"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
“Elvis Njenula Yahm, a citizen of Cameroon facing removal, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his pro-Anglophone political opinion. An immigration judge denied all three avenues for relief, and the Board of Immigration Appeals (BIA) dismissed Yahm’s appeal. … A recent decision supports Yahm’s view that an adverse credibility finding does not relieve the agency of its obligation to also consider documentary support for a CAT claim. See Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). … Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive. See Arulnanthy, 17 F.4th at 598. Yahm’s petition for review is GRANTED and these proceedings are REMANDED for the BIA to address the CAT claim consistent with Arulnanthy.”
Way to go, Keith! Congrats! Winning justice for asylum seekers in the 5th Circuit is no mean feat!
The 5th Circuit decision in Arulnanthy sounds very much like the 4th Circuit’s decision in Camara v. Ashcroft, 378 F. 3d 361 (4th Cir. 2004). Camara actually changed for the better the preparation, presentation, and most of all results in asylum cases in the 4th Circuit.
I consider it the “precursor” to the REAL ID provision now incorporated in the INA requiring IJ’s and the BIA to consider the “the totality of the circumstances, and all relevant factors,” in making credibility determinations. If that is actually done, which it isn’t in far too many cases in today’s broken Immigration Courts, the results are likely to be far more positive for asylum seekers and other respondents seeking relief in Immigration Court.
The “Camara effect” was real. For example, in 2004, on the “eve of Camara,” the asylum denial rate at the Arlington Immigration Court, where I sat, in the 4th Circuit, was in excess of 70%. By the time I retired in 2016, it was the polar opposite. The asylum grant rate exceeded 70%! SOURCE: TRAC Immigration.
Of course, no one factor is responsible for that positive change. And, I acknowledge that in the Charlotte Immigration Court, also in the 4th Circuit, where several judges were reknowned for their hard-core anti-asylum attitudes, the denial rates remained disturbingly above the national average. And, of course, the “institutionalized anti-asylum bias” ushered in and promoted at EOIR by the Trump regime resulted in another dramatic, totally unjustified, downturn in asylum grants by EOIR across America after 2016.
Nevertheless, positive appellate guidance on asylum is a major factor in establishing and maintaining due process in the Immigration Courts. Unfortunately, almost none of that expert positive guidance on asylum and other forms of relief comes from Garland’s BIA precedents. Additionally, although some of his appointments have been welcome, overall, Garland has done a very poor job of bringing in dynamic progressive expert leaders and judges to reverse the anti-asylum, anti-due-process, anti-immigrant “culture” that continues to haunt EOIR at all levels.
The “results” of his dysfunctional courts speak for themselves. Backlogs build, Circuit Courts struggle with EOIR’s poor “haste makes waste” work product, and decisional consistency on asylum is shockingly, “tragicomically” lacking!
In almost all ways, this system has seriously regressed in the past decade, even while eating up more resources! That’s about as much of an “engineered lose-lose” as one can imagine! Yet, Biden, Harris, and Garland appear impervious to this glaring, “fixable” problem that threatens our entire justice system!
Shouldn’t racial justice advocates be all over Garland, Monaco, Gupta, and Clarke for the EOIR’s disgraceful performance on asylum claims involving Cameroonians and other applicants of color! If not, why not? The entire “progressive social justice community” should be expressing “collective outrage” to the Biden Administration about the Garland DOJ’s disgraceful performance at EOIR and on other human rights issues involving race and immigration.
It’s also worthy noting, as my Round Table colleague retired Judge Jeffrey Chase has pointed out before, that the Biden Administration has granted TPS to Cameroonians in the U.S.So, there is really no issue about the truly miserable human rights conditions there. That is, apparently, except in Garland’s Immigration Courts where the “programmed to deny” and “good enough for government work” mentalities continue to prevail — even where the stakes are life or death!
Additionally, the regulations implementing the Convention Against Torture (“CAT”) at EOIR initially became effective on Mar. 22, 1999 — over two decades ago. I remember that at one of the next Immigration Judge Conferences, probably in 1999 or 2000, the training specifically instructed that because of the country-conditions related nature of CAT, adverse credibility rulings against a respondent were not determinative of CAT claims.
Yet, more than two decades later, Immigration Judges and, worse yet, the BIA are still making that same fundamental error! How does this make the idea that EOIR is an “expert court” or that “constitutional due process is being protected at EOIR” anything other than a “sick joke.” Yet, the mockery of justice continues and nobody at Justice, from the top down, is being held accountable for stomping on life-determining legal and Constitutional rights! Why?
“Petitioner Giscard Nkenglefac, a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”), Agnelis Reese, denied Nkenglefac’s application for relief from removal and ordered him removed to Cameroon after determining that Nkenglefac was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Nkenglefac was removed to Cameroon. Nkenglefac now petitions for review of the BIA’s dismissal of his appeal from the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Nkenglefac challenges the IJ’s reliance on his U.S. Customs and Border Protection (“CBP”) and asylum credible fear interviews that were not entered into the hearing record of the removal proceeding, nor, indeed, raised in that hearing at all, to make an adverse credibility finding. … Nkenglefac argues that the IJ erred as a matter of law by drawing negative credibility inferences from summaries of his CBP and credible fear interviews because neither interview was submitted into the record during his proceeding, much less adverted to. Nkenglefac also argues that he did not waive this argument because he could not have raised the issue before the IJ given that he had no notice the IJ would rely on these documents prior to issuance of her decision. … [A]t no point during the hearing before the IJ was Nkenglefac provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence. Inspection of the hearing record confirms that Nkenglefac was not given the opportunity to explain perceived inconsistencies in the government summaries of his prior uncounseled interviews.5 Indeed, the voluminous testimonial record, including extensive government cross-examination and IJ direct inquiry, gives no indication that Nkenglefac had previously made any inconsistent statements, yet the IJ, three months later, determined that “inconsistencies and omissions . . . undermine critical parts of Respondent’s claim” to such an extent that the court denied “Respondent’s application based on lack of credibility.” … The BIA majority—affirming the IJ’s decision—also determined that Nkenglefac’s argument regarding the absence of the CBP and credible fear interviews from the record was “waived” because “the [trial] transcript reflects that [Nkenglefac’s] former counsel never requested that these records . . . be made a part of the record.” However, we fail to understand why Nkenglefac’s counsel should have introduced these government summaries into the record to anticipate and explain later-perceived inconsistencies when they were never identified, referenced, or discussed. It is also worth noting that there is no evidence—beyond the statement of the BIA majority—that Nkenglefac’s counsel failed to preserve this issue on appeal. The issue was discussed at length in Nkenglefac’s appeal brief to the BIA and again in his brief to this court. Furthermore, this observation stands in contravention to existing BIA law that “an adverse credibility determination should not be based on inconsistencies that take an alien by surprise.” Matter of Y-I-M-, 27 I. & N. Dec. 724, 726-29 (BIA 2019) (quote at 726). Notably, the Government’s brief on appeal does not argue that Nkenglefac has waived this argument. … We GRANT the petition for review and REMAND this case to the BIA for further proceedings consistent with this opinion.”
[Hats waaaayyyy off to Homero López, Jr., who reports that he is in touch with his client and is hopeful of bringing him back to the USA. Audio of the oral argument is here.]
Once again, credibility, the problematic issue in this case, is not a profound legal concept. It’s supposedly the “bread and butter of Immigration Judging.” Yet, both the IJs and the BIA continue to often get it wrong. Perhaps “dead wrong” in the cases of asylum seekers! Why isn’t this fundamental flaw at the all-important “retail level” of our justice system receiving the necessary attention and corrections from Garland and the Biden Administration?
As one “Courtside Commenter” said:
I think this is the IJ who retired with a 100% asylum denial rate [actually it was 99.4%, denying 155 of 156 claims she “heard” — but didn’t listen to — over a career that lasted far too long]!And Cameroon is now a TPS country.
