"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.
What kind of “judges” would “defy” the evidence of record to wrongfully deny asylum? https://www.flickr.com/photos/rasputin243/ Creative Commons License
Read the 3rd Circuit’s (unfortunately) unpublished decision here:
The IJ credited Bimpong’s testimony, and the BIA did not disturb this finding. Yet the BIA concluded that Bimpong’s persecution was a personal land dispute that lacked any nexus to his membership in the Ashanti tribe. In doing so, the BIA deferred to the IJ’s conclusion that “the record is devoid of any evidence indicating that the [Enzema] Tribe targeted the applicant because of membership in the Ashanti Tribe.” AR 97 (emphasis added). That conclusion defies the record, which is replete with evidence that Bimpong’s tribal affiliation was a central reason for his persecution. See, e.g., AR 157, 162-63, 167–68, 185, 596, 598. For example, Bimpong testified that members of
the Enzema “did not want the land that [he] possessed to be owned by non-members of 4
the Enzema tribe,” AR 596, and that he “was a target of persecution because of [an] intertribal dispute between the Enzema tribe and Ashanti tribe.” AR 598.
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Typical BIA BS prejudged, form denial “boilerplate.” “Devoid of evidence” — gimmie a break! We tried (obviously unsuccessfully) to eliminate this type of non-analytical nonsense several decades ago. It’s indicative of a totally broken system that is unfair and biased against migrants! Why is Garland allowing this continuing systemic injustice?
Demand that Garland replace his inept, unprofessional, unconstitutional, “Trump holdover” BIA with real judges who are experts in immigration, asylum, human rights, and fully committed to due process and fundamental fairness!
To quote my good friend and Round Table 🛡 colleague, Hon. “Sir Jeffrey” Chase:
At the IJ level, the ACIJs have to be charged with determining if the IJ actually doesn’t know the law, or if they are choosing not to follow it. Of course, you need ACIJs who actually know immigration law, which isn’t always the case anymore. If it’s the former, you schedule additional training; if it’s the latter, they may need to suspend or remove the IJ. That should be a priority for the next Chief IJ.
But why isn’t this being caught at the BIA level? They continue to act as a rubber stamp. There have been a few cases just in the past couple of weeks where the errors were really major and apparent.
A BIA that would “rubber stamp” denials without question or meaningful analysis so that OIL could then argue “deference” to railroad refugees and other individuals entitled to relief out of the country is precisely what Barr and Sessions intended to create. In other words, a “parody of justice” that would carry out the White Nationalist restrictionist agenda without giving it any thought. And, it’s no coincidence that this unconstitutional agenda falls hardest on the backs of asylum seekers and other migrants of color. It also serves to reinforce the vile concept that individuals of color in the U.S. are not equal under the law.
The real question here is why Garland hasn’t effectively changed the system by bringing in real judges who are experts in immigration and human rights and who would be fair to all coming before his Immigration Courts regardless of race or status? “Gradual change” is unacceptable when individuals (and their conscientious representatives) are being subjected to deadly quasi-judicial incompetence on a daily basis. Tell Garland you’ve had enough!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
PANEL: HARTZ, PHILLIPS, and CARSON, Circuit Judges.
OPINION BY: Judge HARTZ
KEY QUOTE:
On this record we think it was unreasonable for the BIA and the IJ to decide that the government successfully rebutted the presumption that Petitioner has a well-founded fear of future persecution in Ghana. Their finding that Petitioner could safely relocate within Ghana is not supported by substantial evidence. See Arboleda v. U.S. Atty. Gen., 434 F.3d 1220, 1226 (11th Cir. 2006) (concluding that relocation “would not successfully shield [an asylum applicant from] persecution” because, although the applicant “relocated from his farm . . . to the capital city,” “the [persecutors] continued to threaten [the applicant] and his family . . . , [including through] frequent notes and telephone calls detailing the family’s activities and threatening them with death,” and by “burning down [the applicant’s] farm house”).
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Yet another in the steady stream of documented failures of basic asylum analysis — the X’s and O’s — by a supposedly “expert” tribunal that is anything but!
This decision would be an outstanding “teaching tool” for instructing Immigration Judges on the proper analysis of a “reasonably available internal alternative.” The word “reasonable” is often “read out” of the analysis by EOIR judges in their rush to find “any reason to deny” claims to please their nativist political handlers.
