Category: El Salvador

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

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

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

OPINION BY:  Chief Judge Gregory

KEY QUOTE:

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

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

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

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

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

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

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Read the complete decision at the above link.

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

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

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

We need an independent Article I Immigration Court!

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

PWS

09-18-17

 

 

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HON. JEFFREY CHASE: Stripped By Ashcroft Of The Appellate Judges Who Understood Asylum Law & Stood Up For The Rights Of Refugees, An Emasculated BIA (With No Meaningful Deliberation Or Dissent) Intentionally Misconstrued The “Particular Social Group” Category To Screw Asylum Seekers! — READ MY LATEST “MINI-ESSAY” –“ARBITRARY AND CAPRICIOUS”  — How The BIA Intentionally Misconstrued Asylum Law To Deny Particular Social Group Protection, While The Obama Administration Turned Its Back On Due Process For Refugees!

https://www.jeffreyschase.com/blog/2017/9/14/particular-social-group-errors-in-the-bias-post-acosta-analysis

Jeffrey writes:

Particular Social Group: Errors in the BIA’s Post-Acosta Analysis

In 2006, the Board of Immigration Appeals published its decision in Matter of C-A-, the first in a line of cases creating significant restrictions on what constitutes a cognizable particular social group in claims for asylum. It is worth noting that three years earlier, then Attorney General John Ashcroft purged the BIA of its five most liberal members; two other Board members who clearly would have been removed as well left just prior to the purge. Therefore, the ensuing line of BIA precedents addressing particular social group issues were something of a one-sided affair, with no liberal voices to temper or dissent from the majority.

 

Back in 1985, the Board decided Matter of Acosta, in which it set forth the applicable standard for particular social group determinations.  Not surprisingly, particular social group has proven more difficult for courts to interpret than the other four grounds of race, religion, nationality, and political opinion.  This is because one doesn’t start out asking the question “what is a race?” or “what is a religion?”  Those terms are generally understood.  Not so with particular social group, which as I learned it, was a last-minute creation designed to cover those clearly in need of refugee protection who aren’t covered by the other four grounds.  In Acosta, the Board had to decide how broadly the “PSG” category should be interpreted.  In response to evidence that the drafters of the 1951 Convention considered the ground of particular social group “to be of broader application than the combined notions of racial, ethnic, and religious group,” the Board applied the doctrine of ejusdem generis to conclude that a particular social group, like the four other categories it is grouped with, should be defined by characteristics that are immutable either because its members are unable to change them (like race and nationality), or because they should not, as a matter of conscience, be required to change them (like religion or political opinion).

The Acosta formulation was fair, and worked perfectly well for 21 years.  It was consistent with the way particular social group was being interpreted and applied internationally, and was in no need of modification.  Yet, the post-purge Board added two additional hurdles to particular social group determination: social distinction (previously called social visibility) and particularity.  As discussed below, the result-oriented line of decisions are legally flawed.

Matter of C-A-’s “social visibility” analysis contains at least three errors.   First, as Prof. Karen Musalo, Director of the Center for Gender and Refugee Studies (CGRS) at the University of California – Hastings Law School in San Francisco has pointed out, although the Board in Matter of C-A- cited to the 2002 UNHCR Guidelines on Particular Social Groups as a basis for adding the social distinction requirement, there is a significant difference between the Board’s holding and the UNHCR Guidelines.  The Guidelines at para. 11 define particular social group as “a group of persons who share a common characteristic other than their risk of being persecuted OR  who are perceived as a group by society.”  Note the use of “or.”  “Or” was intended to expand the group of those who satisfy for PSG status, by including both those who share a common characteristic  OR possess what the Board now calls social distinction.  However, the Board changed the “or” to an “and,” which has the opposite effect of significantly narrowing those who can establish a cognizable PSG by requiring both a shared characteristic and social distinction.

Secondly, the Board found that the proposed group of confidential informants lacked social “visibility” (as it then called social distinction) because informants, by the nature of their conduct, are “generally out of the public view,” and “in the normal course of events…remain unknown and undiscovered.”  However, this is irrelevant to whether the group itself is perceived by society to be distinct.  For example, “Russian spies” by the nature of their conduct, seek to remain unknown, undiscovered, and out of the public eye.  However, the group is often in the news, and is the subject of a popular TV show. It has served as the basis for characters in countless novels and films for decades, and has inspired the passage of anti-espionage laws.  The Board thus erred in apparently confusing the “singled out” requirement of the individual asylum applicant with the “social distinction” requirement of the proposed group.

Thirdly, the Board in C-A- stated that visibility of a group of confidential informants “is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members.”  In that case, the cartel members were the persecutors.  However, the Board has claimed that it is the perception of society, and not the persecutors, that determines social distinction.

The particularity requirement is also problematic.  The element requires the social group to be defined by characteristics that provide a clear benchmark for determining inclusion.  The Board requires the terms used to define the group to have “commonly accepted definitions in the society in which the group is a part;” and “[t]he group must also be discrete, and have definable boundaries–it must not be amorphous, overbroad, diffuse, or subjective.”  See Matter of W-G-R-, 26 I&N Dec. 208, 214 (BIA 2014); Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007) (rejecting the proposed group as “too amorphous…to provide an adequate benchmark for determining group membership”).

However, in applying the new requirement of particularity to particular social group determinations only, the Board violated the doctrine of ejusdem generis that it had invoked in Acosta.  This is significant, as determinations under the other four protected categories would not necessarily stand up to the particularity determination.  In finding the proposed group of “former members of the MS-13 gang in El Salvador who have renounced their gang membership” to lack particularity, the Board stated that the proposed group “could include persons of any age, sex, or background.”  Matter of W-G-R-, 26 I&N Dec. 208, 221 (BIA 2014).  Of course, race, religion, and nationality will always include persons of any age, sex, or background; and political opinion could also draw from as wide a range of the population.

In a claim of persecution on account of religion, would the Jewish religion, for example, withstand the particularity requirement?  There is a strong chance that such group would be found too amorphous to provide an adequate benchmark for inclusion.  For example, a 2013 study by the Pew Research Center found that 14 percent of American Jews stated that they were raising their children “partially Jewish.”  Do “partially Jewish” claimants merit inclusion in the group?  What about those who only attend synagogue once a year, on Yom Kippur?  Or those who consider themselves culturally Jewish, but don’t observe the religion?  Or those with only a Jewish father (who would therefore not be considered Jewish under traditional Jewish law, but would be considered Jewish in the more liberal Reform branch of the religion)?  Where is the benchmark for inclusion?

Looking to the other asylum categories, is one said to possess a political opinion because she votes once every four years for candidates of a particular party, or because she has canvassed for a party’s candidates, given speeches at rallies, or run for office herself?  In this time of multiculturalism, where individuals of mixed race or ethnicity may choose to identify with a particular race or nationality from among two or more choices, would those categories also be found too amorphous?

In addition to the above shortcomings, attorneys have pointed out that particularity and social distinction often work at odds with each other.  Groups that rank high on society’s radar are usually not defined with the type of specific parameters for inclusion, and would therefore be dismissed as too “amorphous.”  Conversely, groups defined with the exacting precision demanded of the particularity requirement tend to be too cumbersome to register in the zeitgeist.  As an example, the term “soccer moms” became popular in American society several presidential elections ago, when “winning the soccer mom vote” was deemed a significant goal.  So while the term “soccer moms” clearly possessed social distinction, it would undoubtedly be found too amorphous to satisfy the particularity requirement.  However, “married middle-class suburban women between the ages of 32 and 47, who spend a significant amount of time driving their school-aged children to multiple after-school activities, which may or may not include soccer” might be particular enough, but will not grab public attention to the degree required to qualify as social distinction.

In spite of the above shortcomings, the federal circuit courts have largely accorded deference to the Board’s flawed interpretation.  Although immigration judges are bound by the Board’s holdings, practitioners may raise the above issues in order to create a record for eventual review by the circuit courts.  The Seventh and Third Circuits have rejected the particularity requirement for different reasons than those stated above.  As I am not aware of any circuit court addressing the issue of whether religion or any other protected ground would stand up to the particularity requirement, I present it as an argument worth pursuing.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.”

Republished with permission.

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“ARBITRARY AND CAPRICIOUS”  — How The BIA Intentionally Misconstrued Asylum Law To Deny Particular Social Group Protection, While The Obama Administration Turned Its Back On Due Process For Refugees!

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

The original Acosta decision was also wrongly decided on the merits. Of course most “occupational groups” have characteristics that are fundamental to their identity and are, therefore, properly classified as PSGs for asylum and withholding of removal purposes under the INA!

Taxi drivers in San Salvador were clearly a well-recognized tightly-knit group who were identified as such by the public, the Government, and the guerrillas and weren’t lightly going to switch occupations. That’s why they were targeted by both sides!

The result in Acosta was also completely nonsensical from a policy standpoint. The BIA’s “bottom line” was that taxi drivers in San Salvador who feared the guerrillas could either quit their jobs en masse or participate in a transportation strike called by the guerrillas. But, either of those actions would have crippled the Salvadoran Government which the U.S. was supporting during the guerrilla war! How stupid can you get! But, when categorically denying asylum to large groups of Central American refugees, there’s no limit to what captive adjudicators who want to hang on to their jobs will do to avoid granting protection!

Would you tell a New York cabbie that his or her occupation isn’t “fundamental” to his or her identity? I certainly wouldn’t do it while sitting in his or her back seat. How many yarns, stories, and jokes have you heard with the phrase “like a New York cabbie?” There are even movies glorifying or vilifying the occupation!

How about American truck drivers? They have their own culture, lingo, and even restaurants, gas stations, and stores. Next time you walk into a Pilot Truck Stop along the Interstate, see if you can tell the “pros” from the “amateur divers” like me. Then go up to one of those “pros” and tell him or her that he or she could just as well make a living  as a checkout clerk or a computer programmer! Or, walk into the “Reserved for Professional Drivers” section, take a seat, and see how long you last. I really wouldn’t try either of the foregoing unless you have very good hospitalization insurance.

Want to bet that being a lawyer or a judge isn’t fundamental to one’s identity — just ask a non-lawyer, non-judge spouse or anyone whose ever had to attend a social function with with one of us? My wife Cathy can usually pick the lawyers out in a room even without introductions!  They “dress, act, and speak” like lawyers!

I might also add that the identity of being a BIA Appellate Judge is so “fundamental” to some of my former colleagues’ identity that they were willing to put forth a totally disingenuous interpretation of the U.N. Guidelines and blow off both fairness and due process for vulnerable asylum seekers (the BIA’s sole functions) to retain their jobs as Appellate Judges in the Bush and Obama Administrations, which were generally actively hostile or clearly indifferent to the rights of refugees. Nobody had the guts to stand up for a correct intrerpretation of the Refugee Convention which would have saved many lives and made the whole immigration system fairer and easier to administer in the long run.

There actually was a U.S. Circuit Judge way out in the 8th Circuit, of all places, who saw clearly the BIA’s disingenuous approach and “called” them on it. The case is Gaitan v. Holder, 671 F.3d 678, 682-86 (8th Cir. 2012) (Bye, Circuit Judge, concurring), the concurring Judge was Judge Bye, and I reproduce the concurring opinion in full from “Legale” because Judge Bye is so “spot on” and, regrettably, so few people paid attention to his criticism:

BYE, Circuit Judge, concurring.

Based upon our recent decisions in Constanza v. Holder, 647 F.3d 749 (8th Cir. 2011) (per curiam) and Ortiz-Puentes v. Holder, 662 F.3d 481 (8th Cir.2011), I concur in the result reached by the majority. I do so reluctantly, however, and write separately to express my disagreement with our circuit’s as-a-matter-of-course adoption of “social visibility” and “particularity” as requirements for establishing “membership in a particular social group.” See 8 U.S.C. § 1101(a)(42)(A). While both decisions cited with approval the BIA’s new approach to defining “particular social group,” neither had before it the issue raised in this appeal: did the BIA act arbitrarily and capriciously in adding the requirements of “social visibility” and “particularity” to its definition of “particular social group.” While I am convinced it did, I am nonetheless bound by circuit precedent and therefore concur in the result.

Our circuit only recently addressed the BIA’s new approach to defining “particular social group.” While both Constanza and Ortiz-Puentes grafted the requirements of “social visibility” and “particularity” to petitioners’ social groups claims, neither panel offered any explanation as to why the addition of these new requirements—which are very clearly inconsistent with the BIA’s prior decisions—should not be deemed arbitrary and capricious. Neither panel inquired as to whether the BIA had provided a good reason, or any reason at all, for departing from established precedent. Neither asked if the BIA’s new approach to defining “particular social group” amounted to an arbitrary and capricious change from agency practice. Instead, we simply adopted the new approach, as a matter of course, offering no substantial reason ourselves for this shift in direction. As a result, I fear we have chosen the wrong direction.

