would include the credible fear process. If USCIS denies an “affirmative” applicant who is in the country illegally, the government places them in removal proceedings before an immigration judge where they can present their claim again. Reviewing the data on asylum claims, two facts become clear: total asylum claims peaked in the 1990s, and a substantial majority of claims are affirmative—that is, done voluntarily, not through the credible fear process or through removal proceedings. Although credible fear claims—a process that was first created in 1997—have increased dramatically, the overall number of asylum claims has still not reached the highs of the early 1990s. Unfortunately, the immigration courts have not published the number of cases that they received before 1996, but as Figure 1 shows, the United States has experienced similar surges of asylum seekers to 2016.10
Figure 1 Asylum Applications Received and Credible Fear Claims Approved, 1985-2016 160,000 140,000 120,000 100,000 80,000 60,000 40,000 20,000 0 USCIS Asylum Cases Immigration Judge Asylum Cases Credible Fear Approvals Sources: Department of Justice; Department of Homeland Security, and U.S. Citizenship and Immigration Services It is noteworthy that in the midst of the surge in the 1990s, Congress did not adopt the draconian approach that this bill would require. Rather, it created the credible fear process that the bill would essentially eliminate. The authors of the legislation, however, argue that the Obama administration turned the credible fear process into a rubber stamp, allowing applicants to enter regardless of the credibility of their claims. But again a look at the numbers undermines this 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
It is noteworthy that in the midst of the surge in the 1990s, Congress did not adopt the draconian approach that this bill would require. Rather, it created the credible fear process that the bill would essentially eliminate. The authors of the legislation, however, argue that the Obama administration turned the credible fear process into a rubber stamp, allowing applicants to enter regardless of the credibility of their claims. But again a look at the numbers undermines this
narrative. As Figure 2 highlights, the Obama administration denied an average of about 25 percent of all asylum seekers from 2009 to 2016.11
Figure 2 Credible Fear of Persecution Claims, FY 1997 to 2017 120,000 100,000 80,000 60,000 40,000 20,000 0 Completed Cases (left) Approval Share (Rate) Sources: Rempell (1997-2008); USCIS (2009-2016)
Despite fluctuations of up to 35 percentage points during this time, there is simply no relationship at all between the rate of approval and the number of claims being made. Factors other than the approval rate must be driving the number of applications. Some of these claims are undoubtedly invalid or even fraudulent, but given that a majority of claims by individuals with representation in immigration court win their asylum claims, it is obvious that the credible fear process has protected many people from deportation to persecution abroad.12 If fraudulent claims are a concern, Congress can best address it in the same way that it has successfully addressed other aspects of illegal immigration from Mexico: through an expansion of legal immigration. During the 1950s and again recently in the 2000s, Congress expanded the availability of low-skilled guest worker visas, which led to a great reduction in the rate of illegal immigration. Figure 3 presents the number of guest workers entering each year and the number of people each border agent apprehended each year—the best available measure of illegal immigration. It shows that the period of high illegal immigration occurred almost exclusively during the period of restrictive immigration.13 Most guest workers today are Mexicans.14 This is largely due to the fact that the current guest worker programs are limited to seasonal temporary jobs and Mexico is closer to the United
States, which makes trips to and from the United States easier. By comparison, most asylum seekers are from Central America. Assuming that a significant portion of these asylum seekers are either reuniting with illegal residents already in the United States or are seeking illegal residence themselves, these seasonal programs are unavailable to them.
Figure 3 Guest Worker Entries and Apprehensions of Illegal Aliens per Border Patrol Agent, 1946-2015 1,200 500,000 1,000 800 600 400 200 400,000 300,000 200,000 100,000 00 Apprehensions Per Agent (left) Guest Workers (Right) Sources: Border Patrol; Immigration and Naturalization Service; Department of Homeland Security 1946 1948 1950 1952 1954 1956 1958 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014
Congress should create a temporary work visa program for low-skilled workers in year-round jobs, similar to the H-1B visa for high-skilled workers.15 This would cut down on asylum fraud and illegal immigration without the downsides that this bill presents.
