"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”
In Immigration Court, the number one “internal” problem has probably been aimless docket reshuffling, where cases are repeatedly re-arranged depending on the priorities of different administrations. Other problems include inefficient Master Calendar Hearings and pre-trial conferences, insufficient guidance from the Board of Immigration Appeals, which leads to inconsistent decision-making, and not enough staff members to support the Immigration Judges. In addition, there is a shortage of DHS attorneys (the prosecutors), and those attorneys have insufficient power (or willingness) to resolve cases or narrow contested issues prior to the final hearing.
What does all this mean for asylum seekers? In court, cases are still being heard, though I expect that delays will increase and more cases will be rescheduled. We can also expect that more non-priority cases (i.e., people who do not have criminal or security issues) will be dismissed based on prosecutorial discretion. At the Asylum Office, nothing seems to be moving. You can try to expedite your case and if that fails, file a writ of mandamus to force the agency to adjudicate your application. Otherwise, I would not expect any progress any time soon.
Finally, we might as well end on a positive note. Having recognized that most asylum applicants will be stuck waiting for years and years, the government has recently increased the validity period of asylum-pending work permits from two years to five years. For asylum applicants, this change will save money and reduce stress, and for USCIS, it will reduce their workload and allow them to focus on other applications. I guess the lesson here is that every cloud has a silver lining–even a mushroom cloud.
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Read Jason’s full analysis at the link.
As Jason acknowledges, some of the drivers are “world events” over which — contrary to GOP and other nativist blather, often fanned by the so-called “mainstream media” — receiving countries like the U.S. have relatively little effective control. This is particularly true in the short run.
We’ve notoriously tried “taking over” countries in conflict. It never works! Moreover, it can eventually create additional refugee situations rather than resolving them. See, e.g., Afghanistan.
Nor are border barriers, razor wire, dungeons, arbitrary deportations, stripping asylum rights, xenophobic rhetoric, criminal prosecutions, killing some migrants by forcing ever more dangerous crossings, and a host of other unilateral measures pushed primarily by the GOP (but also by some Dems) going to change the actions of Maduro, Ortega, Putin, Diaz-Canel or any of the other authoritarian autocrats whose policies drive folks to flee their native lands and seek refuge abroad.
So, rather than wringing hands about what we can’t change, why not change that which is under our control? Long overdue, common-sense reforms and improvements in asylum adjudication, reception, and resettlement, some mentioned by Jason, could be achieved.
They won’t necessarily halt the flow of refugees, nor are they guaranteed to eliminate backlogs, particularly in the short run. But, they will reduce the backlogs, contribute mightily to a better U.S. legal system, and comply with our international and domestic legal obligations. That, in and of itself, appears to be a worthy and achievable goal. But, nobody in charge seems to be interested in anything but “quick fixes” — which aren’t really “fixes” at all, since they have all been tried and failed.
When Carolina’s captors arrived at dawn to pull her out of the stash house in the Mexican border city of Reynosa in late May, she thought they were going to force her to call her family in Venezuela again to beg them to pay $2,000 ransom.
Instead, one of the men shoved her onto a broken-down bus parked outside and raped her, she told Reuters. “It’s the saddest, most horrible thing that can happen to a person,” Carolina said.
A migrant advocate who assisted Carolina after the kidnapping, who spoke to Reuters on condition of anonymity due to security concerns, confirmed all the details of her account.
The attack came amid an increase in sexual violence against migrants in the border cities of Reynosa and Matamoros, both major transit routes for immigrants seeking to enter the U.S., according to data from the Mexican government and humanitarian groups, as well as interviews with eight sexual assault survivors and more than a dozen local aid workers.
“The inhumane way smugglers abuse, extort, and perpetrate violence against migrants for profit is criminal and morally reprehensible,” U.S. Department of Homeland Security (DHS) spokesperson Luis Miranda said in response to questions about the rise in reported rapes.
Criminal investigations into the rape of foreign nationals, excluding Americans, were the highest on record in the two cities this year, according to state data from 2014 to 2023 obtained by Reuters through freedom of information requests.
The U.S. State Department considers Tamaulipas, where the two cities are located, to be the most dangerous state along the U.S.-Mexico border.
. . . .
A Venezuelan migrant said he was kidnapped in May in Reynosa by a cartel while traveling to the border for his confirmed CBP One appointment. He couldn’t raise the full $800 ransom, so he was forced to work for two months to pay off the remaining $200, he said.
Two other migrants who said they were held at the house during the same time period confirmed the man was forced to work against his will, and that they heard female migrants being raped.
On the nights the Venezuelan man was tasked with standing guard over the other migrants, he said he watched the cartel members ask the man in charge of the house for permission to rape the women of their choosing.
He said the answer was always the same: “Take her.”
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Read the full article at the link.
Walls, detention, eliminating the right to asylum aren’t going to solve this. But, solving it doesn’tseem to be the objective. Blaming the victims is a lot easier than treating them as human beings.