In order to understand why the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious, some background information is necessary. The BIA first attempted to define “particular social group” in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A.1985). In Acosta, the BIA relied on the canon of ejusdem generis to construe “membership in a particular social group” in a way which most closely resembles the definition of the other four grounds of persecution under the Immigration and Nationality Act (Act): race, religion, nationality, and political opinion. Id. at 233. After deducing commonalities between the five bases of persecution cognizable under the Act, the BIA defined “particular social group” as a “group of persons all of whom share a common, immutable characteristic,”

[671 F.3d 683]

 

which may be either “an innate one such as sex, color, or kinship ties” or a “shared past experience such as former military leadership or land ownership.” Id. In all such circumstances, BIA explained, the characteristic uniting the group must be “one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. Because an occupation is not something individuals are either unable to change or, as a matter of conscience, should not be required to change, the BIA rejected an asylum claim by a taxi driver in the city of San Salvador premised on his membership in a taxi cooperative whose members were targeted by the guerillas for having refused to participate in guerrilla-sponsored work stoppages. Id. at 234.

During the next twenty years, the BIA applied the immutability definition of Acosta in a variety of contexts. The BIA’s published decisions recognized as a “particular social group” former members of Salvadorian national police (who could not change their past experience of serving in the police), see In re Fuentes, 19 I. & N. Dec. 658 (B.I.A.1988); members of the Marehan subclan of the Darood clan in Somalia (who shared kinship ties and linguistic commonalities), see In re H-, 21 I. & N. Dec. 337 (B.I.A. 1996); Filipinos of mixed Filipino-Chinese ancestry (because their traits were immutable)], see In re V-T-S-,21 I. & N. Dec. 792 (B.I.A.1997); young women of a certain Togo tribe who have not yet had a female genital mutilation (FGM) and who opposed the practice on moral grounds (because the “characteristic of having intact genitalia is one that is so fundamental to the individual identity of a young woman that she should not be required to change it”), see In re Kasinga, 21 I. & N. Dec. 357 (B.I.A.1996); and homosexuals in Cuba (based on the Board’s recognition of homosexuality as an immutable characteristic), see In re Toboso-Alfonso,20 I. & N. Dec. 819, 822 (B.I.A.1990). With some variations, all circuits adopted the Acostadefinition of “particular social group.” See generally Fatma E. Marouf, The Emerging Importance of “Social Visibility” in Defining a “Particular Social Group” and Its Potential Impact on Asylum Claims Related to Sexual Orientation and Gender, 27 Yale L. & Pol’y Rev. 47, 53 & n. 24 (2008) (stating federal courts “generally have followed Acosta” and cataloging relevant precedents) (hereinafter “The Emerging Importance of Social Visibility”). Our circuit adopted the Acosta definition as well, although it seemingly expanded it following the Ninth Circuit’s lead to also permit social groups based on a “voluntary associational relationship among the purported members.” Safaie v. INS, 25 F.3d 636, 640 (8th Cir.1994) (theorizing a group of Iranian women who refuse to conform to Iranian customs relating to dress and behavior and whose opposition is so profound that they would choose to suffer the severe consequences of noncompliance “may well satisfy the definition”) (citing the standard in Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986)).

Beginning in 2006, however, the BIA started deviating from the Acosta definition of “particular social group” by emphasizing the importance of social visibility of a given group. In Matter of C-A-, for example,2 the BIA reiterated its adherence

[671 F.3d 684]

 

to Acosta, but listed “the extent to which members of a society perceive those with the characteristic in question as members of a social group” as a “relevant factor” in the analysis. 23 I. & N. Dec. 951, 956-57 (B.I.A.2006). Applying this standard, the BIA rejected the proposed social group of noncriminal drug informants working against the Cali drug cartel in Colombia in part because “the very nature of the conduct at issue is such that it is generally out of the public view.” Id. at 960.

The BIA continued the trend in Matter of A-M-E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A.2007), by refusing to recognize a social group of “affluent Guatemalans” targeted for ransom. The BIA acknowledged the petitioners should not be expected to divest themselves of their wealth under the second prong of Acosta, but denied the claim on the basis of the applicants’ inability to show “social visibility,” id. at 75 (lamenting the lack of evidence to demonstrate “the general societal perception” of wealthy people was different from the common perception of groups at different socio-economic levels), and “particularity,” id.at 76 (criticizing the proposed group for being “too amorphous” and “indeterminate”). In its reasoning, the BIA drew on the Second Circuit opinion in Gomez v. INS, 947 F.2d 660, 664 (2d Cir.1991), where the court required members of a cognizable social group to possess “some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.”

The biggest transformation in the BIA’s “particular social group” jurisprudence, however, came in its two most recent decisions issued on the same day in 2008: Matter of S-E-G-,24 I. & N. Dec. 579 (B.I.A.2008), and Matter of E-A-G-, 24 I. & N. Dec. 591 (B.I.A.2008). Both confronted claims of gang-related persecution under the rubric of membership in a particular social group. In E-A-G-, the BIA refused to recognize social groups of “young persons who are perceived to be affiliated with gangs (as perceived by the government and/or the general public)” and “persons resistant to gang membership (refusing to join when recruited)” because these groups “have not been shown to be part of a socially visible group within Honduran society, and the respondent [does not] possess[] any characteristics that would cause others in Honduran society to recognize him as one who has refused gang recruitment.” 24 I. & N. Dec. at 593-94. In S-E-G-, the unsuccessful group was that of Salvadorian youth who have been subjected to recruitment efforts by the MS-13 and who have rejected and resisted membership in the gang based on their own personal, moral, and religious opposition to the gang’s values and activities. 24 I. & N. Dec. at 579. Their claim for asylum failed because, according

[671 F.3d 685]

 

to the BIA, it did not fare well under the “recent decisions holding that membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.” Id. In essence, the decisions elevated the requirements of “social visibility” and “particularity” from merely some of the many factors in the holistic analysis of the issue to absolute prerequisites to establishing membership in a particular social group.

This new approach to defining “particular social group” split the circuits as to the validity and permissible extent of the BIA’s reliance on “social visibility” and “particularity.” Compare Valdiviezo-Galdamez v. Holder, 663 F.3d 582, 603-09 (3d Cir.2011) (concluding the BIA’s “social visibility” and “particularity” requirements are inconsistent with prior BIA decisions and rejecting the government’s attempt to graft these additional requirements onto petitioner’s social group claims); Gatimi v. Holder, 578 F.3d 611, 615-16 (7th Cir. 2009) (criticizing the BIA’s decisions in S-E-G- and E-A-G- for being “inconsistent” with the BIA’s precedents in Acosta and Kasinga and for failing to explain the reasons for adopting the “social visibility” criterion); Benitez Ramos v. Holder, 589 F.3d 426, 430-31 (7th Cir.2009) (denouncing the BIA’s insistence on “social visibility,” sometimes in its literal form, and charging the BIA might not understand the difference between visibility in a social sense and the external criterion sense); Urbina-Mejia v. Holder, 597 F.3d 360, 365-67 (6th Cir.2010) (noting being a former gang member is an immutable characteristic and defining former members of the 18th Street gang as a “particular social group” based on their inability to change their past and the ability of their persecutors to recognize them as former gang members), with Lizama v. Holder, 629 F.3d 440, 447 (4th Cir.2011) (upholding the BIA’s definition of a particular social group as requiring that “(1) its members share common immutable characteristics, (2) these common characteristics give members social visibility, and (3) the group is defined with sufficient particularity to delimit its membership”); Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th Cir.2009) (upholding the BIA’s adoption of the “social visibility” requirement); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir.2009) (rejecting petitioners’ claims the BIA is precluded from considering the visibility of a group); and Fuentes-Hernandez v. Holder,411 Fed.App’x. 438, 438-39 (2d Cir. 2011) (stating individuals who resisted gang recruitment in El Salvador do not constitute a “particular social group” because their proposed group lacked “social visibility” and “particularity” and because the alleged persecution “did not bear the requisite nexus to a protected ground”).

I agree with the circuits which hold the BIA’s addition of the “social visibility” and “particularity” requirements to the definition of “particular social group” is arbitrary and capricious. First, as discussed above, these newly added requirements are inconsistent with prior BIA decisions. Specifically, they are in direct conflict with the definition of “particular social group” announced in Acosta. By stating this, I am in no way suggesting the BIA must continue to adhere to the Acosta definition. I am of course cognizant the BIA may “add new requirements to, or even change, its definition of `particular social group'” over time. Valdiviezo-Galdamez, 663 F.3d at 608; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (stating an agency may change its interpretation of a stature or regulation over time). The BIA, however, must explain its choice for

[671 F.3d 686]

 

doing so because an unexplained departure from established precedent is generally “a reason for holding [the departure] to be an arbitrary and capricious change from agency practice[.]” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009) (stating “the agency must show that there are good reasons for the new policy”); Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d 1115, 1123 (8th Cir. 1999) (noting “a sudden and unexpected change in agency policy” may be characterized as arbitrary and capricious).

Because the BIA departed from its well-established Acosta definition without providing a reasonable explanation for its choice, the departure is arbitrary and capricious. Thus, although I am bound by our decisions in Constanza and Ortiz-Puentes, I cannot agree with our circuit’s as-a-matter-of-course adoption of the BIA’s new approach to defining “particular social group”—an approach which not only represents a stark departure from established precedent, but also eviscerates protections for many groups of applicants eligible under the agency’s prior definition.

Therefore, I reluctantly concur in the result.

FootNotes

1. Gaitan does not address the denial of relief under the Convention Against Torture in his brief. Any argument based on that ground is therefore deemed waived. See Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 n. 3 (8th Cir.), cert. denied, ___U.S. ___, 132 S.Ct. 315, 181 L.Ed.2d 194 (2011). Gaitan notes that he does not waive his claim that he is otherwise eligible for relief in the form of withholding of removal under the INA. However, “[t]he standard for withholding of removal, a clear probability of persecution, is more rigorous than the well-founded fear standard for asylum. An alien who fails to prove eligibility for asylum cannot meet the standard for establishing withholding of removal.” Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005) (internal citations omitted). Because we find that Gaitan is not eligible for asylum, Gaitan is unable to meet the standard for establishing withholding of removal.

 

2. The BIA signaled its intention to break away from the Acosta standard as early as 2001, in its decision in Matter of R-A-, 22 I. & N. Dec. 906 (B.I.A.2001). There, the BIA refused to accord a social group status to a group of “Guatemalan women who have been involved intimately with Guatemalan male companions who believe that women are to live under male domination.” Id. at 917-18. Although the outcome of the opinion was unobjectionable even under the traditional Acosta standard, its logic was noteworthy for the BIA’s insistence that the applicant demonstrate “how the characteristic is understood in the alien’s society” and how “the potential persecutors… see persons sharing the characteristic as warranting suppression or the infliction of harm.” Id. at 918. Because at the time R-A- was issued, the Immigration and Naturalization Service was in the process of finalizing a rule defining “membership in a particular social group,” the Attorney General vacated the BIA’s opinion pending the publication of that rule. In re R-A-, 22 I. & N. Dec. 906 (B.I.A.2001). The proposed rule would incorporate R-A-‘s consideration of social visibility, but only as one of several non-exclusive factors. Asylum & Withholding Definitions, 65 Fed.Reg. 76,588, 76,594 (Dec. 7, 2000). Ultimately, the rule was never formalized, and the ball was back in the BIA’s court to define the “particular social group” incrementally, on a case-by-case basis.”

When Gaitan came out in 2012, the Bushies were gone Obama had taken over, and the Attorney General was Eric Holder. One might have thought that someone with Holder’s reputation for civil rights sensitivity and equal justice under the law might have forced the BIA to confront its tarnished past, or at least have appointed some “asylum experts” as Appellate Judges to force the BIA to engage in some “two-sided” appellate deliberation.
But, alas, Holder, like his successor Attorney General Loretta Lynch, didn’t  see a need to extend civil rights and fair legal treatment to refugees and asylum seekers being mistreated by the DOJ’s wholly owned subsidiary, the BIA. It became apparent that Holder and Lynch rather liked the idea of owning a complacent, largely pro-Government appellate court just as much as Ashcroft and the Bushies did.
During the Obama Administration, the BIA continued to be comprised of Appellate Judges who were insiders and/or bureaucrats. They kept the numbers rolling, didn’t rock the boat, almost never dissented, and “went along to get along” even with obviously flawed legal policies that forced scared, often semi-literate women and children to represent themselves before the U.S. Immigration Courts and make out cases under the BIA’s arcane, convoluted, and generally applicant-unfriendly definitions of PSG. So Sessions was able to take over a dysfunctional court system (in terms of its due process mission), but a relatively well-oiled “denial mill” masquerading as a Federal Appellate Court. And, that’s where we stand today, folks!