1 8 U.S. Code § 1225 2 U.S. Citizenship and Immigration Services, “Lesson Plan Overview – Credible Fear,” February 28, 2014, http://cmsny.org/wp-content/uploads/credible-fear-of-persecution-and-torture.pdf. 3 P. 2 Justia, “Evidentiary Standards and Burdens of Proof,” https://www.justia.com/trials-litigation/evidentiary-standards- burdens-proof/ 4 Molly Hennessy-Fiske, “Who were the Syrians who showed up at the Texas border? Some are Christians,” Los Angeles Times, December 7, 2015, http://www.latimes.com/nation/la-na-syrian-texas-christians-20151207- story.html 5 “Markup of H.R. 1153, The Asylum Reform and Border Protection Act,” House Judiciary Committee, March 4, 2015, https://judiciary.house.gov/wp-content/uploads/2016/02/03.04.15-Markup-Transcript.pdf. 6 U.S. Department of Justice Executive Office for Immigration Review, “FY 2016 Statistics Yearbook,” March 2017, https://www.justice.gov/eoir/page/file/fysb16/download. 7 TracImmigration, “Continued Rise in Asylum Denial Rates,” Syracuse University, December 13, 2016, http://trac.syr.edu/immigration/reports/448/. 8 142 Cong. Rec. S4492 (1996) https://www.congress.gov/crec/1996/05/01/CREC-1996-05-01-pt1-PgS4457.pdf 9 142 Cong. Rec. H11081 (1996) https://www.congress.gov/crec/1996/09/25/CREC-1996-09-25-pt1-PgH11071- 2.pdfhttps://www.congress.gov/crec/1996/09/25/CREC-1996-09-25-pt1-PgH11071-2.pdf 10 U.S. Department of Justice Executive Office for Immigration Review, “Statistics Yearbook,” https://www.justice.gov/eoir/statistical-year-book Department of Homeland Security, “Yearbook of Immigration Statistics 2004,” https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_2004.pdf U.S. Citizenship and Immigration Services, “Asylum Division Quarterly Stakeholder Meeting,” https://search.uscis.gov/search?utf8=%E2%9C%93&affiliate=uscis_gov&query=Asylum+Division+Quarterly+Stak eholder+Meeting&commit= 11 U.S. Citizenship and Immigration Services Asylum Division, “Credible Fear Data,” https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED- Credible_Fear_Workload_Report_Summary_POE_and_Inland_Caseload_through_2015-09.pdf https://www.uscis.gov/sites/default/files/USCIS/Outreach/Upcoming%20National%20Engagements/PED_CredibleF earReasonableFearStatisticsNationalityReport.pdf https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED- Credible_Fear_Workload_Report_Summary_POE_and_Inland_Caseload_through_2015-09.pdf https://www.chapman.edu/law/_files/publications/clr-18-rempell.pdf https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED- _Credible_Fear_and_Reasonable_Fear_Statistics_and_Nationality_Report.pdf 12 http://trac.syr.edu/immigration/reports/448/ 13 Alex Nowrasteh, “Guest Worker Visas Can Halt Illegal Immigration,” Cato Institute, May 5, 2014, https://www.cato.org/blog/guest-worker-visas-can-halt-illegal-immigration. 14 Alex Nowrasteh, “H-2B Expansion Doubles Down on Successful Border Control Strategy,” Cato Institute, December 23, 2015, https://www.cato.org/blog/h-2b-expansion-doubles-down-successful-border-control-strategy. 15 Alex Nowrasteh, “How to Make Guest Worker Visas Work,” Cato Institute Policy Analysis 719, January 31, 2013, https://www.cato.org/publications/policy-analysis/how-make-guest-worker-visas-work.
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Bier’s report notes that U.S. Immigration Judges overruled approximately 30% of credible fear denials by the DHS Asylum Office. Although I did a modest number of credible/fear reasonable fear reviews, including some in temporary assignments to “detained courts” on the Southern Border, I found the number of erroneous credible/reasonable fear denials to be in the 80% to 90% range, including a number of cases that were “clear grants” under Fourth Circuit case law. The idea that Border Patrol Officer could fairly make these determinations is beyond preposterous!
Chairman Goodlatte and his GOP buddies seek nothing less than the end of a fair asylum adjudication system that fulfills our international mandates. H.R. 391 also makes a mockery of due process. In other words, the Goodlatte GOP crowd seeks to turn the U.S. into a “Third World” imitation of a democracy. These types of legislative tactics are exactly what I saw for 21 years of adjuducating claims from countries where the rule of law had broken down.
Whether immigration/refugee advocates or not, every American Citizen who cares about our Constitution and the rule of law should be fighting measures like this tooth and nail. If Goodlatte & Co. win, we all lose, and America will be well on its way to becoming just another third world facade of a democratic republic.
Rather than the totally bogus restrictionist agenda being pushed by Goodlatte and the GOP, here’s what REALLY should concern us as a nation, taken from one of my recent speeches:
“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 and 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,” 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.”
Picking on the already vulnerable, disposed, and endangered is what the Goodlatte/GOP restrictionist program is really about.
PWS
07-27-17