As my friend Debi Sanders (who alerted me to this report) said: “Terrifying!”Yup! 🤯🏴☠️
Yet, just a few days earlier, in deciding to extend TPS to nearly a half million Venezuelans in the US, that same DHS found:
Overview
Venezuela continues to face a severe humanitarian emergency due to a political and economic crisis, as well as human rights violations and abuses and high levels of crime and violence, that impacts access to food, medicine, healthcare, water, electricity, and fuel, and has led to high levels of poverty. Additionally, Venezuela has recently experienced heavy rainfall in the spring and summer of 2023 which triggered flooding and landslides. Given the current conditions in Venezuela, these issues contribute to the country’s existing challenges.
Venezuela is experiencing “an unprecedented political, economic, and humanitarian crisis.” [5] “Venezuela is suffering one of the worst humanitarian crises in the history of the Western Hemisphere,” which has been characterized by “[h]igh levels of poverty, food insecurity, malnutrition, and infant mortality, together with frequent electricity outages and the collapse of health infrastructure.” [6] Though there were some positive developments in Venezuela in 2022 “as the economy stabilized and showed signs of economic growth,” the effects of these changes were not felt across the Venezuelan population and did not offset the impact of the large-scale economic contraction which resulted in significant humanitarian challenges that continue today and will take time to address.[7]
Political Repression and Human Rights
The Maduro regime has closed off channels for political dissent, restricting enjoyment of civil liberties and “prosecuting perceived opponents without regard for due process.” [8] The UN Human Rights Council’s Independent International Fact-Finding Mission on the Bolivarian Republic of Venezuela (IIFFM) found in its September 2022 report, “Venezuela’s military and civilian intelligence agencies function as well-coordinated and effective structures in the implementation of a plan” to “repress dissent.” [9]
Crime and Insecurity
Venezuela has one of the highest rates of violent deaths in the world.[10] Additionally, “Venezuelans face physical insecurity and violence from several sources, including irregular armed groups, security forces, and organized gangs.” [11] Corruption in Venezuela exacerbates insecurity. InSight Crime has reported that “criminal groups and corrupt state actors together form a hybrid state that combines governance with criminality, and where illegal armed groups act at the service of the state, while criminal networks form within it.” [12] Human trafficking remains a serious concern. Traffickers exploit and subject Venezuelans, including those fleeing the country, to egregious forms of exploitation, including sex trafficking and forced labor.[13] Members of non-state armed groups that operate in the country with impunity, subject Venezuelans to forced labor and forced criminality, and recruit or use child soldiers.[14]
Economic Collapse
Since 2014, Venezuela has suffered from an “economic recession marked by hyperinflation, shortages of basic goods and a collapse in public services such as electricity and water.” [15] Recently, Venezuela’s economy has shown some signs of recovery; however, it is still in a precarious condition.[16] In a report covering the period from May 2022 through April 2023, the Office of the High Commissioner for Human Rights (OHCHR) noted that while economic growth which occurred in 2022 “would bring hope for improved economic prospects, persistent challenges and other factors continued to negatively affect essential public services, transport, education, and health.” [17]
In its annual report covering 2022, the Inter-American Commission on Human Rights (IACHR) noted “the high rates of poverty and inequality in the country, in which there are estimates that more than 90% of the population lives in poverty.” [18] The same report stated that “as of March 2022, HumVenezuela estimated that 94.5% of the population would not have sufficient income to cover items such as food, housing, health, education, transportation and clothing.” [19]
Health Crisis
Various sources have referred to severe problems with health systems in Venezuela, including the IACHR, Human Rights Watch, and the Congressional Research Service (CRS).[20] Per The Associated Press, Venezuela’s “health care system crumbled long before” the start of the COVID–19 pandemic.[21] Likewise, in its 2022 annual report, the IACHR acknowledged that while the COVID–19 pandemic “has had significant impacts on the health sector and the population, the serious affectations of the system preceded the health emergency.” [22] Elaborating on this topic, the IACHR identified “shortages of medicines, supplies, materials and medical treatment” as of 2018, and that the “situation has been worsening since 2014, and it is important to highlight that the health system has reportedly collapsed due to its persistent precariousness, which would have been exacerbated by the pandemic.” [23]
According to OHCHR, health centers in Venezuela “report structural underfunding and understaffing resulting in for example, regular blackouts and water shortages.” [24] In its report on the humanitarian situation in Venezuela in 2022, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) noted that “[h]ealth services continue to be affected by insufficient water and sanitation conditions and the lack of electricity supply in facilities.” [25] Similarly, Human Rights Watch stated in its annual report covering 2022 that “[p]ower and water outages at healthcare centers—and emigration of healthcare workers—were further weakening operational capacity.” [26] Furthermore, the IACHR has reported that “98% of the hospitals in the country lack medicines, electrical plants and water, as well as failures in laboratories, reagents and wards. As a result, it is estimated that only between 3 and 10% of the hospitals have medical and surgical material to solve medical circumstances.” [27]