The U.S. Immigration Courts will not regain integrity until the are removed from the Executive Branch and reconstituted as as an independent Article I or even Article III Court. Until then, it’s likely that refugees and asylum seekers will continue to suffer unfair treatment, bias, and undeserved fates under the U.S. asylum system. Doesn’t anybody care?

PWS

09-14-17

 

Related posts:

  1. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

ATTN: “NEW DUE PROCESS ARMY” & ALL INTERESTED ATTORNEYS: Pro Bono Immigration Lawyers Needed In NOVA — Training Will Be Provided By Catholic Charities Legal Services!

Our minister, Pastor Deborah Porras of Beverley Hills Community Methodist Church in Alexandria, VA sent me the following:

———- Forwarded message ———
From: NOVASanctuaryCongregationsNetwork <novasanctuarycongregationsnetwork@googlegroups.com>
Date: Wed, Sep 13, 2017 at 1:16 PM
Subject: Seeking attorneys for pro bono immigration cases
To: NOVASanctuaryCongregationsNetwork <novasanctuarycongregationsnetwork@googlegroups.com>

 

Please pass the following on to attorneys who may want to help with pro bono immigration cases:

 

 

Are you a lawyer? Would you like to use your legal skills to help keep our immigrant neighbors safe? One of the most pressing needs we hear from immigrant organizations in the DC area is “more lawyers” – and with DACA recipients now needing to look at what other options they may have to remain in the country, the need for legal services is especially great right now.

 

The All Souls (Unitarian) Church Sanctuary Movement Support Committee is sponsoring a training for lawyers who are interested in volunteering on a pro bono immigration case. Catholic Charities Immigration Legal Services will provide the training, coordinate case assignments, and support volunteers who are handling cases.

Immigration Legal Services Training
Wednesday, September 27, 2017
6:30-8:45 p.m.
All Souls Church Unitarian
1500 Harvard Street, NW
Washington, DC 20009
The training will include a general overview of immigration law as well as specific information on U visas for immigrants who have been the victim of a crime. Volunteers will be initially assigned to cases involving U visas.
Volunteers must be lawyers who are currently licensed to practice and may not be federal employees. If you’re interested in volunteering, click here to register for the required training, or contact Maya Hermann at hermann.maya@icloud.com.
—
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To unsubscribe from this group and stop receiving emails from it, send an email to novasanctuarycongregationsnetwork+unsubscribe@googlegroups.com.
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To view this discussion on the web visit https://groups.google.com/d/msgid/novasanctuarycongregationsnetwork/66f7c2fb-6ef2-427b-b6e8-3f7efb9cc3cf%40googlegroups.com.
For more options, visit https://groups.google.com/d/optout.
—
Sent from Pastor Deborah with blessings!

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

There is no greater due process need in America today than the need for pro bono lawyers to represent migrants appearing before the USCIS and in the U.S. Immigration Courts. Unlike criminal cases, Government appointed counsel is not available to those facing removal from the US, even if they have been here for decades or have green cards.

Lawyers make a difference!  In Immigration Court represented migrants are 5 to 17 times more likely to “win”  their cases than are those who are forced to appear without counsel. I’m sure the same is true before USCIS in the area of “U” visas for victims of crime. The “U” visa process is complicated and requires meticulous documentation and effective presentation. I personally can’t imagine how anyone could successfully navagate this process without a highly competent lawyer!

Sign up now to make a difference in someone’s life and to make America and the world a better place.

Note: In my “cut and paste” I wasn’t able to reproduce the “live” links in the original e-mail. So those interested should contact Maya Hermann at her e-mail address in bold above!

PWS

09-13-17

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  4. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!

TAL KOPAN AT CNN: WE’LL SOON LEARN IF THERE IS ANY LIMIT TO THE TRUMP ADMINISTRATION’S BAD IMMIGRATION POLICIES: Hundreds Of Thousands Of U.S. Workers & Families In “TPS” Status Anxiously Await Word Of Their Fate!

http://www.cnn.com/2017/09/11/politics/next-daca-tps-temporary-protected-status/index.html

Tal reports

“To qualify for protections from El Salvador, recipients must have lived in the United States since 2001, and for Honduras, it’s 1998, meaning any revocation of the program would upend lives built in the United States for nearly 20 years.
Lawmakers have been pressing the Trump administration to preserve temporary protected status for the countries whose deadlines for redesignation are coming up soon, citing the communities that would be harmed. At a meeting in July with members of the Congressional Hispanic Caucus, then-Homeland Security Secretary John Kelly indicated he could end Haiti’s status but hadn’t made a decision on Central America.
In addition to the humanitarian concerns, supporters of the program point to analyses that show an economic impact from revoking it.
“If El Salvador terminates, literally 260,000 eligible workers will fall out of the workforce at the stroke of midnight on whatever day that happens,” Rodriguez said.
An analysis by the Immigrant Legal Resource Center, which advocates for pro-immigration policies, found that deporting all the immigrants from El Salvador, Honduras and Haiti who have temporary protected status would cost $3.1 billion and take away $6.9 billion in contributions to Social Security and Medicare and $45.2 billion to the gross domestic product over a decade. Turnover costs for their employers would total nearly $1 billion.
“There’s different elements to the concern,” said Rep. Zoe Lofgren, a Democrat from California. “First, in the case of people who’ve been here a considerable period of time, people become members of their community, and so … a couple decades later, you own businesses, you have families, you have grandchildren, you’re kind of part of our situation here.”
Lofgren said the designated countries often remain in dire straits, and sending people back to them would be “unwise.”
The program is one of the issues that Congress needs to tackle as part of immigration reform because insisting on keeping recipients’ status temporary becomes untenable, she said.
“There should be some rational way to transition people who have been here for a long time, and in the case of these people, they’ve been here in legal status, who because of the length of their stay have basically become valued members of our community,” Lofgren said. “That’s a matter of a change of immigration law.”
***************************************
Read Tal’s complete article at the link.
Terminating TPS would further de-stabbilize the U.S. Immigration Court system because many, probably the majority of TPS recipients have court cases that were “administratively closed” and therefore taken off that Court’s docket (currently totalling more than 610,000 cases with some hearings already scheduled four or more years in the future). Merely the preliminary act of “moving to re-calendar” the TPS cases all at once could crash the court system, given its current non-automated, largely manual, paper intensive procedures and lack of any e-filing.
If hundreds of thousands of individuals were returned to El Salvador it would likely de-stabllize the country and lead to collapse and internal chaos. Additionally, loss of “remittances” sent to El Salvador by legally working TPS individuals in the U.S. would almost certainly send the El Salvadoran economy into a tailspin. For that reason, a prior plan during the Clinton Administration for a phase-out of Salvadoran TPS led to panicked entreaties from the Salvadoran Government to the Administration to leave the TPS program in place.
From my perspective as an Immigration Judge, TPS was one of the “smartest” programs ever. It allowed many deserving individuals with difficult asylum cases that would have taken many hours of hearing time to be removed from the court docket with minimal work for the Immigration Court and our overburdened staff. Even “de novo review” of a TPS denial could ordinarily be accomplished in a 30 minute “short block” of hearing time rather than a 3-hour “full block” hearing.
TPS combined efficient adjudication by USCIS with needed work authorization for American families, while “demurring” on the more difficult questions of green card status or a path to citizenship. It also had an effective  enforcement mechanism. Those relatively few TPS individuals who committed a felony or two or more misdemeanors were arrested, placed in detention, stripped of status, and in most cases removed from the U.S. promptly under the policies placed in effect by the Obama Administration.
PWS
09-11-17

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  3. INCONVENIENT TRUTH: HALEY SWEETLAND EDWARDS @ TIME TELLS WHAT TRUMP, MILLER, COTTON, SESSIONS, & THEIR WHITE NATIONALIST GANG DON’T WANT YOU TO KNOW: Human Migration Is A Powerful Force As Old As Human History; It’s A Plus For Receiving Nations; It Won’t Be Stopped By Walls, Jails, Racist Laws, Or Any Other Restrictionist Nonsense; But, It Can Be Intelligently Controlled, Channeled, Harnessed, & Used For The Benefit Of The U.S. & The Good Of The Migrants! — “But to maximize that future good, governments must act rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.”
  4. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!

ABA JOURNAL: “Dickie The P” Reportedly Quit 7th Over Rift With Colleagues About Treatment Of Pro Se Litigants — Perhaps He Should Check Out In Person How Sessions’s DOJ & Captive Immigration Courts Intentionally Abuse & Deny Due Process To Unrepresented Migrants!

http://www.abajournal.com/news/article/why_did_posner_retire_he_cites_difficulty_with_his_colleagues_on_one_issue/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Debra Cassens Weiss reports:

“Judge Richard Posner had intended to stay on the federal appellate bench until he reached 80, an age he believed to be the upper limit for federal judges.

But on Friday, at the age of 78, he abruptly announced his retirement from the Chicago-based 7th U.S. Circuit Court of Appeals, effective the next day. The reason is due to “difficulty” with his colleagues over the court’s treatment of people who represent themselves, he told the Chicago Daily Law Bulletin in an email.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner said. The issue will be addressed in an upcoming book that will explain his views and those of his colleagues “in considerable detail,” Posner said.

Posner said he did not time his retirement to allow President Donald Trump to appoint his replacement. “I don’t think it’s proper for judges or justices to make their decision to retire depend on whom they think the president will appoint as replacements,” he told the Law Bulletin. With Posner’s retirement, the 7th Circuit has four vacancies.

Posner was appointed by President Ronald Reagan in 1981, and was widely considered a conservative. He has since written more than 3,300 judicial opinions, and not all please conservatives, according to the Law Bulletin. On the one hand, he struck down the Illinois ban on carrying weapons in public, called for fewer restrictions on domestic surveillance, and limited class certification in class-action lawsuits. But he has also written opinions favoring abortion rights and same-sex marriage.

In a 2012 interview with National Public Radio, Posner said he has become less conservative “since the Republican Party started becoming goofy.” But he won’t remain above the fray in politics.

He told the Law Bulletin that his retirement will allow him to assist his cat, Pixie, in a run for president in 2020. Above the Law had endorsed Pixie last year, but Posner was unable to participate in the campaign.”

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

Perhaps “Dickie The P” can take some time away from Pixie to visit the kangaroo courts that DOJ has established in prisons intentionally located in out of the way places where traumatized individuals seeking refuge from life-threatening conditions are held in substandard conditions and forced to represent themselves in “death penalty cases” involving some off the most complex and (intentionally) obtuse concepts in modern American law.

Love him or loathe him (or both), Posner is a prolific writer and thinker whose views can’t be ignored or swept under the table. What’s happening in the U.S. Immigration Courts under Sessions is a national disgrace. A high profile legal commentator like Posner, who frankly doesn’t care whom he pisses off, could shed some light on the travesty now passing for due process in the Immigration Courts and how too many of his former Article III colleagues have turned their backs on their constitutional duties rather than taking a strong legal stand against intentional abuse of the most vulnerable  by our legal system. A voice like Posner’s advocating for an Article I Court would be heard!

PWS

09-08-15

Related posts:

  1. DUE PROCESS DENIED! — NIJC REPORT FINDS THAT DHS DETENTION IN OBSCURE LOCATIONS DEPRIVES MIGRANTS OF MEANINGFUL ACCESS TO COUNSEL! — This Is What Happens When We Enable The “American Gulag!”
  2. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  3. HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

COURTSIDE COMMENTARY/ANALYSIS: AG Jeff “Gonzo Apocalypto” Sessions Might Be A Clown 🤡 — But His White Nationalist Plan To Destroy The American Justice System Is No Joke — He Has Already Done Untold Damage To Our Country & Our Rights — And, He And His White Supremacist Buddy Steve Bannon, The Alt-Right, And Other Haters Are Just Getting Started On Their Plan To Turn America Into A “Whites Only” Paradise!