This decision is proof perfect of EOIR’s deportation assembly line approach.And I’ve mentioned a number of times the alarming problems with CBP arrival statements noted by the US Commission for International Religious Freedom, an internal government component, which has repeatedly flagged the fact that the resulting “statements” are not the verbatim transcripts they appear to be, and often contain questions that were never actually asked of the respondent.
As pointed out in the above comment, Cameroon is now a TPS country. Additionally, one of the “five top nationalities” that came before this “asylum denial machine” were asylum seekers from Eritrea. Although they found no success with her, the EOIR statistics for FY 2022 show that that every “merits decision” on Eritrean asylum was granted. There were exactly ZERO, “0” merits denials. Seehttps://www.justice.gov/eoir/page/file/1107366/download.
Thankfully, Judge Reese has retired. But the endemic problems she symbolized, the lack of effective appellate review, and disdain for due process for asylum seekers by the BIA remain overarching problems that Garland has stubbornly failed to effectively address.
Additionally, in another “under the radar yet highly significant problem,” Garland’s OIL within the USDOJ Civil Division continues to “defend the indefensible” coming out of the BIA. This wastes Government and private sector litigation resources, not to mention precious Article III Court time. It also turns due process and immigrant justice in the U.S. into a random game of chance.
Obviously, there is a severe lack of leadership all over the USDOJ under Garland. Moving toward the “halfway point” in the Biden Administration, there still is no appointed and confirmed Assistant Attorney General for the Civil Division!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
VOA: A U.S. State Department annual report highlighted concerns about continuing human rights abuses in Russia, China, Iran, Venezuela, Egypt and other authoritarian nations, as well as the impact the coronavirus pandemic has had on rights practices around the world.
Reuters: The 210,000 migrants arrested in March, a figure made public in a court filing on Friday night, is the highest monthly total on record since February 2000, according to U.S. Customs and Border Protection statistics dating back to 2000.
RAICES: On Monday, April 18th, 2022, immigrant legal services providers, advocates and community members will hold a press conference to announce the launch of the Harris County Immigrant Legal Services Fund (ILSF), which will provide free legal representation for immigrant members of the county who are detained and facing the threat of deportation. As of February 2022, Harris County had the most residents with pending immigration court cases in the country.
CNN: While immigration advocates celebrated the decision to reverse Title 42, many moderate Democrats have sounded the alarm warning that lifting the policy without an adequate plan in place will lead to a rapid influx of migrants at the Southern border, something that Republicans will be quick to seize on the campaign trail.
AP: The bill was filed after Wyandotte County passed a “sanctuary” ordinance in February that would provide local identification cards for immigrants and other residents and would prevent local law enforcement from helping the federal government enforce immigration laws unless public safety is threatened. Lawrence and Roeland Park have similar ordinances.
Law360: A federal watchdog rebuked U.S. Immigration and Customs Enforcement for an $87 million no-bid contract to house migrant families in hotels, saying the agency hadn’t justified directly awarding the deal to a nonprofit inexperienced in emergency family residential services.
Denver Gazette: The Cuban government has not been accepting deportations of Cuban nationals from the U.S. for more than six months, at a time when tens of thousands are leaving the island to reach the U.S. in the largest exodus since the 1980s Mariel boatlift.
WTTW: An expanded class of low-income workers will permanently get a larger tax break via the Earned Income Tax Credit, and that benefit will be extended to those who file taxes with an Individual Taxpayer Identification Number (ITIN), something that Rep. Aaron Ortiz, D-Chicago, said is important to many immigrants who play an important role in the state’s economy. Illinois is allocating $70 million for healthcare for undocumented immigrants. See also Illinois launches health care coverage for older immigrant adults aged 55 to 64.
Law360: The Fourth Circuit refused to award attorney fees to a man who convinced the full appeals court that the federal government had arbitrarily rejected him for special immigrant juvenile status, saying the U.S. was justified in fighting the suit.
Law360: The Seventh Circuit seemed unconvinced Wednesday that it should unsettle the dust in a dispute over a Trump-era public charge rule that the Biden administration has already begun redrafting by letting a group of Republican-led states enter the fray.
Law360: U.S. Citizenship and Immigration Services will grant naturalization requests made by two immigrant veterans after federal courts refused to toss the soldiers’ lawsuits alleging the agency unfairly disqualified them from expedited processing of their citizenship bids.
Law360: A D.C. federal court has denied the U.S. Department of Homeland Security’s bid to block inspections of detention facilities that immigration advocates say are denying inmates access to counsel, but the government did get its choice of monitor for the probe.
Law360: Eighteen additional states on Thursday signed on to a lawsuit started by Arizona, Louisiana and Missouri to challenge the Biden administration’s decision to wind down a pandemic-related order known as Title 42 that allows the quick expulsion of migrants arriving at U.S. land borders.
Hill: A coalition of immigrant rights groups filed a lawsuit Thursday seeking information from Immigrations and Customs Enforcement (ICE) about the agency’s Intensive Supervision Appearance Program (ISAP), a so- called alternative to detention program that has ballooned during the Biden administration.
NJ Monitor: Police do not have to — and should not — advise crime suspects that their cooperation could impact their immigration status, a New Jersey appeals court ruled Friday.
USCIS: Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
DHS: The key program areas include: Applying for naturalization; Accessing humanitarian protection during immigration processing
Bidding on DHS contracts; Countering all forms of terrorism and targeted violence; Filing complaints and seeking redress in DHS programs and activities; Airport screening; Accessing Trusted Traveler Programs.
AILA: USCIS announced that its website will now feature a Lockbox Filing Location Updates page, where customers can track when lockbox form filing locations are updated. Updates will also be emailed and announced on social media.
EOIR: Since April 2021, Judge Cheng has served as the Regional Deputy Chief Immigration Judge for the Eastern Region at EOIR. She previously served as a Deputy Chief Immigration Judge from 2017 to 2021, and she was the Acting Principal Deputy Chief Immigration Judge from August 2020 to February 2021. Judge Cheng has also served in the New York Immigration Court both as an Assistant Chief Immigration Judge from 2015 to 2017, and as an Immigration Judge from 2009 to 2015. Before joining EOIR, she served as Assistant Chief Counsel for the Department of Homeland Security, Immigration and Customs Enforcement, from 2002 to 2009; and before that, she practiced immigration law in New York from 2000 to 2002.
AILA: EOIR announced the appointment of Beth Liebmann as a member of BIA by Attorney General Merrick B. Garland. Biographical information for Liebmann has been provided.
BIA: Whether, in light of U.S. v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), and regardless of the specific mens rea of an underlying crime, the commission or attempted commission of a felony, theft, or an assault under Texas Penal Code § 30.02(a)(3) necessarily supersedes or implicitly contains generic burglary’s intent element, which requires an “intent to commit a crime” upon entry into a building or habitation. Due Date: May 3, 2022
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Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The latest guidelines of ICE are welcomed by the American Immigration Lawyers Association (AILA). The memo will allow prosecutors to resolve cases immediately. It will help in reducing the backlog in immigration court proceedings. Thousands of people are waiting in line for years to get asylum or a green card. The Doyle Memorandum offers clear guidelines for prosecutors.
In the past, ICE Prosecutors have not always closely adhered to PD memos issued by OPLA. In addition, federal courts have, at times, intervened and enjoined prosecutorial discretion policies by ICE.
But one thing is clear. With nearly 1.7 million cases currently pending in immigration courts and the Board of Immigration Appeals, let’s hope that ICE Prosecutors will “do justice,” conserve scarce administrative resources best used against high priority cases, and remove low priority cases from the deportation process. This will not only make the U.S. a more safe and equitable nation, but will help keep peaceful and hardworking families together.