Food Insecurity
In a humanitarian response plan published in 2023, the Food and Agriculture Organization of the United Nations (FAO) identified food insecurity as “the most pressing challenge for the population.” [28] Human Rights Watch stated in its annual report covering 2022 that HumVenezuela reported in March 2022 that “most Venezuelans face difficulties in accessing food, with 10.9 million undernourished or chronically hungry. Some 4.3 million are deprived of food, sometimes going days without eating.” [29] Moreover, the IACHR noted in its 2022 annual report that “32% of children live in a situation of chronic malnutrition.” [30]
Heavy Rains and Flooding
Since May 26, 2023, as hurricane season began, Venezuela has experienced heavy rains which resulted in flooding that affected several areas of the country.[31] According to ACAPS, “Between June and July there have been 19 tropical waves, that have brought heavy rains, floods and landslides across the country.” [32] As of July 11, 2023, the meteorological situation in Venezuela indicated “that rainfall and resulting damages are expected to be more severe than previous years.” [33] Reports of the damage caused by the heavy rains include 5,100 people affected with damage to houses and blockages in the drainage system in the state of Portuguesa.[34] In another area—Delta Amacuro state—around 7,500 people are affected by the 2023 floods.[35]
In summary, extraordinary and temporary conditions continue to prevent Venezuelan nationals from returning in safety due to a severe humanitarian emergency which has resulted in food insecurity and the inability to access adequate medicine, healthcare, water, electricity, and fuel. Additionally, human rights violations and abuses, high levels of poverty, high levels of crime and violence, and heavy rains and flooding prevent Venezuelan nationals from returning in safety and permitting Venezuelan noncitizens to remain in the United States temporarily would not be contrary to the interests of the United States.
Based on this review and after consultation with appropriate U.S. Government agencies, the Secretary has determined that:
• The conditions supporting Venezuela’s designation for TPS continue to be met. See INA sec. 244(b)(3)(A) and (C), 8 U.S.C. 1254a(b)(3)(A) and (C).
• There continues to be extraordinary and temporary conditions in Venezuela that prevent Venezuelan nationals (or individuals having no nationality who last habitually resided in Venezuela) from returning to Venezuela in safety, and it is not contrary to the national interest of the United States to permit Venezuelan TPS beneficiaries to remain in the United States temporarily. See INA sec. 244(b)(1)(C), 8 U.S.C. 1254a(b)(1)(C).
• The existing designation of Venezuela for TPS (Venezuela 2021) should be extended for an 18-month period, beginning on March 11, 2024 and ending on September 10, 2025. See INA sec. 244(b)(3)(C), 8 U.S.C. 1254a(b)(3)(C).
• Due to the conditions described above, Venezuela should be redesignated for TPS beginning on October 3, 2023, and ending on April 2, 2025. See INA sec. 244(b)(1)(C) and (b)(2), 8 U.S.C. 1254a(b)(1)(C) and (b)(2).
For the redesignation, the Secretary has determined that TPS applicants must demonstrate that they have continuously resided in the United States since July 31, 2023.
Initial TPS applicants under the redesignation must demonstrate that they have been continuously physically present in the United States since October 3, 2023, the effective date of the redesignation of Venezuela for TPS.
There are approximately 243,000 current Venezuela TPS beneficiaries who are eligible to re-register for TPS under the extension.
It is estimated that approximately 472,000 additional individuals may be eligible for TPS under the redesignation of Venezuela. This population includes Venezuelan nationals in the United States in nonimmigrant status or without immigration status.
Does this sound like a country that will “ensure orderly, safe and legal repatriation?” Duh!
As for the DHS attempt to “blame the victims” for not taking advantage of legal opportunities, the legal right to apply for asylum in the U.S. attaches at the border to ANYONE “who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status.”INA, section 208.
With huge backlogs at both the Asylum Office and EOIR, and some problematic adjudicators, judges, administrators, and poor precedents, just how could hundreds of thousands of legal removals take place without huge systemic changes that to date the Administration has failed to make at either DHS or EOIR?Sounds like a prescription for massive legal and human rights violations!☠️
Yes, we’re going to hear chants of “we can’t take them all” from all sides. But, the truth that few acknowledge is that we haven’t and won’t be “taking them all” — not by a long shot! Of the more than 7 million who have fled the Maduro regime in Venezuela, only approximately 10% (about 750,000) have come to the U.S.!https://www.bbc.com/news/world-us-canada-66875264. The vast, vast majority — approximately 90% — have taken refuge elsewhere in Latin American, in poorer countries far less able than the U.S. to absorb them! But, hey, when does truth and reality ever enter into the U.S. political debate on immigration?