Three articles from today show the “clear and present danger” to American democracy, our national security, and our fundamental values stemming from Jeff “Gonzo Apocalypto” Sessions and his radical right — some would say fascist is more accurate — cabal.

While Trump increasingly appears to be a looney incompetent functioning primarily in the early morning “tweetosphere,” Sessions & Co. know a thing or two about how to take over and sabotage government of the people, by the people, and for the people. (Ironically, the “Party of Lincoln” has morphed into  the “anti-Lincoln,” opposed to equality, generosity, democracy, and inclusion.)

First, Dana Milbank in the Washington Post describes “Gonzo the Clown’s” ludicrous attempts to use and abuse criminal law to suppress free public expression of opinions:

“Did you hear the one about Jeff Sessions?

I’d like to tell you, but I can’t. You see, it’s illegal to laugh at the attorney general, the man who on Tuesday morning announced that the 800,000 “dreamers” — immigrants brought here illegally as children — could soon be deported. If you were to find my Sessions jest funny, I would be an accessory to mirth.

This is no joke, because liberal activist Desiree Fairooz is now being put on trial a second time by the Justice Department — Jeff Sessions’s Justice Department — because she laughed at Sessions during his confirmation hearing. Specifically, she laughed at a line about Sessions “treating all Americans equally under the law” (which is, objectively, kind of funny).”

Yeah, I guess what Sessions, a well-established liar, probably a perjurer, really meant was “all Americans except Blacks, Hispanics, Asian Americans, immigrants, migrants, Dreamers, gays, lesbians, transgendered, bisexual, criminal defendants, Democrats, non-Christians, protestors, non-GOP women, and the poor.” Read the rest of Dana’s article here:

https://www.washingtonpost.com/opinions/apparently-its-illegal-to-laugh-at-jeff-sessions/2017/09/05/86b6e48a-9278-11e7-aace-04b862b2b3f3_story.html?hpid=hp_no-name_opinion-card-b%3Ahomepage%2Fstory&utm_term=.c6b057add449

But, the following list of hostile actions that Sessions has already taken at Justice, compiled by CNN’s Gregory Krieg, are no laughing matter:

“*Directed federal prosecutors to pursue the stiffest possible charge in every single criminal case — potentially triggering draconian mandatory minimum sentences the Obama administration tried to avoid on fairness grounds for non-violent offenders.

*Withdrawn an Obama administration directive offering protections for transgender students who wanted to use bathrooms corresponding to their gender identity.

*Reversed an Obama DOJ order that the federal Bureau of Prisons back off new deals with private facilities. “I direct the Bureau to return to its previous approach,” Sessions said in a memo citing concerns that the “future needs of the federal correctional system” would be “impaired.”

*Launched a broad-based effort to reduce federal oversight of local police departments, like those put under increased scrutiny following investigations into alleged abuses. The deputy attorney general and associate attorney general were ordered to review lots of things, including all “contemplated consent decrees.”

*In a move criticized by voting rights advocates, asked state election officials in June to lay out their processes for purging voter rolls of individuals who have become ineligible due to, among other reasons, “death or change of residence.”

*Put in place a policy that could pave the way for an increase in a certain kind of civil asset forfeiture, a controversial practice — in this case a joint federal, state and local version that some departments were accused of using to get around state law — that allows police to seize money or property from suspects who haven’t been convicted of a crime. (The DOJ says it has put new safeguards in place to prevent abuse.)

And more.
Consider Trump’s plan to end DACA. When it came down to it, the President steered clear of the spotlight and let Sessions be the public face of a decision officials from both parties have described as unfair or even cruel.
It’s not the first time Trump has been happy enough — or detached enough, depending on your assessment of the his mindset on these issues — to defer to Sessions or, in cases where executive action is required, follow his lead. Where Trump is primarily focused on how he’s covered in the press and how his actions play with “the base,” officials like Sessions and EPA Administrator Scott Pruitt have shown themselves to be laser-focused on very specific policy points.

. . . .

By his side? None other than a once anonymous aide turned top Trump White House official: Stephen Miller.”

Read Gregory’s complete article here:

http://www.cnn.com/2017/09/06/politics/jeff-sessions-donald-trump-daca-policy/index.html

And, in the Washington Post,  Sarah Posner puts it all in scary context by describing the Bannon-led White Nationalist’s larger program to turn America into a White Theo-Fascist State:

“Now that he is out of the White House, Bannon’s ambitions, if anything, appear to seek an even more enduring footprint on Republican politics. His grand plan is to remake American conservatism, by shifting it away from its long-standing “three-legged stool” coalition of tax-cutters, defense hawks and the religious right. His strategy is to peel away Christian conservatives from that coalition, and to build a new coalition with anti-immigrant, anti-Muslim, far-right nationalists, in order to make the Trump revolution permanent, even after Trump has left the White House.
Consider the headline on a prominently placed “exclusive” published on the site late last night, which heaps the most coveted of Breitbartian praise on Moore: “Judge Roy Moore Embodies Jeff Sessions.” In an interview with Breitbart, Moore says he shares Sessions’s views on immigration and trade, and that he, too, is a “very strict constructionist of the Constitution.” He says he favors impeaching federal judges, even Supreme Court justices, and singles out Obergefell v. Hodges , the landmark 2015 case legalizing same-sex marriage, as warranting impeachment.
Bannon hinted at some of his designs in an interview with me last year. He said that, without the religious right, his base alone lacks the numbers to “to ever compete against the progressive left.”
In Moore, Bannon has found an unabashed proponent of “biblical law.” Bannon doesn’t appear to care much about “biblical law,” but Moore’s overheated depiction of the overreach of the federal government dovetails with the Bannon goal of “the deconstruction of the administrative state.”
Indeed, the Breitbart-Moore alliance is the most vivid example to date of the anti-government, white-nationalist Breitbart forces teaming up with a candidate with shared views on issues such as immigration and the role of the federal government, but which are driven by outwardly theocratic aspirations. Bannon is not seen as an overtly religious figure, but he has actively sought the religious right’s imprimatur for purely political purposes.
As Politico reports, Bannon himself is now using Breitbart to help “orchestrate the push” for Moore’s candidacy in high-level meetings with influential conservative groups.
There is a good deal of overlap between Bannon’s depiction of Trumpism as a revolt against global elites and Moore’s own rhetoric. Moore has long railed at elitists and “tyrannical” government overreach, albeit from a theocratic point of view. He first became a national hero to the religious right over a decade ago, after he was stripped of his post as chief justice of the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton Ten Commandments monument from the state courthouse, because it violated the separation of church and state.
Undeterred, Moore ran unsuccessfully for governor and then again for his state’s top judicial post, regaining his seat in 2012. After a federal court struck down the state’s ban on same-sex marriage in early 2015, Moore pointedly told Alabama’s governor that complying with the federal court order could violate God’s law.
Although Breitbart hardly teems with religious language, Moore shares its conspiratorially dark vision of America, and particularly America’s perceived enemies. When I saw him speak in 2011, when Barack Obama was still president, Moore maintained: “Our government is infiltrated with communists, we’ve got Muslims coming in and taking over where we should be having the say about our principles.” On immigration, he said the government was failing “to protect against invasions” and was “letting anybody come in!”
Ultimately, the Breitbart-Moore alliance offers a hint at where the Trump base is headed. If Bannon has his way, it will evolve into a kind of coalition of anti-immigrant, anti-Muslim white nationalists seeking to disrupt the GOP from within by joining forces with the Christian right, long an essential component of the GOP base. Whether or not Moore wins, if Bannon can keep pushing the Trumpist base in that direction by continuing to solidify that coalition, we can only guess at the consequences that will have for the GOP over the long term.”

Consequences for the GOP, Sarah? What about the consequences for the world and humanity of turning America into a White Fascist State incorporating the worst parts of Christian mythology, while leaving the kind, merciful, inclusive, and forgiving message of Jesus Christ in the dust?

In the first place, fortunately, only a minority of Americans share the Bannon-Sessions White Nationalist dream. So, making it come to fruition has to involve suppressing and overcoming by unlawful or unconstitutional means the will and rights of those of us in the majority.

That’s an old Bolshevik trick. And, indeed, Bannon is a self-proclaimed “Leninist revolutionary” — Sessions is his Trotsky. (Can’t really picture Stephen Miller as Stalin —  but his ability to concoct lies at a moment’s notice and his cold lack of humanity or any discernible decency or human values, along with his disdain for representative government and love of the dictatorial model certainly fits “Papa Joe” to a tee. You could definitely imagine Miller as leader of a Trump “personality cult” in a fascist regime.)

Read Sarah’s complete article here:

https://www.washingtonpost.com/blogs/plum-line/wp/2017/09/05/steve-bannons-grand-disruptive-designs-are-only-getting-started/?utm_term=.80ddcfa9f294

But, that’s not all folks! Intentionally cruel, racist, and gonzo as Sessions’s grand plan of “ethnic cleansing” of Dreamers might be, it would actually cost the US economy an astounding  $215 billion, and that’s a conservative estimate that doesn’t even factor in the billions that would be wasted by DHS and EOIR in arresting and deporting America’s future stars (basically, because they aren’t White. As I’ve said before, no sane person thinks we’d be having this orchestrated “immigration debate” if the migrant population were predominantly white, English as a first language, Christians)!

According to Vanessa Wang in Buzzfeed:

“Reversing the Deferred Action for Childhood Arrivals program could cost the economy $215 billion in lost GDP and cost the federal government $60 billion in lost revenue over ten years, according to the libertarian think tank the Cato Institute.
Ike Brannon, a visiting fellow at Cato, wrote in a recent blog post: “It is important to note that these estimates are conservative, as DACA recipients will likely end up being more productive than their current salaries indicate, as they complete their degrees and gain experience in the workplace. Nor does this analysis factor in the enforcement cost of physically deporting recipients should the program be eliminated, which we believe would be significant.”
California, New York and Florida would bear the greatest costs, according to the Cato Institute’s analysis.
The New American Economy — a coalition of business leaders and mayors “who support immigration reforms that will help create jobs for Americans today” — estimated that the DACA-eligible population earns almost $19.9 billion in total income annually, contributes more than $1.4 billion to federal taxes, more than $1.6 billion to state and local taxes and represent almost $16.8 billion in spending power.
“Despite the rhetoric claiming undocumented youths are a drain on the U.S. economy, 90% of the DACA-eligible population who are at least 16 years old are employed” and contribute meaningfully to the economy, the coalition wrote in a brief.
“Ending DACA will disrupt hundreds of thousands of promising careers and cost the US economy dearly,” said John Feinblatt, President of New American Economy in a statement on Tuesday.
On Tuesday, the Department of Homeland Security said it would shut down DACA in six months, potentially giving Congress some time for a legislative solution. House Speaker Paul Ryan has said there are DREAMers “who know no other country, who were brought here by their parents and don’t know another home. And so I really do believe there that there needs to be a legislative solution.”
“Now it’s imperative for Congress to do what’s right and economically smart – protect the young achievers who know no home but America,” said Feinblatt.”

That’s right folks! The Bannon-Sessions White Nationalists would be willing to damage our economy to the the tune of probably a quarter of a trillion dollars for the sheer joy of ruining human lives and entrenching their White Power structure. In most other contexts, there would be a name for such conduct: “domestic terrorism!”

Here’s a link to Vanessa’s article:

https://www.buzzfeed.com/venessawong/scrapping-daca-could-cost-the-economy-as-much-as-215-billion?utm_term=.xdw9nKYOa#.liAZ2w8Y5

Finally, a number folks have noted that DACA is a DHS/USCIS program. So, why was the Attorney General, who pointedly was stripped of his immigration deportation functions and responsibilities by the Act creating DHS, out there acting like he is the deporter-in-chief and administrator of the DHS (which, by statute, he no longer is.)

 

Well, not suprisingly, I’m not in the Trump Administration’s “inner circle.” So, who knows for sure.

But, to me two things were evident. First, Donald Trump is a coward who didn’t have the guts to be the front man for his own inhumane policy — particularly since Sessions contradicted Trump’s public assurances that he “loved Dreamers,” understood their plight, and that they had “nothing to fear” from him and his Administration because he was going to come up with a”great solution” to their situation.

Second, Sessions has never accepted his secondary statutory and Constitutional role in immigration enforcement. With the weak Gen. Kelly in charge of DHS, Sessions simply pretended like the AG was back at the helm of immigration enforcement. After all, Sessions has spent a lifetime attempting to turn back the clock. This is just the first time that he has gotten away with it without any real opposition.