On May 12, 2022, ICE Principal Legal Advisor Kerry Doyle and ICE Detroit Chief Counsel Tara Harris will hold a community meeting with interested legal services providers, non-governmental organizations (NGOs), and community stakeholders who work with immigrant communities in Michigan and Ohio.
This meeting presents a unique opportunity to hear directly from PLA Doyle on her recently issued guidance to ICE attorneys on enforcing the civil immigration laws and prosecutorial discretion. It is anticipated that specific guidance on process will be provided.
For more information on how to submit a request for PD, please see the ICE Website.
Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek. He serves as counsel to the Consulate of Mexico, Michigan/Northern Ohio.
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Read the rest of Richard’s outstanding and very informative analysis at the link.
It’s critical that Immigration Judges and the BIA take an active role in “encouraging and motivating” parties to maximize the use of PD. One possible tool is proactively closing certain types of cases without waiting for motions.
Either party that wants the case back on the docket can, of course, make a motion to redocket. Based on my experience with several past similar programs at the BIA, I anticipate that such motions would be relatively rare. Moreover, I would be reluctant to “redocket” a case without a joint agreement from the parties that it will be resolved in a “short hearing,” or a compelling reason to proceed in Immigration Court (e.g., the respondent failed to apply, committed a crime, or was denied TPS).
It’s going to take teamwork, cooperation, and creative thinking among the parties and the courts to get dockets back in shape so that Immigration Judges can do their jobs in something “approaching real time.”
PD could be the key to success; or, it could become just another in the long line of things that looked good on paper but never achieved full potential. Time, and the efforts of all parties concerned to solve the problem in the most constructive and practical ways possible, will tell.
Secretary Mayorkas Designates Cameroon for Temporary Protected Status for 18 Months
Release Date: April 15, 2022
WASHINGTON— Today, the Department of Homeland Security (DHS) announced the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.
“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”
A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.
This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022 will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.
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According to TRAC, there were 3,191 pending Cameroonian cases in Immigration Court as of March 22, 2022. https://trac.syr.edu/phptools/immigration/court_backlog/. On the basis of my experience, I would guess that most of these are in the mid-Atlantic region.
Cameroonian asylum cases were a “staple” in Arlington over my 13 years on the bench ending on June 30, 2016. For example, in FY 2012, they were approximately 9% of my asylum docket, although that number dwindled between then and my retirement.
The other 1/3 of cases are disposed of in “other” ways. This indicates that with TPS as a tool, almost all of the pending Cameroonian cases at EOIR could be resolved in short order without diminishing anyone’s rights.
That’s a “drop in the bucket” on a 1.8 million case backlog. But, it does suggest that better docket management tools, ones that comply with due process, are available to Immigration Judges and could be built upon for the future with more visionary and due-process-focused leadership at EOIR and DOJ.
Sadly, this profile also confirms that the Biden Administration’s illegal use of Title 42 to return Cameroonians to harm’s way without an opportunity to apply for asylum has been exactly the race-based, grotesque violation of asylum laws, human rights, and human dignity that critics have asserted.
It also graphically demonstrates why real Democrats, core progressive supporters who put Biden and company in office, must aggressively stand up against the disgraceful agitation by a minority of Dem legislators and uninformed, amoral politicos within the Administration to retain the already totally unjustifiable Title 42 blockade!
Continuing violation of domestic and international law through use of Title 42 is NOT, I repeat NOT, an option! Yes, the Administration needs to get a plan in place for an orderly restoration of asylum processing for Cameroonians, Haitians, Latin Americans, Ukrainians, Russians, Afghans, and allother nationalities at our Southern Border.
Fair, humane, advance processing of those seeking asylum at the border NOW is the essential key to avoiding a mess on May 23. Pumping credibility, efficiency, humanity, and proper generosity into the asylum system at the border NOW will reduce the chances of an “immediate backlog” come May 23.
More importantly, showing that our laws can work in a fair, humane, and efficient way will encourage individuals seeking asylum to come to legal ports of entry to apply, rather than seeking more dangerous and difficult irregular entry that does not hold out the same prospects for rapidly obtaining legal status. Why wouldn’t legitimate asylum seekers present themselves at legal ports of entry if we had a fair, functioning, transparent system for processing them?
By eliminating the need and reducing the motivation for legal asylum seekers to attempt irregular entries to obtain refuge, the traffic between ports of entry should be reduced even though of course not eliminated. And the “expedited removal” procedures available under current law to CBP for those apprehended without credible asylum claims while attempting unauthorized entires are perfectly adequate to quickly process removals of those with no legal claim to be here!
Assuming that all or most asylum seekers will attempt unauthorized entries between legal ports will become a dangerous “self-fulfilling prophecy.” Yet, to the extent that the Biden Administration has a plan, it appears to be driven by the misguided notion that all the “action” will be at unauthorized crossing points. See, e.g., https://immigrationimpact.com/2022/04/12/what-is-bidens-plan-to-end-title-42/ (a sad commentary on wobbly, uninformed, unprincipled, pedestrian, un-creative thinking about an important solvable problem if I’ve ever seen one).
That’s only going to happen if the Administration continues to ignore the pressing need for immediate steps to establish the credibility of the asylum system at ports of entry.
The Administration went to considerable trouble to establish a “new” regulatory framework for processing asylum claims at the border (which becomes effective on May 28). I was one of those who pointed out serious flaws in the new system adopted.
One of the main defects is that for integrity, legal guidance, and effective supervision it heavily relies on Garland’s dysfunctional, hopelessly backlogged, and still anti-asylum-tilted Immigration Courts, at least where some of the common types of asylum applications at the border, like those from Northern Triangle countries, are concerned. These “courts that aren’t really courts” have shown a disturbing lack of asylum expertise and little effective commitment to a fair and practical application of asylum laws nationwide. It’s basically still a “denial factory” — just as Sessions and Barr staffed and manipulated it to be. That has spelled disaster in the past and will continue to do so in the future unless it can be “sidestepped” by granting more cases at the border without calling on these “courts.”
There’s where the “new system” has potential to work! One key advantage of the “new system” that many of us applauded is the potential for the USCIS Asylum Office expeditiously to grant many more claims at or near the border, thus entirely avoiding the broken Immigration Courts, prolonged detention, and releasing individuals to the interior without status.
As asylees, refugees can be admitted in a legal, work-authorized status right off the bat. Not only does that eliminate the never-ending debate about appearing for later Immigration Court hearings, but it also helps the economy and resettlement by putting individuals anxious to support themselves and their families directly into the workforce at a time when we need workers in many segments of the economy! It also avoids the current wildly inconsistent, unprincipled, and often defective asylum adjudication that now plagues Garland’s Immigration Courts, particularly in border areas and detention centers.
But, success isn’t going to happen by “magical thinking,”operating in “Stephen Miller’s world,” repeating platitudes about border crises, and reviving the past mistakes of “enforcement/deterrence only regimes.” I call BS! A “border crisis” is what happened in Poland! We’re not even remotely close to that!
It requires the Biden Administration to get the lead out, shut down the “naysayers,” work with NGOs, and get the expertise and manpower in place NOW at ports of entry and in Mexico to achieve success on May 23! But, continuing the illegal Title 42 charade/blockade is not an option that is on the table!
TIJUANA, Mexico (AP) — The United States has sharply increased the number of Ukrainians admitted to the country at the Mexican border as even more refugees fleeing the Russian invasion follow the same circuitous route.
A government recreation center in the Mexican border city of Tijuana grew to about 1,000 refugees Thursday, according to city officials. A canopy under which children played soccer only two days earlier was packed with people in rows of chairs and lined with bunk beds.
Tijuana has suddenly become a final stop for Ukrainians seeking refuge in the United States, where they are drawn by friends and families ready to host them and are convinced the U.S. will be a more suitable haven than Europe.