Immigrant Defenders help humanity at the border, treating fellow humans with dignity, respect, kindness. PHOTO: Linkedin
Immigrant Defenders posted this on LinkedIn:
Customs and Border Protection (CBP) continues to inhumanely release asylum seekers onto San Diego streets, often with little more than the clothes on their backs. #TeamImmDef, Lindsay Toczylowski, Margaret Cargioli, Melissa Shepard and Jesús Contreras Barajas, continues to join various non-profit organizations, grassroots groups and community members to receive asylum seekers with respect and help them reach their friends and family members all over the United States. Our dedicated team, in collaboration with our remarkable San Diego-based partners, is tirelessly working to continue to welcome migrants with dignity. We have welcomed more than 8500 asylum seekers in 13 days.
We need all levels of government, local and federal, to provide infrastructure and financial resources to help NGOs welcome with dignity.
If you want to help, please consider donating airline miles to Miles4Migrants. Please see the link in our bio to donate. Or donate directly to ImmDef at Immdef.org/donate.
Scandalously, rather than looking to solve this humanitarian crisis, the GOP seeks to punish victims of Government dereliction of duty and their humanitarian responders for asserting well-established legal rights! Talk about a party of lawlessness! Sadly, it’s no surprise since they owe homage to an insurrectionist “leader” who is a notorious fraudster, con man, and criminal defendant in multiple cases!
While resisting the GOP’s worst racist/nativist nonsense, the Dems’ approach has been largely to avoid talking about immigration and human rights, apparently believing that pretending like they don’t exist will make them go away. But, migration isn’t going away!
While we can to some extent control, channel, and optimize migration, irresponsible “zero tolerance/uber deterrence” policies will do little to stop reality in the long run. It will, however, eventually force more migration underground and cede policy control to smugglers, cartels, and other criminals.
At the same time, obsessing over deterring and deporting those who merely seek refuge and a chance to contribute to America will actually diminish the harder work of focusing on criminals out to turn border disorder and misplaced priorities to their advantage.
Neither party appears to have a realistic plan for the border, and the GOP actively seeks to make things worse!Meanwhile, not for the first time, NGOs, local communities, and compassionate individuals are left to pick up the slack!
Recently, the San Diego County Board showed the potential for bipartisan cooperation on the border.
But, without a more realistic approach from the Feds — currently blocked by the GOP — local efforts are unlikely to succeed. And, that’s an avoidable humanitarian tragedy!
The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.
Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.
He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.
At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.
“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.
. . . .
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.
But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.
“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.
Chase said the hearing appeared rushed, and he believes the case backlog played a role.
“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”
Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.
John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.
. . . .
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Read Julie’s complete article at the link.
Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do).
No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.
Here’s additional commentary from “Sir Jeffrey:”
Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.
(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)
That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.
Harvesting the “low hanging fruit” — the many clearly grantable asylum cases — has proved remarkably elusive for EOIR — under Administrations of both parties! IMAGE: Creative Commons 2.0
That Mexico is one of the most dangerous countries in the world for journalists is hardly “rocket science.” 🚀 See, e.g.,https://www.nbcnews.com/news/latino/annihilating-journalism-mexican-reporters-work-attacks-killings-rcna14196. Yet, an EOIR Judge was allowed to twice wrongfully deny this “slam dunk” case —on specious grounds such as making the absurd finding that Mr. Gutierrez was not a journalist — over six years before the BIA finally ended the farce!🤡
So, let’s put this into a real world context. 15 years, two wrong IJ decisions, and two trips to the BIA to complete (actually it’s still not complete, because it was remanded for “background checks,” but that’s another saga), a case that should have taken a well-qualified Immigration Judge about 15 minutes to grant. So, what chance is there that without major leadership, personnel, structural, and substantive changes, EOIR could do “justice” on asylum cases put on an ”expedited docket.” Slim and none, as actual experience shows!
The necessary first step toward meaningful immigration reform is a complete overhaul of EOIR. Without that readily achievable administrative action, no attempt at legislative or regulatory reform can succeed. It’s not rocket science! 🚀 Just common sense, moral courage, and “good government.”
Mob chatter: “Hey, anyone here know what an ARCG is?” “No clue.” “Some kind of boat?” “Maybe we should ask Noah.” “Don’t bother. The only rule we follow around here is ‘When in doubt, throw ‘em out!’” “Isn’t that what the UN Handbook says, that ‘giving the benefit of the doubt’ means to ‘doubt that any benefit will ever be given?’” “Yup, sounds right to me!” “I don’t understand it. We’re overtly hostile to asylum seekers and their lawyers, we’ve tilted the playing field against them, yet they still come! Why?” “Detain, discourage, deny, deport, deter, that’s our mission!” “Where due process, fundamental fairness, and best practices go to die!” “Precedents? We only follow the ones unfavorable to respondents!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
From: Ted Murphy
Sent: Thursday, September 14, 2023 10:09 AM
To: AILA Philadelphia List
Cc: Kaley Miller-Schaeffer
Subject: 3rd Circuit Precedent – PSG Honduras A-R-C-G-
Importance: High
Friends,
Please see the attached precedent decision from the 3rd Circuit today. While the first 16 pages of the 21 page decision focus on CIMT issues, the final 4 pages are worth reading on PSG similar to A-R-C-G- that the BIA ignored.