Kelly was a “bobblehead,” meekly agreeing with Sessions’s most outrageous, unlawful, and inhumane statements. He even lent his name to an infamous Sessions-Miller contrived “letter” asking the President for Travel Ban 2.0 and citing facially bogus statistics and disingenuous arguments attempting to tie individuals from Muslim countries to unrelated terrorist threats. In other words, on immigration enforcement, Kelly’s “substance” was about 1/16″ deep, and I’m being generous.

Obviously, killing the Dreamers’ future while heaping scorn on them was Session’s version of “Super Bowl Sunday:” a chance to publicly reclaim the role of deporter-in-chief, while inflicting gratuitous harm on a gallant but vulnerable (largely non-White) group of young people, and tossing in some gratuitous racist insults and nativist lies in the process. For a guy who has spent a lifetime heretofore unsuccessfully trying to “get back to Jim Crow” (where not coincentally, bogus “rule of law” arguments and “state’s rights” were used by Sessions’s Alabama antecedents to deny Black Americans not only their constitutional rights but in many cases their very lives in the process) this had to be “hog heaven.” Let’s not forget that Sessions has endorsed the blatantly racist and anti-semitic “Immigration Act of 1924” as a model for White Nationalist restrictionist policies. See, e.g.: http://www.slate.com/blogs/the_slatest/2017/09/05/jeff_sessions_praise_of_1924_eugenics_immigration_law_remains_insane.html

I’m sure Gonzo pines for the “good old days” of the Chinese Exclusion Laws when America knew how to use the “rule of law”  and just how to treat the folks who built the trans-continental railroad, most of California, lots of New York, and points in between. Declare them to be an “inferior race” — a threat to our cultural integrity —  and throw them out before they can displace the White Americans who exploited their ingenuity and hard labor.

Also, make no mistake about it, if Sessions were able to carry out his gonzo plans to deport Dreamers to foreign lands that most of them have hardly lived in, some will actually die in the process. But, hey, the lives of non-Whites are just “collateral damage” in the Bannon-Sessions world vision.

Sessions is part of our nation’s racist, White Supremacist past that we will need to get beyond to continue to prosper as a country and to lead the free world. The Dreamers can help us do that! The only question for the rest of us is what legal channels are available to move Sessions and his cohorts out of the way so that the Dreamers, along with other immigrants and minorities, can help lead us to a brighter future as a proudly diverse, humane, and powerful nation.

Liz Warren was right! America is better than Jeff Sessions! It’s time we showed it!  

PWS

09-05-17

 

 

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!
  3. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  4. WALL? WHAT WALL? – BUREAUCRATIC BARRIERS BEST BAR TO (NEEDED) IMMIGRATION (Hey, I Could’ve Told ‘Em That!) – But, White Nationalist Goal Of Returning To A “White America” Ultimately Doomed — “You can slow the rate of Latino and Asian immigration, but it won’t make the population whiter,”. . . “It will just become less white at a slower pace.”

TAL KOPAN & JIM ACOSTA ON CNN: Speaker Ryan Says Trump Should Delay DACA Decision While Congress Works On Extension! — Also, Top Seattle Execs Urge Trump To Keep DACA

http://www.cnn.com/2017/09/01/politics/paul-ryan-daca-trump-immigration/index.html

Tal & Jim write:

“(CNN)House Speaker Paul Ryan on Friday gave a major boost to legislative efforts to preserve protections for young undocumented immigrants — and urged President Donald Trump to not tear up the program.

Trump told reporters Friday he was still mulling the decision.
Responding to a question about Deferred Action for Childhood Arrivals, or DACA, on his hometown radio station WCLO in Janesville, Wisconsin, Ryan said Congress was working on a legislative fix to preserve the program.
“I actually don’t think he should do that,” Ryan said of Trump’s consideration of terminating the program. “I believe that this is something that Congress has to fix.”
&#39;Dreamers&#39; anxious as Trump DACA decision looms
‘Dreamers’ anxious as Trump DACA decision looms
Ryan’s statement offers the most public support by anyone in the Republican congressional leadership for some sort of legislation to protect the “Dreamers” under DACA.
The popular Obama administration program — which gives protections from deportation to undocumented immigrants that were brought to the US as children to work or study — has long been targeted by Republicans as an overreach of executive authority.
Nevertheless, a number of moderate Republicans alongside Democrats support the program and have offered legislation that would make the protections permanent.

. . . .

The popular Obama administration program — which gives protections from deportation to undocumented immigrants that were brought to the US as children to work or study — has long been targeted by Republicans as an overreach of executive authority.
Nevertheless, a number of moderate Republicans alongside Democrats support the program and have offered legislation that would make the protections permanent.
Ryan, who worked on comprehensive immigration reform before he became part of House leadership, endorsed that approach in the interview.
“President (Barack) Obama does not have the authority to do what he did … we’ve made that very clear,” Ryan said in the radio interview. “Having said all of that, there are people who are in limbo. These are kids who know no other country, who were brought here by their parents and don’t know another home. And so I really do believe there that there needs to be a legislative solution.”
Trump’s decision
Asked whether he’s made a decision on DACA, Trump said: “Sometime today, maybe over the weekend.”
“We love the Dreamers,” he said.
The Trump administration has been discussing for weeks what to do about DACA, responding to the deadline on an ultimatum issued by 10 state attorneys general, led by Texas. The threat: Sunset DACA by September 5 or the states will try to end it in court.
Discussions have heated up this week as officials have met to chart a path forward. While a decision had been possible Friday, and one source familiar had believed a decision was pending Friday morning, by midday, sources familiar with the deliberations did not expect a decision before the weekend.
Parts of the Department of Homeland Security, which administers DACA, have been told to prepare for a decision but have not been given any potential details of what a decision may be.
White House discussing whether DACA deadline can be moved
White House discussing whether DACA deadline can be moved
Sources inside and outside the administration said the White House continues to explore buying itself time and is also considering allowing the attorneys general to proceed with their threat.
That course of action could potentially remove pressure from the White House, where the President has promised to act with “heart” on the matter and give Congress time to pass a legislative fix, and one source said it was under consideration.
Any action by the President to sunset DACA would put immediate pressure on Congress to act, something the White House and a senior congressional source recognize would be a challenge with many other pressing priorities at the moment, from Harvey relief to the debt ceiling to government spending. A go-slow approach on DACA is preferred, the congressional source added.
Big congressional boost
Ryan has long been sympathetic to the plight of Dreamers. At a CNN town hall at the beginning of the year, Ryan was asked by a young woman protected under DACA whether he wanted her deported. He said he was working with the Trump administration and seeking a “humane solution.”
“What we have to do is find a way to ensure that you can get right with the law,” the speaker told the young woman.
But until now, leadership has not helped the push by moderate Republicans to advance legislation to do so. Four different options have been introduced in Congress, including two bipartisan solutions led by Sens. Lindsey Graham, a South Carolina Republican, and Dick Durbin, an Illinois Democrat. Another proposal from Florida Republican Rep. Carlos Curbelo has entirely Republican support and is expected to be introduced in a similar form in the Senate by North Carolina Republican Thom Tillis.
In addition to Ryan’s endorsement, another conservative boost on Friday came from Utah Sen. Orrin Hatch, a staunch conservative who has in the past supported immigration reform.
“I’ve urged the President not to rescind DACA, an action that would further complicate a system in serious need of a permanent, legislative solution,” Hatch said in a statement. “Like the President, I’ve long advocated for tougher enforcement of our existing immigration laws. But we also need a workable, permanent solution for individuals who entered our country unlawfully as children through no fault of their own and who have built their lives here. And that solution must come from Congress.”
Colorado Rep. Mike Coffman, a moderate Republican, announced on Thursday he would try to force a vote on one of the bipartisan bills when Congress returns next week through what’s known as a discharge petition, which would require a majority of House members to sign on to work. The speaker’s office had no comment on that effort.”

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

Additionally, as reported in the Seattle Times, the CEOs of Microsoft, Amazon, and Starbucks have added their voices of support for Dreamers:

“The leaders of Amazon, Microsoft and Starbucks joined other corporate executives in asking President Donald Trump to keep in place a program that shields from deportation young people who came to the U.S. illegally as children.

The Deferred Action for Childhood Arrivals (DACA) program, which protects about 800,000 “Dreamers,” is said to be a target for repeal as Republican attorneys general threaten to sue to push the Trump administration to carry out the president’s hard-line pledges on immigration.

 

Supporters of the program, including Washington Gov. Jay Inslee, came to its defense this week, urging the White House to keep DACA intact. Those ranks swelled with hundreds of corporate executives, lawyers and other organizations who made largely economic arguments in a separate open letter.

“Dreamers are vital to the future of our companies and our economy,” the letter said. Signatories include Amazon.com chief executive Jeff Bezos, Microsoft CEO Satya Nadella, and Starbucks boss Kevin Johnson.”

http://www.seattletimes.com/business/microsoft-amazon-starbucks-leaders-voice-support-for-dreamers/?utm_source=referral&utm_medium=mobile-app&utm_campaign=ios

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

Read Tal’s complete article at the link.

A legislative solution seems to be in everyone’s best interests here!  Let’s hope it will happen.

PWS

O9-01-17

Related posts:

  1. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  2. PREVENTABLE HUMAN DISASTER: THE WANTON CRUELTY, WASTEFULNESS, & TOTAL STUPIDITY OF THE TRUMP/SESSIONS “GONZO” IMMIGRATION ENFORCEMENT PROGRAM PORTRAYED IN GRAPHIC HUMAN TERMS — The Damage To America Of Mistreating Our Families & Our Citizen Youth Will Long Outlive The Misguided Officials Carrying It Out!
  3. ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!
  4. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!

TRAC: US IMMIGRATION COURT BACKLOG CONTINUES TO GROW! — MORE JUDGES + GONZO ENFORCEMENT + GROSS MISMANAGEMENT = LESS DUE PROCESS!

http://trac.syr.edu/whatsnew/email.170831.html

 

“Immigration Court Backlog Climbs to 617,527 Cases
(31 Aug 2017) The latest available case-by-case court records show that as of the end of July 2017, the Immigration Court’s backlog continued to rise , reaching an all-time high of 617,527. For the first time, individuals with pending cases from El Salvador surpassed the numbers from Mexico in the court’s pending workload. There were a total of 134,645 pending cases involving citizens of El Salvador, edging past the 134,467 cases involving individuals from Mexico. In third place, with 102,532 pending cases were citizens from Guatemala.California continued to have the largest backlog with 115,991 cases pending at its court locations. Texas was second with 99,749 pending cases, followed by New York with 84,429. Both California and New York are continuing to see rising court backlogs. In contrast, court locations in Texas saw a small decline in July.

To see a snapshot of pending cases in Immigration Courts go to:

http://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php

To drill further into these numbers, by nationality, court and hearing location go to the backlog tool at:

http://trac.syr.edu/phptools/immigration/court_backlog/

In addition, many of TRAC’s free query tools – which track the court’ backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through July 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl”

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

According to rumors, under pressure from GOP State AGs and others in the White Nationalist base, the Trumpsters are close to terminating the DACA, thereby sending an additional 800,000 American young people into the already overwhelmed US Immigration Court system. See Jason Dzubow’s recent Asylumist post on the “100 year plan” to understand the cruel, wasteful, racist “parallel universe” in which the Trumpsters reside!

PWS

09-01-17

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!
  3. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  4. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?

ATTN RETIRED US IMMIGRATION JUDGES: EOIR Wants YOU!

Here is the link from OCIJ with complete information. Good luck!

 

https://www.justice.gov/legal-careers/job/immigration-judge-1

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

Seems like a good idea (and one that most past Administrations have failed to take advantage of — I was able to use it at the BIA when I was Chair).

REMEMBER, DUE PROCESS FOREVER!

PWS

08-30-17

Related posts:

  1. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  2. GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!
  3. PACIFIC STANDARD: The Call For An Independent Article I U.S. Immigration Court Gets Louder! — Systemic Failure Of Due Process “At The Retail Level” Threatens Our Entire Justice System! — “Just one day observing in immigration court would highlight how inherently unfair the system can really be for someone fighting for their case.”
  4. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report

RECENT UNPUBLISHED REMANDS FROM 3RD & 2D CIRCUITS SHOW HOW BIA TILTS FACTS & LAW TO DENY PROTECTION TO CENTRAL AMERICAN REFUGEES

HOW THE BIA UNFAIRLY DENIES PROTECTION TO CENTRAL AMERICAN REFUGEES WHILE ENCOURAGING U.S. IMMIGRATION JUDGES TO DO THE SAME

By Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Two recent (alas unpublished) decisions from the Third and Second Circuits illustrate a key point that the Hon. Jeffrey Chase and I have made in our prior blogs: too often the BIA goes out of its way to bend the law and facts of cases to deny asylum seekers, particularly those from Central America, the protection to which they should be entitled. The BIA’s erroneous interpretations and applications of the asylum law have a corrupting effect on the entire fair hearing system in the U.S. Immigration Courts and the DHS Asylum Offices.