Word has spread rapidly on social media that a loose volunteer coalition, largely from Slavic churches in the western United States, is guiding hundreds of refugees daily from the Tijuana airport to temporary shelters, where they wait two to four days for U.S officials to admit them on humanitarian parole. In less than two weeks, volunteers worked with U.S. and Mexican officials to build a remarkably efficient and expanding network to provide food, security, transportation and shelter.
Why not begin screening, processing, and admitting these refugees now, rather than creating an unnecessary and artificial rush on May 23?
It would take only modest creativity to invoke legal refugee admission procedures and begin processing of Haitians, Central Americans, Ukrainians, and other refugees directly from camps in Mexico and other countries. That would allow immediate legal admission, thus bypassing both the overloaded Asylum Office and Garland’s dysfunctional Immigration Courts.
Refugee admissions would also facilitate Government grants and other funding for resettlement in communities across America.
Not rocket science!🚀 So, why doesn’t the Biden Administration “get it?” Was VP Harris too busy celebrating the historic, yet largely symbolic, confirmation of soon to be Justice Ketanji Brown Jackson to address the real, life or death problems of immigrants and asylum seekers of color who are being mistreated and abused by White Nationalist programs, policies and “official attitudes” at our borders?
What fun, sending Black Cameroonian refugees back to rape, torture, and possible death! We don’t need to know much asylum law or real country conditions here at EOIR. We make it up as we go along. And, Judge Garland just lets us keep on playing “refugee roulette,” our favorite game! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Nearly all of the deported people interviewed had fled Cameroon between 2017 and 2020 for reasons linked to the crisis in the Anglophone regions. Human Rights Watch research indicates that many had credible asylum claims, but due process concerns, fact-finding inaccuracies, and other issues contributed to unfair asylum decisions. Lack of impartiality by US immigration judges – who are part of the executive branch, not the independent judiciary – appeared to play a role. Nearly all of the deported Cameroonians interviewed – 35 of 41 – were assigned to judges with asylum denial rates 10 to 30 percentage points higher than the national average.
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The complete report gives a totally damning account of EOIR’s incompetence, ignorance of asylum law, poor decision making, “rigged” assignment of bad judges, and systemic bias directed against asylum seekers, primarily people of color. Although human rights conditions have continued to deteriorate in Cameroon, asylum grant rates have fluctuated dramatically depending on how the political winds at DOJ are blowing.
For example, judges denying asylum because of imaginary “improved conditions” in Cameroon falls within the realm of the absurd. No asylum expert would say that conditions have improved.
Yet, in a catastrophic ethical and legal failure, there is no BIA precedent “calling out” such grotesque errors and serving notice to the judges that it is unacceptable judicial conduct! There are hardly any recent BIA published precedents on granting asylum at all — prima facie evidence of the anti-asylum culture and institutional bias in favor of DHS Enforcement that Sessions and Barr actively cultivated and encouraged!
Even more outrageously, these same members of the “asylum deniers club” remain in their influential appellate positions under Garland! As inexplicable as it is inexcusable!
The HRF report details the wide range of dishonest devices used by EOIR to cut off valid asylum claims: bogus adverse credibility determinations; unreasonable corroboration requirements; claiming “no nexus” when the causal connection is obvious; failing to put the burden on the DHS in countrywide persecution involving the government or past persecution; bogus findings that the presence of relatives in the country negates persecution; ridiculous findings that severe harm doesn’t “rise to the level of persecution,” failure to listen to favorable evidence or rebuttal; ignoring the limitations on representation and inherent coercion involved in intentionally substandard and health threatening ICE detention, to name just some. While these corrupt methods of denying protection might be “business as usual” at EOIR “denial factories,” they have been condemned by human rights experts and many appellate courts. Yet Garland continues to act as if nothing were amiss in his “star chambers.”
This bench needs to be cleared of incompetence and anti-asylum bias and replaced with experts committed to due process and fair, impartial, and ethical applications of asylum principles. There was nothing stopping Sessions and Barr from “packing” the BIA and the trial courts with unqualified selections perceived to be willing and able to carry out their White Nationalist agenda! Likewise, there is nothing stopping Garland from “unpacking:” “cleaning house,” restoring competence, scholarly excellence, and “due process first” judging to his shattered system!
“It’s not rocket science, but ‘unpacking’ the Immigration Courts appears beyond Garland’s skill set!” “Unpacking” Photo by John Keogh Creative Commons License
All that’s missing are the will and the guts to get the job done! Perhaps that’s not unusual for yet another Dem Administration bumbling its way through immigration policy with no guiding principles, failing to connect the dots to racial justice, betraying promises to supporters, and leaving a trail of broken human lives and bodies of the innocent in its wake. But, it’s unacceptable! Totally!
“Record, what record? Here at the BIA, we don’t need no stinkin’ record to deny asylum! The assembly line would break down if we took time to look at all the evidence and research the law! It’s about ‘numbers,’ not ‘justice!’” https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Tarlishi Emmanuel-Tata, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. We GRANT the petition for review and REMAND for further consideration. … Emmanuel-Tata challenges both the BIA’s factual determinations and whether it gave his claims full and fair consideration. We begin by examining Emmanuel-Tata’s argument that the BIA failed to consider all the evidence. This argument relies on a BIA statement that the record “does not contain any country conditions evidence indicating that Anglophones are regularly subject to persecution,” and that “[t]he record does not contain any country conditions evidence indicating the type of punishment the respondent may face as a result of his criminal charges.” There is such evidence, though. … The significance of the overlooked evidence is clear. … Because the BIA erroneously found there was no record evidence about relevant country conditions, Emmanuel-Tata did not receive “meaningful consideration of the relevant substantial evidence supporting” his claims. See Abdel-Masieh, 73 F.3d at 585. We therefore reverse the BIA’s decision. We need not further consider the BIA’s factual determinations. The petition for review is GRANTED and we REMAND to the BIA for further consideration.”
[Hats off to Brian Plotts! Brian, make a motion to publish!]
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As any “immigration pro” knows, the DOJ has to work hard to lose immigration cases in the “ultra-conservative” 5th Circuit. But, even judges not very sympathetic to migrants don’t like being “played for fools” by a DOJ where “quality, integrity, and due process” definitely are “NOT job one.”
Highlighting the constant stream of bogus findings, “canned” decisions, ignored records, and chronic contemptuous sloppiness is a great way to for the NDPA to make inroads with even the most unsympathetic Circuit panels. While some Article III judges are willing to overlook the BIA’s endemic shortcomings, hiding behind the “bogus deference” doctrine, they might be less willing to “do the BIA’s dirty work for them.”
WASHINGTON — Owning a small business in Cameroon selling French products was enough to trap the young man between the English-speaking minority and French-speaking majority government in the warring West African nation.
In July 2019, he was kidnapped by armed rebels, who tortured him for months in the jungle, demanding $10,000 ransom from his family, he said. Then, shortly after they paid, government forces arrested and tortured him for another month — for “financing” the separatists.
But what shocked him most, he said, was that after he escaped through a dozen countries and claimed asylum at the U.S.-Mexico border, American officials detained him for almost a year, then threatened and assaulted him and put him in solitary confinement before deporting him back to Cameroon in late October.
“At that point, it’s like the end of the world,” he said, requesting anonymity because he is in hiding. “It’s a death plane. Even if there was a means to make that plane crash that day, we would’ve done it.”
During President Trump’s last weeks in office, Black and African asylum seekers say, the administration is ramping up deportations using assault and coercion, forcing them back to countries where they face harm, according to interviews with the immigrants, lawyers, lawmakers, advocates and a review of legal complaints by The Times.
Immigrations and Customs Enforcement and Homeland Security headquarters did not respond to requests for comment.