Here, on the other hand, the BIA did not adhere to
Matter of A-R-C-G-’s requirement to examine Avila’s PSG
within the context of the specific country conditions in
Honduras. The BIA rejected Avila’s PSG for lack of
particularity without considering evidence in the record about
“widespread and systemic violence” against Honduran women,
“inconsistent legislation implementation, gender
discrimination within the justice system, and lack of access to
services.”109 Evidence in the record, including that “[l]ess than
one in five cases of femicide are investigated,… and the
average rate of impunity for sexual violence and femicide is
approximately 95%,” may have been relevant in examining
whether Avila’s proposed PSG was cognizable.110 Just as the
cultural attitudes toward gender were relevant in Matter of A-
R-C-G-, evidence in the record as to the “machismo culture” in
Honduras may be relevant to assessing whether Avila has a
cognizable PSG.111
Moreover, in Matter of A-R-C-G-, DHS conceded that
the proposed group “married women in Guatemala who are
unable to leave their relationship” was sufficient for a PSG
asylum claim.112 Given the similarity between that social group
and “Honduran women in a domestic relationship where the
male believes that women are to live under male domination,”
we must remand for the BIA to provide clarification as to its
application of Matter of A-R-C-G-, and to determine whether
Avila’s proposed PSG is cognizable in light of the specific
country conditions
.
We must also remand for the BIA to consider whether
Avila demonstrated a well-founded fear of persecution on
account of her PSG. The BIA determined that Avila’s PSG did
not “exist independently” of the harm alleged, as required
under Matter of M-E-V-G-113 and Matter of W-G-R-.114 Matter
of M-E-V-G- cites to this Court’s prior precedent in Lukwago
v. Ashcroft,115 which states that a PSG “must exist
independently of the persecution suffered by the applicant for
asylum.”116 However, Lukwago makes clear that in
determining whether a PSG exists independently of the
persecution suffered, the BIA must consider the PSG in the
context both of “past persecution” and a “well-founded fear of
persecution.”117 Here, the BIA did not consider whether Avila
had demonstrated that she had a well-founded fear of
persecution based on her past experiences of abuse and sexual
violence. Accordingly, we will remand for the BIA to consider,
in addition to whether Avila has suffered past persecution on
account of her PSG, whether she has demonstrated a well-
founded fear of future persecution.
In conclusion, on remand, the BIA should (1) clarify,
given the Government’s concession in Matter of A-R-C-G- that
the proposed group was sufficient for a PSG asylum claim, its
application of Matter of A-R-C-G- to the present case, and
consider Avila’s PSG in the context of evidence presented
about the country conditions in Honduras and (2) provide
guidance in applying both Matter of A-R-C-G- and Matter of
M-E-V-G- with respect to past persecution and a well-founded
fear of future persecution on account of membership in a PSG
Case was argued by Attorney Kaley Miller-Schaeffer.
Once again, the BIA fails to follow its own precedent favorable to the respondent! Yet, in a Dem Administration they get away with mocking the rule of law in life or death cases, in a “court system” that the Dems “own.” Why?
WHO applies precedents and rules can be as important as the precedents and rules themselves! Failure to properly and uniformly apply legal rules that favor asylum seekers has become a chronic problem at EOIR. It’s one that Garland has yet to effectively and comprehensively address!
Many congrats to Kaley Miller-Schaefer and Murphy Law!
Kaley Miller-Schaefer ESQ Partner Murphy Law PHOTO: Linkedin
“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”
PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”
HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”
This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?
This e-mail exchange among experts says it all about Cabrera-Fernandez:
Expert 1: Wow – they never miss a chance to hurt noncitizens, do they?
Expert 2: The cruelty is the point.
“The Cruelty Is The Point” IMAGE: Amazon.com
With an available interpretation that would have allowed regularization of status, what purpose is served by devising a way to keep these otherwise qualified Cubans in limbo? Why would the DHS appeal a decision like this? Why would the BIA reward them for pursuing a result that is 1) inhumane, 2) undesirable, and 3) entirely avoidable with a little creativity and common sense (see, IJ in this case)?
No wonder we have backlogs everywhere an a dysfunctional system that nobody in charge seems interested in fixing — even when fixes are available and basically “cost free?” Better leaders and more enlightened decision-makers would be helpful.
A federal judge ordered Texas to remove floating barriers in the Rio Grande and barred the state from building new or placing additional buoys in the river, according to a Wednesday court filing, marking a victory for the Biden administration.
Judge David Alan Ezra ordered Texas to take down the barriers by September 15 at its own expense.