See:

http://immigrationcourtside.com/2017/08/13/analysis-by-hon-jeffrey-chase-bia-once-again-fails-refugees-matter-of-n-a-i-27-in-dec-72-bia-2017-is-badly-flawed/

http://immigrationcourtside.com/2017/06/03/introducing-new-commentator-hon-jeffrey-chase-matter-of-l-e-a-the-bias-missed-chance-original-for-immigrationcourtside/

http://immigrationcourtside.com/2017/08/14/politico-highlights-lack-of-due-process-cultural-awareness-proper-judicial-training-in-u-s-immigration-courts-handling-of-vietnamese-deportation-case/

http://immigrationcourtside.com/2017/08/11/4th-circuit-shrugs-off-violation-of-refugees-due-process-rights-mejia-v-sessions/

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

http://immigrationcourtside.com/2017/07/31/u-s-immigration-courts-apear-stacked-against-central-american-asylum-applicants-charlotte-nc-approval-rates-far-below-those-elsewhere-in-4th-circuit-is-precedent-being-misapplied/

 

Aguilar v. Attorney General, 3d Cir., 08-16-17

163921np

What happened:

Aguilar credibly testified that he was extorted by MS-13 because he was a successful businessman. Aguilar publicly complained to neighbors about the gang and said he would like them exterminated. Thereafter, the gang told him that because he had complained, they were doubling the amount of their extortion to $100 and would kill his family if he didn’t comply. Eventually, the gang increased the demand to $500 and threatened Aguilar at gunpoimt. Aguilar left the country and sought asylum in the U.S.

What should have happened:

Aguilar presented a classic “mixed motive” case.  In a gang-ridden society like El Salvador, public criticism of  gangs is a political opinion. This is particularly true because gangs have infiltrated many levels of government. Indeed in so-called “peace negotiations,” the Salvadoran government treated gangs like a separate political entity.

Undoubtedly, the gang’s increased extortion combined with death threats against Aguilar and his family resulted from his public political criticism of the gangs. Indeed, they told him that was the reason for increasing the amount to $100. There also is no doubt that gangs are capable of carrying out threats of harm up to the level of death and that the Salvadoran government is often unwilling or unable to protect its citizens from gangs.

Consequently, the respondent has established a well-founded fear (10% chance) of future persecution. He has also shown that political opinion is at least one central reason for such persecution. Consequently, Aguilar and his family should be granted asylum.

What actually happened:

The Immigration Judge denied Aguilar’s claim, finding  that Aguilar’s statements were not made “in a political context” and also that the increased extortion and threats of harm were motivated by “pecuniary interest or personal animus” not a political opinion. The BIA affirmed on appeal.

What the Third Circuit said:

“Nothing in this exchange indicates that Aguilar believed that MS continued asking him for money “over the years” solely because he was a business owner or that their motive did not evolve over time. Rather, Aguilar’s earlier testimony stated that after he had made his negative statements about MS, “a few days pass, less than a week, when I have them back, and three of them came, and they said, we heard that you talked badly about us, and because you did that we are going to charge you $100 a week from now on, and if you don’t pay that we are going to kill your family.” (A.R. 171 (emphasis added).) In other words, Aguilar testified that the gang specifically cited his statements as the reason why it was increasing his payments. This runs contrary to the BIA’s conclusion

that his testimony “did not indicate a belief that he was targeted on account of any beliefs, opinions, or actions,” (App. 10), and directly supports his mixed motive argument. Despite affirming the IJ’s determination that Aguilar was credible, (App. 10), the BIA failed to acknowledge this important portion of Aguilar’s testimony. Instead, both the BIA and IJ determined that Aguilar had failed to show that his increased extortion payments and threats were the result of a protected ground rather than the pecuniary interest or personal animus of MS. However, the BIA has recognized that [p]ersecutors may have differing motives for engaging in acts of persecution, some tied to reasons protected under the Act and others not. Proving the actual, exact reason for persecution or feared persecution may be impossible in many cases. An asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. In Re S-P-, 21 I. & N. Dec. 486, 489 (B.I.A. 1996). As such, “an applicant does not bear the unreasonable burden of establishing the exact motivation of a ‘persecutor’ where different reasons for actions are possible.” Id. While we must affirm factual determinations unless the record evidence would compel any reasonable factfinder to conclude to the contrary, Aguilar’s credible testimony supports his assertion that the increased payments were, at least in part, the result of his negative statements. Requiring him to show that the MS members were motivated by his membership in the particular social group of persons who have spoken out publicly against the MS and who have expressed favor for vigilante organizations, rather than personal animus because of those statements, would place an unreasonable burden on Aguilar. There is no clear delineation between these two motives, and there is

no additional evidence that we can conceive of that would allow Aguilar to hammer down the gang members’ precise motivations, short of their testimony. Rather, the immediacy with which the gang increased its demands coupled with its stated reason for the increase leads us to conclude that any reasonable fact finder would hold that Aguilar had demonstrated that the increased demands were at least in part motivated by his statements.

The question now becomes whether Aguilar’s statements were a political opinion or if they indicated his membership in a particular social group. The IJ determined that Aguilar’s criticism of MS was not made in a political context, and the BIA affirmed. (App. 2, 24 n.3.) However, neither the IJ nor the BIA provided reasoning to support this finding. Similarly, the IJ determined that Aguilar’s proposed particular social groups were not sufficiently particular or socially distinct. (App. 24 n.3.) Again, no reasoning was given. The BIA declined to weigh in on the issue because it found that Aguilar had not met his burden of showing a nexus between the persecution and a protected ground. Thus, we will vacate and remand the issue to the BIA to review whether Aguilar’s proposed groups are sufficiently particular or distinct, and to provide a more detailed review of whether his statements were a political opinion. Aguilar’s application for withholding of removal should similarly be reevaluated in light of our guidance.”

Martinez-Segova v. Sessions, 2d Cir., 08-18-17

http://www.ca2.uscourts.gov/decisions/isysquery/c0292714-4831-4fb8-b31e-c1269886a55b/1/doc/16-955_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c0292714-4831-4fb8-b31e-c1269886a55b/1/hilite/

What happened:

Martinez-Segova suffered domestic abuse at the hands of her husband. She suffered harm rising to the level of past persecution on account of a particular social group. However, the DHS claims that the Salvadoran government is not unwilling or unable to protect Martinez-Segova because she obtained a protective order from a court. After the protective order was granted the respondent’s husband “violated the order with impunity by showing up to her place of work kissing and grabbing her and begging her to return.”

According to the U.S. State Department,

“Violence against women, including domestic violence, was a widespread and serious problem. A large portion of the population considered domestic violence socially acceptable; as with rape, its incidence was underreported. The law prohibits domestic violence and generally provides for sentences ranging from one to three years in prison, although some forms of domestic violence carry higher penalties. The law also permits restraining orders against offenders. Laws against domestic violence were not well enforced, and cases were not effectively prosecuted.”

Martinez-Segova also submitted lots of documentary evidence showing “the Salvadoran government’s 13 inability to combat domestic violence.”

What should have happened:

Martinez-Sevova has a “slam dunk” case for asylum.  The Government’s argument that Salvador can protect her is basically frivolous. The Salvadoran government in fact was unable to protect the respondent either before or after the protective order. The State Department Country Report combined with the expert evidence show that the Salvadoran government t has a well-established record of failure to protect women from domestic violence.

The idea that the DHS could rebut a presumption of future persecution based on past persecution by showing fundamentally changed circumstances or the existence of a reasonably available internal relocation alternative is facially absurd in the context of El Salvador.

What really happened:

Incredibly, the Immigration Judge denied Martinez-Segova’s claim, and the BIA affirmed. The BIA made a bogus finding that Martinez-Segova failed to show that the Salvadoran government was unwilling or unable to protect her.

What the Secomd Circuit said:

“We conclude that the agency failed to sufficiently consider the country conditions evidence in analyzing whether Martinez-Segova demonstrated that the Salvadoran government was unable or unwilling to protect her from her husband. The BIA relied heavily on the fact that Martinez-Segova failed to report her husband’s violation of the protective order to the police. The agency’s decision in this regard was flawed. Where, as here,“the IJ and BIA ignored ample record evidence tending to show that”authorities are unwilling and unable to  protect against persecution, we need not decide “whether [a petitioner’s] unwillingness to confront the police is fatal to [her] asylum claim.” Pan v. Holder, 777 F.3d 540, 544-45 (2d Cir. 2015); see also Aliyev v. Mukasey, 549 F.3d 111, 118 (2d Cir. 2008) (declining to determine “precisely what a person must show in order for the government to be deemed responsible for the conduct of private actors” where petitioner “introduced enough evidence to forge the link between private conduct and public responsibility” (emphasis added)).

Although the agency does not have to parse each individual piece of evidence, Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007), there is no indication that the agency considered the ample record evidence of the Salvadoran government’s inability to combat domestic violence—a phenomenon that the U.S. State Department deems one of El Salvador’s “principal human rights problems” for which its efforts to ameliorate the problem are “minimally effective.” A declaration from an human rights attorney and expert on gender issues in El Salvador reveals that orders of protection, while difficult to procure, “do little to protect victims from further violence because judges often draft them inadequately and law enforcement officials neglect or refuse to enforce them” and “are little more than pieces of paper affording no more protection than the victims had prior to the legal process.” Where orders of protection are issued, the onus is on the government to ensure compliance; for example, judges are required to appoint an independent team to monitor compliance with orders of protection and that inadequate follow up “frequently renders victims of domestic violence virtually helpless to enforce their rights.” There is no indication that that judge did this in Martinez-Segova’s case. Moreover, the order of protection prohibited Martinez-Segova’s husband from “harassing, stalking, [and] intimidating” her, but her husband nonetheless violated the order with impunity by showing up to her place of work, kissing and grabbing her and begging her to return. Because the agency’s conclusion—that Martinez- Segova failed to establish that the Salvadoran government was unable or unwilling to protect her from her husband because she had been able to obtain a protective order —is in tension with the record evidence demonstrating that such orders are largely ineffective, we grant the petition and remand for consideration of this evidence. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“Despite our generally deferential review of IJ and BIA opinions, we require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.”). Because remand is warranted for the agency to consider whether Martinez-Segova established past persecution, we decline to reach its humanitarian asylum ruling at this time. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). Moreover, the BIA did not address the IJ’s conclusion that the Government rebutted Martinez-Segova’s well-founded fear of persecution, and that determination generally precedes an analysis on whether humanitarian asylum is warranted. See 8 C.F.R. § 1208.13(b)(1)(B)(iii) (humanitarian asylum is generally considered “in the absence of a well-founded fear of persecution”).”

CONCLUSION

The BIA and the Immigration Judges made an incredible number of serious errors in these two cases, from misreading the record, to ignoring the evidence, to botching the law.

So, while DOJ and EOIR are patting each other on the back for becoming such great cogs in the Trump deportation machine, and racing removals through the system, the real results are starkly illustrated here. Every day, vulnerable asylum applicants with sound, well-documented claims that should be quickly granted either at the Asylum Office or on an Immigration Court’s “short docket” are being screwed by the BIA’s failure to protect the rights of asylum seekers and to educate and in some cases force Immigration Judges to do likewise.

The Federal Courts are being bogged down with cases that a third-year law student who has had a course in asylum law could tell have been badly mis-analyzed. The idea that EOIR contains the world’s best administrative tribunals dedicated to guaranteeing fairness and due process for all has become a cruel joke.

Our Constitution and laws protecting our rights are meaningless if nobody is willing and able to stand up for the rights of individuals who are being railroaded through our system. We saw this in the era of Jim Crow laws directed at depriving Black Americans of their rights, and we are seeing it again today with respect to migrants caught up in the Trump Administration’s gonzo enforcement program.

Yeah, today it’s not you or me. But, when you or I need justice, why will we get (or deserve) any better treatment than the farce that the Trump Administration and EOIR are unloading on migrants now?

