"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.
A federal judge has ruled that President Donald Trump’s administration, which often boasts about defending religious liberty, has violated the religious rights of a group of volunteers at the U.S.-Mexico border.
The Trump administration has spent years cracking down on the work of No More Deaths/No Más Muertes, a Unitarian Universalist ministry in Arizona that provides water and food to migrants crossing a treacherous stretch of desert along the border where dozens have died. Various members of No More Deaths have faced fines and even jail for what they consider to be faith-based, life-saving humanitarian aid.
But for the second time in months, a judge has ruled that the government shouldn’t be punishing these volunteers for putting their faith into practice.
U.S. District Judge Rosemary Márquez ruled Monday that four volunteers who left water and food for migrants at the Cabeza Prieta National Wildlife Refuge were acting according to their “sincerely held religious beliefs.” As a result, the government substantially burdened the volunteers’ religious liberty by prosecuting them for this work, Marquez said.
“Given Defendants’ professed beliefs, the concentration of human remains on the [refuge], and the risk of death in that area, it follows that providing aid on the [refuge] was necessary for Defendants to meaningfully exercise their beliefs,” the judge wrote.
Márquez’s ruling reversed the decision of a lower court, where another judge dismissed the volunteers’ religious liberty claims and sentenced them to probation and fines last March.
COURTESY NO MORE DEATHS
A federal judge has ruled that four volunteers who left water and food for migrants at the Cabeza Prieta National Wildlife Refuge were acting according to their “sincerely held religious beliefs.” From left, they are Natalie Hoffman, Madeline Huse, Zaachila Orozco-McCormick, and Oona Holcomb.
The case against the four volunteers ― Natalie Hoffman, Oona Holcomb, Madeline Huse and Zaachila Orozco-McCormick ― goes back to December 2017, a year when 32 sets of human remains were recovered from the Cabeza Prieta National Wildlife Refuge. The volunteers were charged with misdemeanors for entering the wildlife refuge without proper permits and leaving behind jugs of water and cans of beans, which the government called abandonment of property.
The volunteers’ defense hinged on the Religious Freedom Restoration Act of 1993 (RFRA). The law states that if a defendant can prove that the government is substantially burdening her “sincerely held religious beliefs,” then the government has to show that it’s using the “least restrictive” path to achieving its goals.
This ruling shows that religious freedom is not just for the Christian right, as the Trump administration would have us believe.Parker Deighan, spokesperson for No More Deaths
RFRA initially had broad bipartisan support. But more recently, the religious right has been using RFRA as a way to secure exemptions for conservative beliefs about abortion and LGBTQ rights. The evangelical Christian owners of the Hobby Lobby craft stores famously used RFRA to avoid paying for insurance coverage for contraception.
Under Trump, the Department of Justice has urged a narrow reading of RFRA claims made by people of faith who do not share the administration’s policy goals, according to Katherine Franke, faculty director of Columbia University’s Law, Rights, and Religion Project.
“The Trump Department of Justice has taken a biased approach to defending and enforcing religious liberty rights under RFRA, robustly protecting the rights of conservative Evangelical Christians while prosecuting people whose faith moves them to oppose the government’s policies,” Franke told HuffPost in an email.
Michael Bailey, the Trump-nominated U.S. attorney for Arizona, said his team has no issue with Márquez’s finding that strong religious beliefs motivated the defendants’ acts.
“We highly value religious freedom without regard to where on the spectrum one’s beliefs might fall,” Bailey told HuffPost in a statement.
JOHN MOORE VIA GETTY IMAGES
A volunteer for the humanitarian aid organization No More Deaths delivers water along a trail used by undocumented immigrants in the desert on May 10, 2019 near Ajo, Arizona.
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No More Deaths is a Unitarian Universalist ministry. But all four volunteers are technically religiously unaffiliated, which means they are part of a growing group of Americans who decline to identify with any specific religious tradition.
During testimonies, the four described feeling a spiritual calling to volunteer, inspired by beliefs about the sanctity of human life. They also spoke about taking moments of silence in the refuge to reflect on the suffering of those crossing the desert.
Holcomb said that she had constructed a “personal altar” at her home that included a ring of water bottles she picked up in the desert.
“There is … for me, I will say, like a deep spiritual need and a calling to do work based on what I believe in the world,” Holcomb testified, according to the judge’s opinion.
In its response to the volunteers’ appeal, the government argued that their beliefs were not truly religious because they didn’t explain how they fit into a “particular system of religious or spiritual beliefs.” The government also asserted that the volunteers were “draping religious garb” over “secular philosophical concerns.”
In her opinion, Márquez said that the volunteers’ RFRA claims can’t be dismissed just because they described their beliefs in broad terms and don’t belong to an established religion. She pointed out that religious and political motivations overlapped in the Hobby Lobby case. ThatSupreme Court verdict has shown that government faces an “exceptionally demanding” obligation to be minimally restrictive while imposing on a person’s religious exercise, Márquez said.