The border buoys have been a hot button immigration issue since they were deployed in the Rio Grande as part of Gov. Greg Abbott’s border security initiative known as Operation Lone Star. The Justice Department had sued the state of Texas in July claiming that the buoys were installed unlawfully and asking the judge to force the state to remove them.
In the lawsuit, filed in US District Court in the Western District of Texas, the Justice Department alleged that Texas and Abbott violated the Rivers and Harbors Appropriation Act by building a structure in US water without permission from United States Army Corps of Engineers and sought an injunction to bar Texas from building additional barriers in the river. The Republican governor, meanwhile, has argued the buoys are intended to deter migrants from crossing into the state from Mexico.
Texas swiftly appealed the judge’s order.
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
Ezra also found Texas’ self-defense argument – that the barriers have been placed in the face of invasion – “unconvincing.”
. . . .
*********************************
Read the rest of Priscilla’s report at the link.
Who knows how this will play out in the 5th Circuit and the Supremes, given the composition of those courts. But, at least for a day, Judge Ezra has brought some common sense and the rule of law to bear on out of control grandstanding Texas “Governor” Greg Abbott.
We should also remember that the vast majority of those whom Abbott and the nativists bogusly call “invaders” seek only to turn themselves in to U.S. authorities so they can exercise their clear legal rights to apply for asylum — rights that attach regardless of status or manner of entering the U.S. (Rights that also have improperly been diminished and impeded by the Biden Administration’s ill-advised asylum regulations, currently under legal challenge).
If successful (under a legal system intentionally rigged against them), these so-called “invaders” will use their skills and work ethic to expand our economy and help Americans prosper while saving their lives and those of their families. To anybody other than Abbott and other White Nationalists, that sounds like a potential “win-win” that could and should be “leveraged” for everyone’s benefit!
Judge Ezra’s opinion in the aptly-named U.S. v. Abbottcan be found here:
Stuart Anderson Executive Director National Foundation for American Policy PHOTO:Linkedin
Parole programs and other legal pathways reduce illegal entry and are more humane. “Latin American experts say it is wrong to assume immigration enforcement policies can override the human instinct to leave untenable circumstances and seek a better life.” #immigration #asylum #asylumseekers
New York City business leaders have asked the Biden administration to provide more federal aid and expedite work permits for asylum seekers. If asylum seekers could work, they would likely find their own housing, which would ease the burden on New York and other city governments. Businesses around the country seek more workers to fill positions. Advocates recommend policies that would provide a more comprehensive solution amid an historic refugee crisis that analysts consider unlikely to be addressed through enforcement-only policies.
A Plea From Businesses
“The New York business community is deeply concerned about the humanitarian crisis that has resulted from the continued flow of asylum seekers into our country,” according to an August 28, 2023, letter from the Partnership for New York City to President Biden and Congressional leaders. “We write to support the request made by New York Governor Hochul for federal funding for educational, housing, security and health care services to offset the costs that local and state governments are incurring with limited federal aid.
“In addition, there is a compelling need for expedited processing of asylum applications and work permits for those who meet federal eligibility standards. Immigration policies and control of our country’s border are clearly a federal responsibility; state and local governments have no standing in this matter. There are labor shortages in many U.S. industries, where employers are prepared to offer training and jobs to individuals who are authorized to work in the United States.”
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Read the complete article at the link.
For each of my classes in Immigration Law & Policy @ Georgetown Law, the students were required to find and report on an item relating or illustrating the topic for the class. Stuart Anderson was one of the “most reported on” sources! I think it’s because his writing is so clear, understandable, and sensible to all audiences!
Immigration affects everything and is a key to a better future for all. That’s why it’s a shame Dems aren’t willing to tout it, instead basically ceding the issue to GOP restrictionists. Big mistake, in my view!
Children catch bubbles Aug. 17 at a free barbecue organized by the Lewiston School Department to mark the end of its summer outreach program that provided numerous services for students and families. It also gave the School Department the opportunity to connect with students and parents, hand out schedules, sign students up and make connections before the start of school. Russ Dillingham/Sun Journal
With just a week to go before the first day of school, staff from Freeport schools headed to a local hotel to meet their newest students.
The 67 students, all from asylum-seeking families, had just moved to the Casco Bay Inn from the Portland Expo, where nearly 200 people had been staying in the temporary shelter before it closed. The families all decided to send their kids to Freeport schools instead of busing them to Portland to attend classes, said Jean Skorapa, superintendent of Regional School Unit 5 in Freeport.
“Our first goal is to get them enrolled and in a class,” she said. “That piece is done. Now we look at how to best serve their needs.”
The scramble to welcome new students and connect them with the services they need is becoming a familiar challenge in Freeport and other Maine communities where the families are settling.
For the past several years, school districts in southern Maine have had to make quick adjustments as they enroll dozens of students from asylum-seeking families, many of whom come from African countries and speak little or no English when they arrive. To meet their needs, they’ve had to hire more teachers for English learners, add social workers and support staff, and make sure translation services are in place to communicate with parents.