The allegations have shed light on a group of immigrants that has been targeted by the president’s rhetoric and his policies to restrict asylum, but that is often overlooked. Relative to Mexicans and Central Americans, asylum seekers from Africa and the Caribbean make up a small but fast-growing proportion of the more than 16,000immigrants in detention today across the United States, particularly in the for-profit prison archipelago in the American South that has proliferated under Trump.
Despite Trump’s all-out assault on asylum, explicit bias against Black asylum seekers, and border closures under the pretext of the pandemic, some 20,000 Haitians and Africans have journeyed from South America, largely on foot, to claim protection at the U.S.-Mexico border during Trump’s time in office, according to Mexico’s migration statistics.
President-elect Joe Biden has said he will end the use of for-profit immigration detention, reverse many of Trump’s policies that restrict asylum, and reform the U.S. immigration system. But Trump has left his successor with decades-long private-prison contracts; more than 400 executive actions on immigration; a record immigration court backlog of more than 1.2 million cases; and record-high asylum denial rates, reaching around 70% last month.
Since October, lawyers have filed multiple complaints with the Homeland Security Department’s Office of Civil Rights and Civil Liberties and Inspector General’s Office documenting the cases of at least 14 Cameroonian asylum seekers at four detention facilities in Louisiana and Mississippi who say ICE subjected them to coercion and physical abuse to force their deportations.
The complaints call for investigations and an immediate halt to the deportations, arguing that officials are violating U.S. and international law, including due process rights and the Convention Against Torture.
In that time, more than 100 asylum seekers also have reported ICE using or threatening force to put them on deportation flights, in particular to Haiti and West Africa, according to lawyers and calls received on a national immigration detention hotline run by the nonprofit Freedom for Immigrants.
The Times has interviewed nine asylum seekers, most from Cameroon, others from Haiti or Ethiopia, many of whom requested anonymity for fear of retaliation. Five have been deported in the last month, and three remain detained after ICE attempted to remove them in recent weeks. One Cameroonian was released Monday after roughly 20 months in immigration detention.
They include teachers, law students, mothers, fathers, a 2-year-old boy and a 3-year-old girl, who have fled corrupt governments, political persecution, gang rape, torture by security forces, assassination attempts and arbitrary detention.
For many, deportation from the United States is a death sentence.
“I came to U.S. because I need to save my life because my life is in danger,” said a high school teacher who fled Ethiopia in 2017 after being jailed and beaten for supporting an opposition political party and student protests.
The teacher claimed asylum at the San Ysidro Port of Entry on the California-Mexico border in 2018. But last month, while being held at the Adelanto ICE Processing Facility, after he refused to sign deportation papers, six ICE officers assaulted and forcibly fingerprinted him, he said, then sent him to the medical clinic.
His asylum case had been denied but was pending an appeal. Two days after the assault, he said, officers told him he’d be transferred. Instead, they took him to Los Angeles International Airport and deported him to Ethiopia, where he was immediately rearrested and now awaits a court hearing.
“ICE is something like racist because they are doing excessive force,” the teacher said. “In [a free] country I don’t expect these things.”
Many asylum seekers are well aware of Trump’s disparagement of Black immigrants. And many believe that ICE officials and detention guards share his prejudices.
As Trump leaves office, the “pattern and practice of physical and verbal coercion” by ICE officers and guards to force Black asylum seekers to sign deportation papers is worsening, according to the complaints filed to Homeland Security’s Civil Rights and Civil Liberties and Inspector General’s offices.
Beyond threats, the tactics include shackling the immigrants, stripping them naked, holding them down and choking them, resulting in injuries, according to the complaints. Officials often committed the assaults out of sight of facility cameras, and in several instances filmed the assaults themselves, the complaints state.
Immigration detention is civil, not criminal, and ICE has the discretion to release detainees at any time. Most of the asylum seekers have family in the United States, and all have exercised their right to seek protection under U.S. law — meaning that many are being detained for years even though they have U.S. sponsors and haven’t committed a crime.
Of the deportation flights to West Africa in October and November, at least a dozen on board had pending cases, according to lawyers.
In interviews with The Times, the asylum seekers said they sought protection in the United States because they believed it was the only place where they could be safe and free.
“We believe in freedom and in this country as a country that provides protection for people who are running for their lives — and instead upon arrival, for us to be imprisoned and caged?” said a Haitian mother detained with her husband and 2-year-old son at a Pennsylvania ICE facility.
Police officers in Haiti had targeted her and her husband for their involvement with the political opposition, beating and sexually assaulting her while she was pregnant, according to sworn legal statements. She miscarried before she fled.
Despite many countries shutting their borders amid the COVID-19 pandemic, ICE has recently increased the pace of deportations, including sending a flight to West Africa just days after the Nov. 3 election. In October, there were nearly 500 ICE Air Operations flights, a more than 10% increase since September, according to Witness at the Border. More than 1,300 Haitians were deported, said Guerline Jozef, president of the Haitian Bridge Alliance in California.
In recent years, Cameroonians have increasingly accounted for one of the largest groups of what U.S. officials call “extracontinental” migrants, as the conflict in Cameroon has widened.
One man, going by the initials K.S., said he fled because officials in Cameroon had asked him to work with them to capture Anglophone people. He refused; his wife and three children are from the English-speaking side.
He had been detained at the Imperial Regional Detention Facility east of San Diego for over two years when the final appeal on his asylum claim was denied — making him so depressed that he spent a week under medical observation.
He said the ICE officer assigned to his case advised him to sign paperwork agreeing to be deported. The officer said that if the Cameroonian government didn’t accept ICE’s request to take him back, as was likely, he would be released to his U.S. sponsor after 90 days.
On Oct. 6, after 97 days had passed, six guards stood by as K.S. was ordered to pack up his things to leave.
“I didn’t think about deportation,” he said. “It was the last thought on my mind. They lied to me.”
ICE officers put him on a flight to Louisiana that picked up other Cameroonian deportees and then dropped the group off at the Prairieland Detention Facility in Texas. On Oct. 13, K.S. said, he was cuffed and taken to the airport, where he boarded a flight with about 100 other African migrants.
He watched as ICE officers strapped in three men from their shoulders to their ankles to restrict their movement and covered their heads with bags, then laid them across rows of seats in the plane.
Just as the flight was about to take off, K.S. and three other men were removed and taken back to Prairieland, without explanation.
Three weeks later, on Nov. 11, K.S. was back on a deportation flight with 27 other men. One, who was known to have heart problems, began crying that his chest was burning, K.S. said, an account confirmed to The Times by another passenger.
ICE ultimately removed the man and put him in an ambulance.
In contrast to Central Americans largely fleeing a lethal combination of gang violence, corruption, poverty and climate change, many Haitians and Africans have more traditional asylum claims that, at least in theory, better fit the categories outlined by an outdated U.S. asylum system largely conceived in the post-World War II era: persecution based on race, religion, nationality, political opinion or social group.
Yet Black and African asylum seekers are less likely than other immigrants to be released on parole or bond, or to win their asylum cases — a racial disparity that has worsened under Trump, according to lawyers and government data.
From September 2019 to May 2020, comparing hundreds of release requests from detained Cubans, Venezuelans, Cameroonians and Eritreans, the non-Africans had grant rates roughly twice as high, said Mich Gonzalez, senior staff attorney at the Southern Poverty Law Center. Fewer than 4% of Cameroonian parole requests were granted.
ICE is also increasingly blanket-denying Black immigrants’ release for clearly bogus reasons, said Anne Rios, a supervising attorney in San Diego with the nonprofit Al Otro Lado.
For example, ICE rejected one request by claiming an applicant’s identity hadn’t been established, when the agency had the applicant and his identification documents in its custody, according to parole applications and denials provided by Rios and reviewed by The Times.
U.S. officials have faced more impediments to deporting Haitian and African asylum seekers due to limited diplomatic relationships with their homelands and more complicated deportation logistics exacerbated by coronavirus closures abroad.