In my more than two decades of experience at both the trial and appellate levels of the Immigration Judiciary, I observed that it is very difficult for DHS to properly rebut the presumption of future persecution by showing “that there is a specific area of the country where the risk of persecution to the respondent falls below the well-founded fear level,” as accurately described by the 10th Circuit. Indeed, it appears that many EOIR Judges lack the skills and training necessary to grant asylum with cogent analysis that would cut off many of the semi-frivolous appeals that ICE now takes. This is truly a “judiciary in shambles” under current grossly defective leadership.
I daresay that if all Immigration Judges held the DHS to their legal burden under this standard, the presumption would seldom be rebutted, in either asylum or withholding cases. But, the lack of real asylum expertise at today’s “dumbed down” EOIR and the clear “any reason to deny and deport” message sent by corrupt regime politicos to “their captive judiciary” undoubtedly results in numerous miscarriages of justice and wrongful removals.
Note that the respondent in this case was actually removed pending appeal! Had the case been handled properly in June 2017, the respondent would have been granted asylum, be a green card holder, and on his way to achieving citizenship. Instead, Professor Hong has to hope that she can get him back to the U.S. while he’s still alive!
The costs of EOIR’s deficient “judging” and unethical “weaponization” go far beyond what meets the eye. Someday, historians and sociologists will uncover and document the true human and moral costs of this disgraceful period in American history when we let grossly unqualified and immoral leaders and their accomplices lead us down the path to inhumanity and the abuse of the rule of law.
Unnecessary escapades like this, where cases that should be granted at “first instance review” instead linger in the system, moving from level to level and back again, for years, without proper resolution, make it easy to understand why EOIR builds “artificial backlog” while failing to provide basic justice. It also shows why the solution is “better judges” at EOIR and more prosecutorial discipline at ICE, rather than just shoving yet more additional judges into a broken, dysfunctional, and intentionally inefficient system that has been run into the ground by “malicious incompetents” over the past four years. NDPA expertise at EOIR and DHS are the answers!
Perhaps the “new EOIR” should hire Professor Hong to provide some real expert training on asylum law. Or, better yet, appoint her to an Appellate Judgeship at the BIA where she can lead a “renaissance of competence” in due process and fair asylum adjudication at EOIR and “teach by example!”
Or, even better, given her outstanding credentials, practical litigation experience, scholarship, courage, and proven leadership, appoint her to an Article III Judgeship where she can help improve the performance of the entire Federal Judiciary on what is one of the key issues in the fight to achieve social justice for all in America.
We need some new faces and better “practical scholarship” at ALL levels of the Federal Judiciary, from the “retail level” of the Immigration Courts to the Supremes. Better Judges for a Better America for all! Biden-Harris Administration take note!
Thanks, Professor Hong to you and your dedicated“crew” @ BC Law for all you do for the NDPA and for American Justice! You are making a difference!
In addition to Professor Hong’s stellar efforts, I am also reminded by my good friend, and another NDPA Superstar 🌟 Michelle Mendez @ CLINIC, of the key “behind the scenes” role played by the CLINIC BIA Pro Bono Project . Brad Jenkins and Rachel Naggar helped Professor Hong prepare for oral argument. (In the “small world” category, Brad did a “textbook presentation” of an asylum case before me in Arlington while he was serving as an Accredited Representative and a fellow at CAIR. I only found out later that he was a “ringer” on his way to Harvard Law and a distinguished career in social justice!) Additionally, Tania Linares Garcia (from NIJC) was part of the “team of experts” advising Professor Hong.
This is just another example of the great teamwork and mutural support that is the hallmark of the NDPA and the pro bono immigration/human rights community. As those who have had me for a teacher at Georgetown Law or have heard me speak know, I always “preach five things:” fairness, scholarship, timeliness, respect, and teamwork. Those were once “what EOIR was suppposed to be about” before the precipitous decline and total loss of values.
But, if the Biden-Harris Team takes bold and decisive action to eliminate the current kakistrocracy and replace it with “NDPA pros,” the vision of “through teamwork and innovation becoming the world’s best tribunals guaranteeing fairness and due process for all” can become a reality! Things don’t have to be the way they are now at EOIR!