“For us, this is a new experience,” said Steve Bussiere, assistant superintendent in Sanford, where 38 students enrolled in May when their families arrived in the city. There will be 55 students from asylum-seeking families in Sanford schools this year, he said.
School leaders say the work can be challenging and puts a significant strain on resources, but it’s also a privilege to welcome new students into the community.
“We’ve had new Mainers with us over the past year and a half. They’ve made us a more well-rounded, diverse district,” Skorapa said. “They’re a wonderful addition to our school community and we welcome them with open arms and are thrilled to have them with us.”
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Read the complete article at the link.
Congrats to educational and political leaders in Maine for making the system work as it should! Immigrants becoming Mainers and settling down there is making a positive difference! Seems like the Feds, not to mention other states and localities, could use some of this same positive approach and enlightened, courageous leadership.
The Portland’s Press Herald’s Editorial Board echoed this view in an editorial published yesterday:
Our View: To invest in immigrant pupils is to invest in the future
A big effort by Maine schools to accommodate English language learners will have a big return for their communities.
A new experience.
That’s how Steve Bussiere, assistant superintendent in Sanford, described Sanford schools’ addressing the needs of 55 new students from asylum-seeking families this coming school year.
It’s a new experience for the kids, too, and thanks to thoughtful, time-intensive efforts by Bussiere’s colleagues and other schools around Maine – hiring additional teachers to teach English to English language learners, hiring more social workers and more support staff and refining translation services so that school staff and administrators can communicate with new pupils’ parents – it can be a good experience.
The focus on multilingual learners requires a serious effort and will make a serious difference to our state.
Thankfully, the Maine Legislature expressed its understanding of that fact in July, including $3.5 million for the support of English language learners – via the English Language Learner Hardship Fund – in the special supplemental budget.
This valuable funding becomes available to schools at the end of October. Portland’s public schools will receive more than $784,000; Lewiston, $631,000; South Portland, $302,000; Biddeford, $192,000, Brunswick, $150,000; Saco, $110,000; Freeport, $109,000, and Westbrook, $93,000.
In Freeport, arrangements have been made for 67 new students who recently moved with their families from the temporary shelter at the Portland Expo to the Casco Bay Inn. Jean Skorapa, superintendent of Regional School Unit 5 in Freeport, struck a crystal-clear and exceedingly warm note earlier this week – sounding like many other Maine educators on the same subject in recent years.
“We’ve had new Mainers with us over the past year and a half. They’ve made us a more well-rounded, diverse district,” Skorapa said. “They’re a wonderful addition to our school community and we welcome them with open arms and are thrilled to have them with us.”
In other school districts, efforts such as these have been up and running for a while. According to our reporting Monday, Lewiston schools work with students who speak a total of 38 languages. The school district there has a multilingual center that works with families and offers vital help with paperwork and orientation. Portland has been supporting new students from asylum-seeking families for years; in July, we reported that one-third of the district’s roughly 6,500 students were multilingual.
The numbers make it clear as day: The downside risk of underfunding English language learning is now way too steep for these parts of Maine to run. Yes, there’s a moral imperative here; it is also a legal requirement of our public schools. We trust that, on the strength of existing work in this realm, the practice of funding multilingual learning education becomes just that – a practice. Rep. Michael Brennan, D-Portland, House chair of the Education and Cultural Affairs Committee, expressed his commitment to continue funding the program “in the coming years.”
Appropriate investment in these students fosters a sense of belonging, reduces the risk of pernicious, hard-to-close learning gaps and, as students find themselves better and better equipped to support their families locally, has wide-reaching benefits. To say nothing of what it means for school graduates of the future. On top of that, successive studies have shown that the teaching techniques that assist English language learners assist all students.
That’s not to say there won’t be hurdles to overcome. In recent days, tense and ugly anti-immigrant rallies in Manhattan, Staten Island and Woburn, Massachusetts, laid bare the style of racist, isolationist thinking that continues to oppose even the most commonsense steps towards integration and inclusion.
Our schools need more support, and they need it to be specific. The calls for increased attention to the new members of the student body need to be sustained in their volume and their clarity. It makes sense, at every level, to seize this opportunity to enrich our classrooms and our communities.
Kids are our future. It’s definitely worth the effort!
A Helping Hand.jpg Image depicts a child coming to the aid of another in need. Once we have climbed it is essential for the sake of humanity that we help others do the same. It is knowing that we all could use, and have used, a helping hand. Safiyyah Scoggins – PVisions1111 Creative Commons Attribution-Share Alike 4.0 White Nationalist Xenophobes like Trump, DeSantis, Abbott, & Ducey have abandoned Traditional Judeo-Christian values in favor of neo-fascism. But, the rest of us should hold true to our “better angels.”