But that hasn’t stopped them. The Trump administration has at times put enforcement before its own stated foreign policy, contradicting the State Department and U.S. law barring officials from returning people to harm or death.
Take Cameroon. Last year, the U.S. pulled back some military assistance amid reports of atrocities committed by security forces trained and supplied by the U.S. military for counterterrorism. The State Department travel advisory for Cameroon warns of “crime,” “kidnapping,” “terrorism” and “armed conflict.”
Rather than obtaining valid Cameroonian passports, ICE officials have issued Cameroonian deportees “laissez-passer” travel documents that are invalid, or even signed by individuals in the United States purporting to be Cameroonian officials, according to the October complaint.
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Read the rest of the article at the link.
I understand the incoming Biden-Harris Administration’s desire to avoid getting entangled in the muck of the overt corruption, racism, and countless crimes of the outgoing regime.
Nevertheless, I doubt that institutional racism can be eliminated, equal justice under law achieved, and racial harmony realized without dealing in some way with the many crimes against humanity committed in the name of racism, hate, and “Dred Scottification” by the regime and their cronies, toadies, and enablers at DHS, DOJ, DOS, and elsewhere in government.
Also, to state the obvious, the types of cases described by Molly and Andrea could have been rapidly granted at the Asylum Office level in a functioning system. That’s a critical first step in eliminating the largely self-created backlog in the Immigration Courts, ending counterproductive litigation by the Government, and largely “zeroing out” the unnecessary and wasteful “New American Gulag” (“NAG”) of bogus “civil” detention largely abusively applied for illegal punishment and deterrence.
Fair and rational application of immigration laws and sane policies also make for efficient, fiscally responsible government. Compare that with the current kakistocracy which has run up record deficits, created endless backlogs, and left behind far, far more problems than they solved. Indeed, never has a gang of empowered malicious incompetents showed so little ability to recognize, promote, or govern in the common good.
Due Process Forever! Complicity in Crimes Against Humanity, Never!
Owings had left Monroe decades earlier to attend a small liberal arts college in Tennessee, where she studied English and Russian. After graduation, she moved to Georgia, where she worked as a preschool teacher for a year before going to law school. During her first seven years as an immigration attorney, she fought for her clients in Atlanta’s notoriously punitive immigration courts.
“For a long time, that was the only place I saw how things worked,” she said, “so I thought it was normal for a judge to be like, ‘Fuck you.’ Because that’s how things are here.”
Owings began taking cases in more isolated parts of the state. Almost every month, she drove 150 miles south of Atlanta, deep into rural Georgia, to visit clients detained at the Stewart Detention Center in Lumpkin. Stewart had opened in 2006, a year before Owings got her license. When it opened, the facility was so remote that it didn’t have a court of its own. The Executive Office for Immigration Review (EOIR), the federal agency that oversees the nation’s immigration courts, had yet to find judges who wanted to live in Lumpkin, a rural town of fewer than 2,000 pockmarked by vacant storefronts, where there are more immigrant detainees than actual residents. While it scrambled to bring the legal system to rural Georgia, the agency came up with a high-tech solution. Since it couldn’t get judges to come to Lumpkin, it would bring the detainees to Atlanta — not physically, but through videoconference.
Owings could have fought her clients’ cases remotely, too, from Atlanta, but it was important to be with them in person. For most of a decade, she worked this way: Atlanta, Lumpkin, court, new cases, asylum granted — or, more likely, denied.
Ten years and two presidential administrations later, the virtual courtrooms Owings had fought against had expanded to her hometown. Under President Trump, a crop of new detention centers began opening up in Louisiana in 2018 and early 2019, just a few hours from Monroe. “I was mad at my state, my home state, for having allowed this to happen,” she said. Owings expanded her practice to Louisiana in spring 2019 and started flying down to Monroe and crashing at her parents’ house the night before hearings.
In Lumpkin, Owings had seen firsthand how the government used rural, isolated detention centers to warehouse immigrants out of sight, far from their families, their lawyers (if they had any), and from anyone who might care about what happened to them. She had seen how private prison companies wooed local officials, convincing them that turning vacant local jails into immigrant detention centers would reverse decades of economic stagnation. The big business of detainees would save Louisiana’s dying towns.
But Owings understood the cost of opening detention centers. “We have these small jurisdictions that bit down on a dirty nickel hard because they’re starving for money. And so they’re going to lock up a bunch of humans in these conditions,” she said. “There’s going to be civil rights violations, there’s going to be medical neglect, there’s going to be terrible things that happen, and people are going to be put into these little boxes and forgotten about so that they can be disposed of as quickly as possible and made as miserable as possible through the process.”
As Immigration and Customs Enforcement’s (ICE) network of detention centers spread across the state, Owings’ fears quickly materialized. Like the immigrants she represented in Georgia at the beginning of her career, the people imprisoned in Louisiana are kept hundreds of miles away from lawyers and advocacy organizations that could help them — and now, even from the judges who determine whether they can stay in the country.
One of those jurisdictions is Winn Parish, a rural community in northern Louisiana, an hour-and-a-half drive from Owings’ childhood home. In 2019, the local government agreed to convert a local prison into an ICE detention center. That facility, the Winn Correctional Center, is where Samuel spent four of his six months in federal custody.
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Read Gabby’s complete article at the link, including the unusual “happy ending” for “Refugee Samuel.”
What was the point of Samuel’s detention? Of course, there wasn’t any! No legitimate point anyway!
He wasn’t a danger to society, and he wasn’t a “flight risk,” particularly with Sarah Owings representing him. The real reason was to punish him for seeking legal refugee, to coerce him into giving up his claim, and also to harass Owings by making her life more difficult. Unpleasant as Immigration Court tries to be these days, representing someone in detention in the middle of nowhere can be even worse. What a waste of taxpayer money that could be used to address pressing problems!
I feel for the residents of places like Winn Parish. Certainly, if we put our heads together, we could help them come up with some type of economic development that would use their skills and work ethic, without exploiting the human misery of others. Maybe these are the types of ideas that both immigrant entrepreneurs and immigration/human rights advocates have to work on along with Americans in economic distress. Perhaps refugees like Samuel, creative, courageous folks who have had to “reinvent themselves” in a strange land could help out!
Last night, I was on a “Zoom Seminar” dealing with the lessons from the Netflix series “Immigration Nation.” One of my fellow panelists was a doctor from Cuba who had spent a lengthy time in DHS detention and been treated badly before finally being granted asylum with the help of counsel.
Nobody in the audience could fathom why their taxpayer dollars had been used to unnecessarily detain and abuse this talented individual Obviously, she was neither a security nor a flight risk. Rather, her presence in the U.S. as a recognized refugee benefits both her and our country.
We had to explain to the audience that immigration detention these days has more to do with punishment, coercion, and a race-driven White Nationalist immigration agenda than it does with any legitimate governmental purpose. The “New American Gulag” is just another par of the Trump regime’s false immigration narrative that neither Congress nor the Article III courts have bothered to critically examine.
In some ways, Sarah and Samuel might have caught a break; apparently the San Diego Immigration Judge both understood asylum and protection laws and was unafraid to go against “Billy the Bigot’s” preferred result of deny everything.Hats off to that Immigration Judge for courageously “doing the right thing” even in the face of political pressure to cut corners and railroad refugees out of the country without due process!
All to often, the highly politicized EOIR — “Home of The American Star Chamber” stocks detention center “courts” with judges whom they believe to be predisposed to the White Nationalist “deny, discourage, disparage, and deport” program. Seldom are they disappointed; at most detention center “kangaroo” courts the denial rates hover close to 100%.