PWS

08-27-17

 

 

 

 

 

 

 

 

 

 

 

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!
  3. VIEWS YOU CAN USE: SOPHIA GENOVESE SETS FORTH A BLUEPRINT FOR LEGAL RESISTANCE TO WHITE NATIONALIST XENOPHOBIA & SESSIONS’S ASSAULT ON HUMAN RIGHTS & THE RULE OF LAW FOR ASYLUM SEEKERS!
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

HERE IS THE HUMAN FACE OF HOMAN’S GONZO ENFORCEMENT POLICIES: RUINED LIVES, INTENTIONAL CRUELTY, WASTED RESOURCES, MISSED OPPORTUNITIES, & A DIMINISHED AMERICA!

https://www.washingtonpost.com/local/immigration/he-had-a-college-scholarship-but-was-deported-now-the-former-soccer-star-must-build-a-life-in-el-salvador/2017/08/21/743d1c12-8368-11e7-b359-15a3617c767b_story.html?utm_term=.c705a02c768b&wpisrc=nl_buzz&wpmm=1

Maria Sacchetti reports in the Washington Post:

“SAN SALVADOR — Lizandro Claros Saravia was supposed to be at college in North Carolina by now. At soccer practice. At the library.

Instead, the 19-year-old soccer star from Germantown, Md., is hundreds of miles away, in a sweltering Central American nation he barely recognizes and sometimes fears.

U.S. immigration officials swiftly deported him and his older brother, Diego, on Aug. 2, days after Lizandro told them during a routine check-in that he had a scholarship to attend Louisburg College.

“I don’t know what we’re going to do,” Lizandro, his gaze flat, said in an interview here last week as he and his brother waited to pick up their 83-year-old grandfather — who had been visiting the United States on a visa when his grandsons were deported — from the airport. “I feel like in this country, I don’t have a future.”

The expulsion of the brothers, both of whom graduated from Quince Orchard High School in Gaithersburg and neither of whom had been accused of any wrongdoing once in the United States, outraged Democratic lawmakers and advocates for immigrants, as well as their teachers, friends and teammates.


The expulsion of Lizandro Claros Saravia, 19, left, and his older brother, Diego Claros Saravia, 22, has outraged Democratic lawmakers as well as their teachers and friends. (Sarah L. Voisin/The Washington Post)

Lizandro and Diego, now 22, used fraudulent visas and passports to come to the United States in 2009 and reunite with their family; some of whom were also here illegally. Lizandro was 10, according to Immigration and Customs Enforcement; his brother was 14.

They were ordered deported in 2012 and granted a stay in 2013. Two subsequent requests for stays were denied. But with their clean records and high school diplomas, the brothers were not a priority for deportation under the Obama administration.

Under President Trump, however, the “handcuffs” are off, in the words of ICE Acting Director Thomas Homan. Anyone in violation of immigration law can be targeted for deportation. Officials say that they want to reduce the United States’s population of undocumented immigrants, currently about 11 million, and dissuade would-be migrants from making the illegal, and sometimes deadly, journey north.

Critics say that the Trump administration’s approach is robbing the United States of talented and dedicated immigrants, and endangering Americanized young people by sending them to their now-unfamiliar homelands without their families.

Rep. John Delaney (D-Md.) blasted ICE for deporting the brothers to El Salvador, which he called one of the “most violent countries in the world.” Montgomery County Executive Isiah Leggett (D) said “ICE should be ashamed of itself.”

Lizandro Claros Saravia played with Bethesda Soccer Club for four years, which helped him earn a scholarship to Louisburg College in North Carolina. (Bethesda Soccer Club)

Lizandro’s teammates at the Bethesda Soccer Club — he calls them his “brothers” — have taken up a collection in hopes of helping him someday realize his dream to become the first in his family to earn a college degree.

The brothers say they miss everyone from their lives in Maryland, especially their parents and two siblings, friends and the staff at the Guapo’s — a restaurant where they had family dinners — just off I-270 in Gaithersburg. They don’t go out much now because they don’t think it is safe.

Instead, they stay in their new home, a pair of neighboring dwellings that Lizandro and Diego share with their aunts and uncle in a village of roughly 1,000 people outside of Jucuapa. Last year, Reuters cited that city as a place where the coffin-making business has taken off, partly fueled by the high homicide rates.

The rules are that Lizandro and his brother stay in constant touch with their aunts and uncle, unless they all travel somewhere together. At night, they sleep in one of their aunt’s houses, with bars on the windows and guard dogs at the door.

The brothers say they are trying to blend into their new country, but they clearly stand out. At the airport this week, they towered over the crowd, dressed as if they’d been plucked from an American shopping mall.

Diego wore a T-shirt emblazoned with the initials “USA.” Lizandro wore Top-Siders, shorts and a shirt decorated with tiny sunglasses. He speaks English better than Spanish. He wouldn’t recognize the president of El Salvador if he saw him on the street.

“To be honest, I don’t feel good being here,” he said. “People are looking at me different. . . . All my friends from when I was young, they barely know me now.”


From left, Gustavo Torres, executive director of CASA de Maryland, speaks at a news conference denouncing the deportation of Lizandro and Diego Claros Saravia. Their mother, Lucia Saravia, is comforted by their older sister Fatima Claros Saravia and their father, Jose Claros Saravia. (Sarah L. Voisin/The Washington Post)

Asked about the possibility of going to college in El Salvador, Lizandro said, “I don’t know if I can do that here. It’s hard to go from the bottom all the way to the top again.”

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

If there is any good news here, it’s that “ordinary folks” in American communities are being exposed to and personally affected by the wastefulness and mindless cruelty of the current U.S. immigration laws. Hopefully, at some point in the future, this will result in the individuals who advocate, perpetuate, and maintain this system (in some cases actually trying to make it even worse) being tossed from office and replaced with more rational legislators and executives who have both human decency and America’s long term best interests in mind. Perhaps not likely in my lifetime. But, eventually, if the U.S. is to survive, it must happen.

PWS

08-22-17

Related posts:

  1. TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!
  2. PREVENTABLE HUMAN DISASTER: THE WANTON CRUELTY, WASTEFULNESS, & TOTAL STUPIDITY OF THE TRUMP/SESSIONS “GONZO” IMMIGRATION ENFORCEMENT PROGRAM PORTRAYED IN GRAPHIC HUMAN TERMS — The Damage To America Of Mistreating Our Families & Our Citizen Youth Will Long Outlive The Misguided Officials Carrying It Out!
  3. ACTING ICE DIRECTOR HOMAN PLEDGES MORE REMOVALS — CLAIMS SUCCESS — ACTUAL FIGURES TELL A DIFFERENT STORY — CRIMINAL REMOVALS ACTUALLY DOWN — GAINS ACHIEVED BY MANIPULATING PRIORITIES, DEPORTING NON-CRIMINALS — “LOW HANGING FRUIT!”
  4. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!

TRUMP ADMINISTRATION ENDS PAROLE PROGRAM FOR CENTRAL AMERICAN YOUTHS!

https://www.nytimes.com/2017/08/15/us/trump-central-american-refugees.html?action=click&contentCollection=us&module=NextInCollection®ion=Footer&pgtype=article&version=newsevent&rref=collection%2Fnews-event%2Fdonald-trump-white-house

The NYT reports:

“The Trump administration is cutting off an Obama-era pathway to the United States for young migrants fleeing violence in Central America, further narrowing the options for thousands of people hoping to seek refuge here as the White House moves to tighten immigration rules.

As of Wednesday, the Department of Homeland Security is ending a program begun in 2014 that gave some children and young adults who failed to qualify for refugee status permission to enter the United States to live and work on a temporary basis, known as parole.

The agency said it was doing so in response to President Trump’s January executive order on immigration, which directed officials to exercise much more selectively their authority to admit immigrants outside normal legal channels. The Trump administration has also tried to hold back the high tide of young Central American migrants by intensifying immigration enforcement within the country and even seeking out their parents who are in the United States illegally, and arresting them.

“Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and that applicant merits a favorable exercise of discretion,” the department said in its announcement, which is to be published in the Federal Register on Wednesday. “Any alien may request parole to travel to the United States, but an alien does not have a right to parole.”

Under the Obama administration, the program was established as a way to deal with a relentless surge of children from El Salvador, Honduras and Guatemala arriving at the southern border without adults. While the administration had tried to discourage migrants from making the dangerous journey at all, the initiative was an acknowledgment that that strategy was not thinning the flow.

. . . .

Lisa Frydman, the vice president for regional policy and initiatives for Kids in Need of Defense, a group in Washington that provides legal assistance to unaccompanied immigrant children, said the decision to shut down the parole option would drum up more business for the smuggling networks that Mr. Trump has vowed to dismantle.

“It is not a surprise, but it is a disgrace,” she said. “This is the Trump administration completely turning its back on Central American children, slamming the door on them.”

For the 2,714 people in the process of applying to the program, gaining what is known as conditional parole status, the future is hazier. Their conditional approvals will be revoked. Some, after being interviewed by refugee officers, may qualify as full-blown refugees. The rest may ask for parole individually, according to the announcement, but the agency will no longer automatically consider them for parole.

No one has entered the United States through the program since February, when the Department of Homeland Security put it on hold while officials reviewed what Mr. Trump’s executive order would mean for it, Mr. Langston said.

Ms. Frydman’s organization has three cases in which the child began the application process but has not been able to travel to the United States. In one case, two siblings applied; one was granted refugee status and the other conditional parole. The refugee is free to come; the parolee is not.

In another case, the mother had already bought the plane ticket for her child, who had received conditional parole.

“It’s so cruel,” Ms. Frydman said.”

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Read the entire article at the link.

Mindless cruelty is one of the specialties of the Trump Administration.

PWS

08-15-17

Related posts:

  1. CHILD ABUSE: COWARDLY ADMINISTRATION USES FALSE NARRATIVES & DISTORTED FACTS TO ATTACK PROTECTIONS FOR REFUGEE CHILDREN — Our National Morality & Human Decency In Free-fall Under Trump! — “It has been national law and policy that as adults we look out for children …. No longer.”
  2. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  3. NYT: NO, THIS ISN’T OUT OF A CHARLES DICKENS NOVEL – IT’S ABOUT HOW KIDS ARE TREATED IN JEFF SESSIONS’S “AMERICAN KIDDIE GULAG” – “[T]he environments range from impersonally austere to nearly bucolic, save for the fact that the children are formidably discouraged from leaving and their parents or guardians are nowhere in sight.”
  4. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

EXPOSED: DHS INSPECTOR GENERAL SHOWS TOTAL INSANITY OF TRUMP’S PROPOSALS TO ADD 15,000 UNNECESSARY IMMIGRATION ENFORCEMENT AGENTS! — Would Require “Vetting” Of 1.25 Million Applicants! –“Neither [U.S. Customs and Border Protection] nor [ICE] could provide complete data to support the operational need or deployment strategies for the additional 15,000 agents and officers!”

https://www.washingtonpost.com/politics/trump-plan-to-hire-15000-border-and-immigration-personnel-isnt-justified-federal-watchdog-says/2017/08/02/c9345136-77a1-11e7-8839-ec48ec4cae25_story.html?utm_term=.af47cea49a62

Lisa Rein reports for the Washington Post:

“President Trump’s plan for an aggressive hiring surge of 15,000 Border Patrol and immigration personnel to help keep out undocumented immigrants is unrealistic — and the Department of Homeland Security has not made a case for it, the agency’s watchdog says.

A report released this week by the DHS inspector general concludes that based on its rigorous screening requirement for law enforcement jobs and the relatively high rate of attrition among Border Patrol agents, Homeland Security would have to vet 750,000 applicants to find 5,000 qualified personnel.

In addition, to hire the 10,000 Immigration and Customs Enforcement (ICE) agents the president called for in executive orders he issued in his first days in office, a pool of 500,000 candidates would need to apply, auditors found.

The report calls into question whether DHS officials even need 15,000 new hires to target undocumented immigrants. Agency leaders have done such poor planning for what their workforce should look like, with an understaffed, poorly trained human resources operation, that they cannot justify thousands of new employees, the report says.

“Neither [U.S. Customs and Border Protection] nor [ICE] could provide complete data to support the operational need or deployment strategies for the additional 15,000 agents and officers,” the report by the office of Inspector General John Roth said.

[Read the inspector general’s report here]

DHS officials told auditors that they are still three to four years from getting a system in place that will be able to tell them how many new personnel they need and where to deploy them.

“Without comprehensive staffing models, operational needs analyses, and deployment strategies, CBP and ICE will not be able to identify clearly the correct number and type of employees required, what positions must be filled, or where to deploy those employees,” the report said.