Advocate and Attorney Making Progressive Policy Accessible and Irresistible
Advocate and Attorney Making Progressive Policy Accessible and Irresistible
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The following post is the final part of my 2017 Black Immigration Primer! I delve into the impact of former President Donald Trump’s early executive orders on Black immigrants, the consequences of which are still being felt today.
It seems like ages since 45 (the former President of the U.S.) issued a volley of executive orders affecting various areas of our lives. Here, I want to talk about the two versions of the Travel Ban (a.k.a. the #MuslimBan) and how they target Black immigrants, Muslim immigrants, and Black Muslim immigrants. The travel bans live at the intersection of anti-Blackness and Islamophobia.
First, some terms and their definitions. Anti-Blackness (also known as anti-Black racism) is what it sounds like: systems, policies, beliefs, and behaviors that are “resistant or antagonistic to Black people or their values or objectives.” We often see anti-Blackness in other communities of color. Some argue that assimilation into American culture is predicated on embracing anti-Blackness (in order to succeed in America, one must separate oneself from Black people and violently oppose Black people’s success). Islamophobia is a “dislike or prejudice against Islam or Muslims, especially as a political force.” It’s important that anti-Blackness and Islamophobia are not merely individual beliefs; they encompass power of the systemic kind. Anti-Blackness and Islamophobia result in harmful, deadly policies and wars.
It’s safe to say that 45 and his administration are a number of things (misogynistic, racist, unethical, evil, and so forth) but they are also distinctly anti-Black and Islamophobic. 45 and his minions’ embrace of anti-Blackness and Islamophobia produced two Travel Bans that harmed hundreds of people. Let’s discuss them in turn. Read more on my blog!
It’s going to take more than $1 million in “security assistance” to a HBUC and $100k to victims’ families to cover up the far right GOP’s responsibility for promoting racism and hate crimes in America. And, the war on immigrants of color is a key part of the racism, Islamophobia, and misogyny that has found a home in the far right of today’s GOP!
Indeed, as I have pointed out on many occasions, MAGA’s hate-fueled campaign to eliminate individual rights in America started with Trump’s lies and distortions targeting migrants of color from Mexico and elsewhere! That’s why Dems’ overall failure to engage with the GOP on immigration, and to vigorously and proudly defend migrants’ rights, has such tragic implications for American democracy!
This brief represents the views of two groups of amici curiae. See Corporate
Disclosure Statement for names of amici curiae. The first group is comprised of thirty-two immigration law scholars and clinical professors. These amici teach immigration law and/or provide clinical instruction in law school clinics that provide representation to asylum seekers and noncitizens seeking relief under 8 U.S.C. § 1231 and 8 U.S.C § 1158. As such, amici are knowledgeable of the particular legal requirements of 8 U.S.C. § 1231 and 8 U.S.C § 1158 and have a special interest in the proper administration and interpretation of the nation’s immigration laws, particularly asylum and withholding of removal.
The second group is comprised of forty-one former immigration judges (“IJs”) and Board of Immigration Appeals (“BIA”) members who have collectively presided over thousands of removal proceedings and have interest in this case based on their many years of dedicated service administering the immigration laws of the United States. Based on this experience, amici believe that withholding of removal
1 Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici notes that all parties have consented to the filing of this brief.
Furthermore, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, amici further certifies that no party’s counsel authored the brief in whole or in part, no party or party’s counsel contributed money that was intended to fund preparation or submission of the brief, and no person, other than amici, their members, or counsel has contributed money intended to fund preparing or submitting the brief.
is the means whereby Congress provided for the United States to meet its international treaty obligation of “nonrefoulement” under Article 33 of the Refugee Convention. Withholding of removal is a vital legal tool upon which IJs rely to ensure that noncitizens appearing before them are not removed to countries for which they have proven it to be more likely than not that they have experienced (or will experience) persecution on account of a protected ground — an extremely high burden to meet. This relief is mandatory where the noncitizen’s burden of proof is met and does not lead to permanent status or derivative status for immediate family members, in contrast to asylum, which is a discretionary form of relief that grants a permanent status and derivative status for immediate family members.
Amici contend that the more lenient “a reason” standard, as applied to the nexus between the protected ground and the persecution for withholding (as opposed to the “at least one central reason” standard for asylum) requires IJs to order withholding in cases where evidence of nexus may be insufficient for a discretionary grant of asylum. Such an interpretation would provide greater protection from violating the international treaty obligation of nonrefoulement. The instant case, where Petitioner is ineligible for asylum but may be protected from severe future persecution by withholding of removal, presents exactly the context in which Congress intended for the lesser “a reason” nexus standard to apply. Addressing this question here provides an opportunity for this Court to affirm Congress’s clear
intent, expressed in the statutory language of 8 U.S.C. § 1231(b)(3)(C), to establish protection against nonrefoulement for this noncitizen and many others who, for any number of reasons, are ineligible for the discretionary relief of asylum.