Adding insult to injury, some of the worst judges, with horrible public reputations for unfair and rude treatment of asylum seekers and their attorneys, and astronomical asylum denial rates, were actually promoted by “Billy the Bigot” to his wholly owned and highly biased appellate “tribunal,” known as the BIA. Some of these unqualified judges were from the Atlanta Immigration Court, whose attitude toward refugees and their attorneys was accurately portrayed by Owingsas “so I thought it was normal for a judge to be like, ‘Fuck you.’”
Advocacy groups have made a well-documented case for Atlanta as an “asylum free zone.” Its “judges” apparently revel in that reputation. So much so, that Billy the Bigot seeks to make Atlanta the “model” for his entire unconstitutional “court system” that isn’t a “court system” in any normal sense of the word — except, perhaps, in as the term would be used in a corrupt third-world dictatorship.
Many thanks to Sarah Owings for dong this work and for doing it so well and faithfully under such difficult circumstances. You are truly an “American heroine,” Sarah!
To state the obvious, a system run in accordance with our Constitution, that honored human dignity, and that actually sought “full due process with efficiency” would have dedicated due process, practical-solution-oriented individuals like Sarah on a new, independent, Article I Immigration Bench. Additionally, the immigration appellate level is sorely hurting for judges with the necessary qualifications.
I hope that the day won’t be far off when Sarah and many of her courageous and multi-talented colleagues in the “New Due Process Army” will assume their proper roles on the Federal Bench and in the immigration policy apparatus.
The inexcusable national disgrace and abrogation of justice taking place in Atlanta, Lumpkin, Jena, Winn Parish, and many other “Immigration Star Chambers” is helping to fuel the continuing racial injustices in Minneapolis, Milwaukee, Memphis, Rochester, and numerous other locations throughout our nation.
“Dred Scottification” is all about “dehumanization of the other before the law.” The failure of the Article III Judiciary, starting with the feckless Supremes, and our inept Congress to put an end to these racist-inspired abuses in Immigration Court and elsewhere is a national tragedy of the highest and most debilitating proportions: One that is literally ripping our country apart.
It also shows why we need a new, diverse, representative, progressive Federal Judiciary with judges committed to due process, equal justice, racial justice, and social justice. We’re a long way from that now; and the existential struggles our nation is experiencing at all levels, and the scandalous inability of our institutions competently to solve problems in a constructive manner, shows why change and progress must start sooner rather than later!
JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW
9th Cir. to BIA: Hiding in Fear is Not Reasonable Relocation
In, Akosung v. Barr a young woman from Cameroon had been sentenced against her will to marry the village chieftain, or Fon, in order to settle a family debt. Not wishing to suffer this fate, she first hid locally. After her family’s assets and funds were seized, their crops were destroyed, and they were barred from attending social activities as punishment, she fled town.
Akosung remained a fugitive in Cameroon for over a year. A relative who harbored her in another city for most of that time asked her to leave out of fear of repercussions. After relocating again, she barely evaded capture. The police declined to get involved. Akosung eventually managed to cross into Nigeria, and from there, made her way to the U.S.
After an Immigration Judge denied asylum, the BIA dismissed Akosung’s appeal on two grounds. First, the Board determined that she had not shown harm on account of her membership in a particular social group consisting of “women resistant to forced marriage proposals.” More surprisingly, the Board concluded that, in spite of the above tale of near capture and narrow escape, Akosung could somehow safely relocate to another part of Cameroon.
Asylum will be denied to one who could reasonably relocate within their country. Where a dispute is so localized that it can be ended with a move to the next street, neighborhood, or town, the law sees no reason for international intervention.
However, federal regulations that are binding on immigration judges, asylum officers, and the BIA, recognize the complexity of determining whether such relocation, if possible, would be considered reasonable. Per the regulation:
(3) Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of this section, adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate.
That’s quite a lot to consider. And in saying that the listed factors may or may not be relevant or determinative, the judge or asylum officer is being told to dive in deep in analyzing what factors exist, and how much they should matter.
Furthermore, the regulations state that where the persecutor is the government, or where the applicant has already suffered persecution, there is a legal presumption that such internal relocation is not reasonable. It’s not clear from the decision whether the issue was considered, but as the facts state that the applicant’s town was ruled by a council, that it was said council that ordered her marriage to the Fon, and that the police ceded jurisdiction over the matter to the council, a strong argument seems to exist that the persecutor in this case is the government.
Not surprisingly, such a detailed, in depth, thoughtful analysis that cedes so much authority to the immigration judge runs contrary to EOIR Director James McHenry’s goal of assembly line, rubber stamp adjudication. Of course, his agency’s recently proposed regulations aimed at destroying asylum directly attack this rule, and seek to replace it with a much simpler one in which the judges would draw a negative inference from the fact that the asylum seeker had managed to reach the U.S. It’s not clear why reaching the U.S. to seek asylum would demonstrate the reasonableness of remaining in the country in which one is being targeted. Perhaps McHenry seeks to imbue an entirely new meaning to the lyric from Frank Sinatra’s ode to my hometown: “If I can make it there, I’ll make it anywhere?”
In Akosung, the Board treated the regulation as if McHenry’s changes were already in effect. It simply saw that it could easily rubber-stamp the IJ’s denial by checking the “internal relocation” box, and certainly did not bother to undertake the analysis that the actual binding regulation requires.
Fortunately, the Ninth Circuit called foul. Noting that the regulation requires a conclusion that, after considering all of the listed factors, it would be reasonable to expect the applicant to relocate, the court noted that “it hardly seems ‘reasonable to expect’ one facing persecution or torture to become a fugitive and live in hiding.”
The court added some additional statements of the obvious: first, that “‘relocate’ most naturally refers to resettlement or a change of residence, not the unstable situation of one who must always be ready to flee.” And also: “living in hiding does little to establish that a person is able to “avoid future persecution.” To the contrary, it establishes the opposite; hence, the hiding.
The Ninth Circuit also found error in the Board’s social distinction determination. The Board upheld the immigration judge’s questioning of “how anyone in society” would be able to recognize someone “as an individual who has declined a marriage proposal from a fon.”
The court first noted that the statement seemed to erroneously apply the “optical visibility” approach to social distinction (i.e. that the group member should be recognizable on sight to members of society), an approach the Board disavowed in Matter of M-E-V-G-. But the court added that even if the Board here meant that society in Cameroon would not recognize the group as distinct, Akosung’s experience, and that of another woman who she described as being successfully hunted down after also attempting to evade marriage to the Fon, demonstrate otherwise.
The court then quoted Matter of M-E-V-G- as requiring the group to be viewed as distinct “within the society in question,” adding that “the Board should have taken that into account.”
The court did not discuss further how “the society in question” should be defined. And the court’s citation was to page 237 of M-E-V-G-. But as I have noted when lecturing on the topic, the Board on page 243 of the same decision clarified that “persecution limited to a remote region of a country may invite an inquiry into a more limited subset of the country’s society, such as in Matter of Kasinga…where we considered a particular social group within a tribe.”
Later, on page 246 of M-E-V-G-, the Board stated that in Matter of Kasinga, “people in the Tchamba-Kunsuntu tribe” would view members of the particular social group in that case to be “a discrete and distinct group that was set apart in a meaningful and significant way from the rest of society.” The Board then stated its conclusion that the social group in Kasinga “was perceived as socially distinct within the society in question.”
Attorneys should cite to Akosung (along with M-E-V-G-) in arguing that the “society in question” to be considered for social distinction purposes is the society their clients inhabit.
Copyright 2020, Jeffrey S. Chase. All rights reserved. Reprinted With Permission.
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Wow! Talk about absurdly unfair and totally biased!
For a “real judge” who is committed to due process and understands asylum law, this should have been a 30-minute hearing resulting in a grant of asylum! Instead two levels of EOIR “judges” got this grotesquely wrong in an attempt to deny asylum and return a refugee to harm or death when she clearly is entitled to protection.Because, that’s what their political “handlers” at DOJ and its wholly owned subsidiary EOIR want from their weaponized parody of a “court system.”