Trump promised on the campaign trail to vastly beef up enforcement against undocumented immigrants with a new border wall, a surge in agents to help seal off the Southwest border with Mexico and a “deportation force” to arrest people in the country illegally. The 15,000 new front-line employees would come with almost 9,600 more technical and support staff, the report said.”

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

Read Rein’s complete article and get a link to the IG’s report at the above link.

More fraud, waste, and abuse from the “Fraudster In Chief.” For a fraction of the money Trump & Co propose to squander, we could build a first-class U.S. Immigration Court system that would be a model of due process and fairness and would contribute much more to fair, efficient, and effective enforcement of the immigration laws.

PWS

08-03-17

Related posts:

  1. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  2. MARIA SACCHETTI IN WASHPOST: INSIDE THE “NAG” (NEW AMERICAN GULAG) — CRUEL, INHUMAN, DEGRADING TREATMENT APPEARS TO BE WIDESPREAD IN SO-CALLED “CIVIL” IMMIGRATION DETENTION! — Where’s The Outrage? — Where’s The Congressional Oversight? — Why Aren’t Guys Like “Gonzo” & Homan Who Knowingly Promote Violations Of Legal & Human Rights As (Unlawful) “Immigration Deterrence” Under Investigation For Their Roles In Violating Human, Constitutional Rights!
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FROM THE “CHASE ARCHIVES:” 24 Years Ago, Jeffrey Chase Stood Up For The Rights Of Asylum Seekers, Due Process, And American Values — H.R. 391 Is A Mindless Recycling Of The Same Horrible Ideas That Chase Opposed Then — Have We Learned Nothing In The Interim?

https://www.jeffreyschase.com/blog/2017/8/3/from-the-archives-my-wall-st-journal-op-ed-sept-9-1993

Jeffrey wrote;

“Last week, the House marked-up H.R. 391, the “Asylum Reform and Border Protection Act of 2017.”  The bill would create significant obstacles for asylum seekers, and increase the risk to unaccompanied children fleeing harm.  Provisions of the bill caused me to think of an op-ed I had written 24 years ago, which was published in The Wall Street Journal.  A different bill, a different President, but many of the same arguments apply.  So many years later, I still become emotional when I remember, as we stepped out of the airport terminal, the little girl excitedly crying out in Farsi: “Maman, azad shodim, azad shodim!” (“Mommy, we’re free, we’re free!)

 

 

‘Mommy, We’re Free!’ — In Defense of Asylum Rights

By Jeffrey S. Chase

 

Five years ago I met Goli (not her real name), a three-year-old Iranian girl detained by the Immigration and Naturalization Service.  Goli’s parents were political opponents of the Ayatollah Khomeini’s government.  Her father was missing in Iran, either killed or imprisoned.  Goli and her mother were forced to seek refuge in, of all places, Iraq.  They had spent the last two years in a camp there.  Goli was small for her age and sickly; she needed surgery unavailable to her in Iraq.  She had never had a real home, or even her own doll.

When Iraq’s war with Iran ended, Goli and her mother were expelled by Saddam Hussein.  They could not return to Iran, where the war’s end was celebrated with the arrests of hundreds of members of the mother’s opposition party.  With little money and nowhere else to go, the mother paid a smuggler to get her and her child to the U.S. with a false passport.  There, they would apply for asylum.  A relative of her husband’s, a physician living in Michigan, would help them settle and arrange for Goli’s much needed medical care.

Goli and her mother were detained on arrival at Kennedy Airport by the INS.  They were immediately scheduled for a hearing before an immigration judge; I was their attorney.  When we met, Goli had a high fever.  A doctor had prescribed antibiotics, but the security guards had not found time to purchase them.  A week later, when she had taken the antibiotics that I insisted be provided, she felt better, and a friendlier captor played with the girl, using her handcuffs as a makeshift toy.

Thanks to the rights afforded by our current asylum laws, Goli and her mother were released after a few weeks to live with their relatives in Michigan.  When her mother carried Goli outdoors for the first time, she cried, “Mommy, we’re free!”

Representing asylum seekers entails much work and aggravation with little or no pay.  The reward is a happy ending.  I have known nearly 100 others like Goli and her mother who have found refuge here in the U.S., away from the terror and chaos reigning in their home countries.  But recently, President Clinton announced legislation, sponsored by Sen. Edward Kennedy (D., Mass.), that would end such happy endings.  Reacting to a “crisis” that doesn’t exist, he has decided to show his political toughness by going after the world’s most vulnerable group, refugees.

Under the president’s bill, asylum seekers arriving here without proper documents will have no right to a lawyer, or a hearing, or an appeal.  The bill ignores the fact that many refugees are forced to escape their homelands without valid papers because there is no time to obtain them or because applying for and carrying the proper documents is too dangerous.

There are other troubling provisions.  According to the new bill, if refugees escaping certain death at home try fleeing to the U.S. aboard a plane that stops in Germany, for example, they would immediately be deported to Germany–even if they never stepped off the plane there.  This provision is similar to one in many Western European nations, whereby refugees are expected to apply for asylum in the first “safe” country they reach.  But sending refugees back to a country where they were “last present” is no guarantee that they will not be deported to their nation of origin.

As an immigration attorney, I’ve heard hundreds of asylum claims: in my office and in detention centers, in courts and airport terminals.  Asylum seekers are not terrorists; they are people like Goli and her mother.  Nor are they statistics; they are flesh and blood.  This phrase takes on added meaning when the flesh is marked with bullet wounds, cigarette burns and other remnants of torture.

I can still see the Afghan teenager, much of whose face was blown off by a Soviet land mine.  I still hear the Muslim man from Bosnia, who wept as he told me how Serbian troops stopped the United Nations bus he rode.  He was spared only when the would-be executioners discovered that the bus was leaving the country, thus assisting them in their “ethnic cleansing.”  After finally escaping Bosnia, he stopped briefly in another country en route to the U.S.  The Clinton legislation would deport him, and similarly the Liberian boy I met who told me how he survived a massacre by a rival clan by lying still among the corpses until the attackers left.

Even some who are sympathetic to such cases may feel that the U.S. cannot accept all of the world’s refugees.  We don’t.  There are 17 million refugees in the world.  Of the 300 million aliens the INS inspected last year at ports of entry, only 15,000 applied for asylum.  This means that 0.005% of the people who sought admission to the U.S. were asylum applicants.  Ironically, such exemplars of human rights as Iran and Pakistan accept far more.  Contrary to media reports, we have not “lost control of our borders” to “teeming hordes” of asylum seekers.  While some individuals abuse the system, their number is too small to justify all the ills assigned to them by nativist organizations.

Under the proposed legislation, if refugees somehow managed to reach the U.S. directly, they would have to present their cases on the spot at the airport to a junior level INS official.  The asylum seeker would have no right to compile evidence supporting their requests for asylum, call witnesses, or even consult a lawyer.  If this legislation becomes law, a person fighting a parking ticket would have more rights in our country than a Muslim fleeing certain death in Bosnia.

The answer to the asylum question is not to turn away genuine refugees.  Administrative improvements to preserve legal protections for refugees are urgently needed.  More asylum officers and faster and fairer processing of asylum cases would eliminate any instances of abuse.  They would also make possible more happy endings for the world’s future Golis.

 

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H.R. 391 is simply appalling in its false premises and its ignorance about what really happens in the U.S. asylum system.  And, make no mistake about it — even without the “gonzo” proposals contained in H.R. 391, we are knowingly and intentionally sending plenty of innocent folks back to countries in the Northern Triangle to be preyed upon by gangs, corrupt governments, or both, too many without receiving even the trappings of real due process.  Why not fix the due process problems in the current asylum system, rather than trying to further diminish the already limited rights of asylum seekers? For a fraction of the money Trump & Co. propose to waste on unneeded additional enforcement agents and an idiotic border wall, the asylum system could be fixed to run smoothly, efficiently, and fairly!
PWS
08-03-17

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4th CIRCUIT REJECTS FAMILY BASED CLAIM — INTRAFAMILY DISPUTE — IN SOP, JUDGE WILKINSON SHOWS LOTS OF LOVE FOR L-E-A- — VELASQUEZ V. SESSIONS

http://www.ca4.uscourts.gov/Opinions/Published/161669.P.pdf

Key quote:

“Although the familial relationships at issue in Hernandez-Avalos and the present case involve a mother’s relationship with her son, this case is unlike Hernandez-Avalos in critical respects. In Hernandez-Avalos, a non-familial third party persecuted the petitioner because of her family association for the purpose of gang recruitment. In contrast, Velasquez had a long-standing personal disagreement with Estrada over a solely personal conflict regarding D.A.E.V. Estrada’s persecution of Velasquez was only between the two of them—that is, merely incidental to Estrada’s desire to obtain custody of D.A.E.V.5 “[T]he asylum statute was not intended as a panacea for the numerous personal altercations that invariably characterize economic and social relationships.” Saldarriaga v. Gonzales, 402 F.3d 461, 467 (4th Cir. 2005). Because Estrada was motivated out of her antipathy toward Velasquez and desire to obtain custody over D.A.E.V., and not by Velasquez’ family status, Hernandez-Avalos does not provide the rule here. The IJ and BIA appropriately concluded that Estrada’s motive was not

5 Nor, as Velasquez suggests, does Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), control. There, the BIA considered whether “married women in Guatemala who are unable to leave their relationship” constituted a cognizable particular social group for asylum relief. Id. at 392. The legal validity of the social group identified by Velasquez is not at issue in this case. Moreover, A-R-C-G does not bear on our nexus analysis because, there, the Government “concede[d] . . . that the mistreatment [suffered by the alien] was, at for at least one central reason, on account of her membership in a cognizable particular social group.” Id. at 395.

10

Velasquez’ familial status, but simply a personal conflict between two family members seeking custody of the same family member. That factual conclusion is fully supported by the record and not clearly erroneous. Abdel-Rahman, 493 F.3d at 448 (“The decision[] of the BIA concerning asylum . . . [is] deemed conclusive if supported by reasonable, substantial and probative evidence on the record considered as a whole.” (internal quotation marks omitted)). Thus, substantial evidence supports the IJ’s conclusion that Velasquez simply failed to show that family status was a reason, central or otherwise, for her difficulties. See Hernandez-Avalos, 784 F.3d at 949.

For similar reasons, this case also is unlike the recent decision in Cruz v. Sessions, 853 F.3d 122 (4th Cir. 2017). In Cruz, the petitioner, a Honduran national, applied for asylum based on her membership in a “particular social group,” namely the “nuclear family of [her husband,] Johnny Martinez.” Id. at 124–25. Martinez had been killed by his boss, who worked closely with organized crime groups, ostensibly after Martinez had discovered his boss’ illicit business and tried to go to authorities. See id. After Martinez’ death, Cruz confronted Martinez’ boss, who repeatedly threatened her and stationed his criminal associates outside of Cruz’ home. See id. at 125–26. Cruz fled to the United States, where she was detained and issued a Notice to Appear. When Cruz later claimed asylum, an IJ denied her petition, observing that her dispute with Martinez’ boss was a dispute with a “private actor for personal reasons.” Id. at 126–27. We reversed, relying on Hernandez-Avalos and concluding that the IJ, and subsequently the BIA, applied an “excessively narrow interpretation of the evidence relevant to the statutory nexus requirement” and that Cruz had satisfied her burden of proof by demonstrating that she

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more likely than not was targeted “because of [her] relationship with her husband.” Id. at 129–30.

Velasquez’ case is inapposite. The dispute between Velasquez and Estrada was a private and purely personal dispute between grandmother and mother regarding D.A.E.V. Velasquez specifically testified to that fact. Unlike Cruz or Hernandez-Avalos, this case does not involve outside or non-familial actors engaged in persecution for non-personal reasons, such as gang recruitment or revenge. Rather, this case concerns solely a custody dispute between two relatives of the same child and necessarily invokes the type of personal dispute falling outside the scope of asylum protection. See Huaman-Cornelio, 979 F.2d at 1000; Jun Ying Wang, 445 F.3d at 998–99.

For all these reasons, Velasquez did not meet her burden of showing persecution “on account of” a protected ground.”

PANEL: CIRCUIT JUDGES WILKINSON, TRAXLER, and AGEE

OPINION BY: JUDGE AGEE

CONCURRING OPINION:  JUDGE WILKINSON

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

The majority opinion did not rely on the BIA’s recent precedent Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), probably because it was decided after this case was argued and therefore could not have factored into the BIA’s decision here. But, Judge Wilkinson seems very eager to embrace the L-E-A- rationale and to limit family PSG protection accordingly.

PWS

08-03-17

 

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