These aren’t “legal errors” or “legitimate differences of opinion.” No, they are evidence of “malicious incompetence” – deep intellectual dishonesty and corruption on the part of a fraudulent “tribunals” that under this regime have ceased to serve any legitimate function.
And, that also doesn’t say much good about Article III Courts who see these clear errors time and again, recognize them, yet fail to take the strong, systemic corrective action necessary to stop the BIA’s gross abuses of our legal system and humanity and to hold Billy the Bigot and his subordinate toadies accountable for their misfeasance!That’s a denial of due process by the Article IIIs; it means that only those with the wherewithal to get good representation and pursue appeals beyond EOIR can get anything resembling “justice.” I call that dereliction of duty by the Article IIIs!
Think about this! If folks don’t immediately leave after suffering persecution, then corrupt EOIR adjudicators will sometimes find them not to be in “real danger” or use it as specious “evidence” that the claim isn’t “credible.” But, if they do leave, then that nonsensically shows they could somehow “relocate.”
So in typical EOIR Kangaroo Court fashion, the refugee loses no matter what the facts! I guess that reinforces the “don’t come because we won’t protect you no matter” message that the “New EOIR” is there to deliver! The real issue, however, is why EOIR is still in existence and threatening both our legal system and those seeking justice in America?
Systemic racial injustice in America is no mystery!It’s fueled by Article III Courts that fail to intervene to stop the Trump regime’s racist assault on migrants of all types! Trump, Stephen Miller, “Wolfman” (actually illegally serving at DHS) make no secret of their racist agenda. But, life-tenured Article III Justices and Judges literally keep letting them get away with murder!
Due Process Forever! EOIR’s corrupt “Kangaroo Courts,” never!
To prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied based on an adverse credibility finding in the underlying proceedings, the respondent must either overcome the prior determination or show that the new claim is independent of the evidence that was found to be not credible.
Just what this totally dysfunctional system needs: More ideas on how to deny asylum! The only question: Will Respondents lose every case in Volume 18? Don’t bet against it!
4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
Atemnkeng v. Barr, 4th Cir. Jan. 24, 2020, published
PANEL: GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
OPINION BY: Chief Judge Gregory
KEY QUOTE:
Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in
anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.
On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.
In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is
meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2
further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.
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When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
By Paul Wickham Schmidt
“Courtside” Exclusive
Jan. 1, 2020
Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!
After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?
Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.
Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.
Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.
When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.
Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.
Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.
What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.
Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.
The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.
And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.
It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?
Gabriel Thompson & Leonardo Santamaria in Topic Magazine:
“Your Judge Is Your Destiny”
Agnelis L. Reese has presided over more than 200 hearings during the past five years as an immigration judge. Unique among her peers, she has rejected every single case.
The Supreme Court set forth a generous view of asylum law — even a 10% chance of persecution is enough to qualify — in the 1987 case Cardoza-Fonseca v. INS, discussed in this article. Following the Supreme Court’s directive, the BIA in Matter of Mogharrabi adopted a generous “reasonable person” standard for asylum eligibility, assuring everyone that asylum could be granted “even where persecution is significantly less” than probable.
However, judges like Judge Agnelis Reese have a different idea: treat asylum as a “loophole” and abuse your power over individuals’ lives by looking for bogus ways to deny protection rather than grant it. As pointed out by this article, one of the “best” of these “legal gimmicks” is simply arbitrarily to decide not to believe anyone’s claim or to “nit-pick” memories in a way that would establish Judge Reese and others like her as “inherently not credible” if applied to them. Much like the Trump Administration as a whole.
However, this is about more than just one ill-qualified asylum judge. For 22 years, Judge Reese was allowed to abuse asylum seekers with her one-sided decision making. That spanned two entire Administrations, one of each party, and two partial ones. Yet the BIA, EOIR, the DOJ, and life-tenured Article III Court of Appeals Judges failed to intervene to force Judge Reese, and other like her, to either apply asylum law in the fair, reasonable, and generous manner it was intended or to find other jobs.
There are “other Judge Reeses” out there today screwing the most vulnerable among us with dishonest interpretations of asylum law and facts, particularly in the area of credibility and “nexus” to a “protected ground.” Now, however, instead of being “outliers,” they are the kinds of “shining example” judges who implement the Administration’s White Nationalist false narrative that all asylum seekers from all countries are “gaming the system” and ought to be rejected en masse, without fair and impartial adjudications, in some cases amounting to literately “death sentences” without anything approaching due process.
All this is going on right under the noses of life-tenured Article III Judges who are supposed to be enforcing Due Process and fundamental fairness by insuring that the Immigration Court system provides fair and impartial adjudications (it doesn’t), that the generous criteria set forth in INS v. Cardoza-Fonseca and Matter of Mogharrabi are not just given “lip service” but are actually applied in every case (they aren’t), that credibility determinations are based on the record as a whole and all relevant factors (they aren’t), and that “mixed motive” for acts of persecution is properly considered and applied (it isn’t).
Of course, Congress and to some extent the voters are to blame for the current disgraceful parody of justice in our Immigration Courts. But, careers like that of Judge Reese are proof that the Article III Courts are also failing to live up to their statutory, constitutional, and human obligations and thus have become part of the problem, rather than part of the solution.
I can only hope that some future legal historian will analyze in detail, naming names, the failure of the Article III Courts, up to and including the Supremes, to perform their functions with integrity and thereby to have prevented the legal, constitutional, and human tragedy and mockery of justice taking place every day in our broken Immigration Courts.
Unqualified, yet empowered, judges like Reese are a symptom, rather than the cause of, that broken system.
Just yesterday, four distinguished legal organizations sent a joint letter to Congress calling for the establishment of an independent U.S. Immigration Court in view of the demonstrated catastrophic failure of the current system to provide Due Process to asylum seekers and other migrants:
ABA signs joint letter to Congress on establishing an independent immigration court system
WASHINGTON, D.C., JULY 9, 2019 —The American Bar Association has joined with three other legal organizations to call on Congress to establish a separate immigration court system that is independent of the U.S. Department of Justice.
ABA President Bob Carlson, along with the presidents of the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges, will send a joint letter to Congress on July 11 stating that immigration courts “cannot meet the standards which justice demands” because they are not truly independent. This issue is particularly crucial as immigration courts struggle with crisis-level backlogs of almost 900,000 cases.
Under the current arrangement, immigration courts are part of the U.S. Department of Justice, and the judges in those courts are answerable to the U.S. Attorney General, who is also the nation’s chief prosecutor.
In their joint letter to Congress, the four organizations note that this inherent conflict of interest means that immigration judges are “particularly vulnerable to political pressure and interference.” In addition to the structural issues, the letter said that problems have “resulted in a severe lack of public confidence in the system’s capacity to deliver just and fair decisions in a timely manner.”
The lack of independence in the immigration court system was also addressed in the ABA’s recent updated report, “Reforming the Immigration System.” In the report, the organization urged removing the immigration courts from DOJ to ensure they are given the independence they need to be fair, impartial arbiters.
A telephone media briefing on the letter will be held Thursday, July 11, at 1pm ET/10am PT immediately following submission of the letter to Congress.
Briefing speakers
· Wendy Wayne, Chair, American Bar Association Commission on Immigration
· Jeremy McKinney, Second Vice President, American Immigration Lawyers Association
· Hon. Denise Noonan Slavin, former Immigration Judge and President Emeritus of the National Association of Immigration Judges
· Elizabeth Stevens, Chair, Federal Bar Association Immigration Law Section
· Greg Chen, Director of Government Relations, American Immigration Lawyers Association (Moderator)
Contact twiseman@aila.org to receive dial-in information and the embargoed letter.