Ultimately, the government had failed to demonstrate that prosecuting the volunteers was the least restrictive means of achieving a compelling governmental interest, the judge said.
JOHN MOORE VIA GETTY IMAGES
Scott Warren, a volunteer for the humanitarian aid organization No More Deaths, walks into Organ Pipe Cactus National Monument to deliver food and water along remote desert trails used by undocumented immigrants on May 10, 2019, near Ajo, Arizona.
Márquez’s decision comes months after another No More Deaths volunteer, Scott Warren, was acquitted of a federal misdemeanor charge for leaving water jugs in the Cabeza Prieta National Wildlife Refuge for migrants. The judge in that case also acknowledged that Warren’s action was protected by his right to religious freedom. That was one of the first times progressive religious beliefs related to immigration have been protected in this way, the Law, Rights, and Religion Project told HuffPost in November.
Franke said there are other cases where progressive people of faith are making religious exemption claims. The Rev. Kaji Douša, a New York pastor and immigrant rights activist, claims the federal government violated her religious freedom when she was detained and placed on a watch list for ministering to asylum seekers at the U.S.-Mexico border. The government has “trivialized” Douša’s RFRA claims and urged the court to dismiss them, Franke said.
In Philadelphia, the DOJ is trying to prevent a faith-based overdose prevention organization from opening a safe injection site, arguing that its “true motivation is socio-political or philosophical — not religious — and thus not protected by RFRA.”
Franke said that when Congress passed RFRA in 1993, the statute was meant to protect the religious liberty of people across a wide spectrum of beliefs, “not just some, and certainly not only those who hold religious beliefs that were shared with the current federal administration.”
Parker Deighan, a spokesperson for No More Deaths, told HuffPost that Márquez’s ruling on Monday reaffirms that “providing humanitarian aid is never a crime.”
“This ruling shows that religious freedom is not just for the Christian right, as the Trump administration would have us believe,” she said. “We hope that that Judge Marquez’s ruling signifies a shift towards religious freedom exemptions being used to protect the work of people and organizations fighting on the side of justice, such as migrant solidarity organizations and indigenous peoples fighting for protection of their sacred lands and traditions, rather than protection for discrimination and bigotry.”
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So, here’s the deal.
The Trump (the least religious and most immoral President in U.S. History) regime uses a bogus “religious protection” rationale to cloak far-right programs of hate, intolerance, dehumanization, marginalization, and cruelty directed at people of color, the LGBTQ community, migrants, refugees, women, children, Muslims, Jews, and other vulnerable groups. According to the regime, “religious freedom” is limited to the “extremist religious right.”
Then, the regime attempts to misuse “the law” to punish those who actually “show Christ-like love in word and in deed.” To her credit, U.S. District Judge Rosemary Márquez “just said no” to this disingenuous nonsense.
The only way to stop the intellectual dishonesty, mockery of religious humanitarian principles, and misuse of our laws is to oust Trump and his enablers from office at every level. Otherwise, we can expect the persecution and cruelty to continue.
And don’t be surprised if the “J.R. Five” on the Supremes find a way to manipulate the system to enable the persecution of others to continue and grow worse. It’s what complicit “judges” do in the face of tyrants.
While the regime is using your tax dollars to pervert the law to persecute humanitarian workers, they are simultaneously violating our Constitution, our statutes, and our international obligations, with the connivence of the Supremes and Federal Appeals Courts who choose to look the other way rather than standing up for individuals’ rights against authoritarian overreach.
It’s time to stand up for our Constitutional rights, human rights, and human decency. Throw the corrupt and immoral GOP and their collaborators out of office at the next election, and bring in Government officials, legislators, and life-tenured judges who are willing and able to stand up for their oaths of office!
Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives
The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.
Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).
No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.
Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.
Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.
In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.
The following three cases illustrate the range of harms:
In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).
In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”
In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”
As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.
Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.
Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.
Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.
Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.
While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).
Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.
These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).
According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.
Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.
Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.
As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.
The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.
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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.
Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of shallow “go along to get along” jurists! Human lives matter!
It’s happening a little bit out of public consciousness — swamped by impeachment, the coronavirus and the Democratic presidential race — but on Friday President Trump announced further restrictions on immigration and foreign entry to the United States. Citing security concerns, the administration has slammed the door on immigrants from the African nations of Sudan, Tanzania and Eritrea, as well as Myanmar in Southeast Asia and Kyrgyzstan in Central Asia. These countries, which have large Muslim populations, join seven others on the president’s ever-developing travel ban.
There’s one other country on the expanded list — Nigeria. Home to more than 200 million of Africa’s 1.2 billion people, Nigeria has the largest economy on the continent and has worked with the American military on joint operations. But given an “elevated risk and threat environment in the country,” administration officials say there’s a chance Nigeria could become a vector for terrorists who want to enter the United States. Nigeria’s government has long struggled with the Islamist group Boko Haram, which is responsible for multiple kidnappings and dozens of attacks that amount to mass slaughter.
But there’s little to no evidence that this group is a threat to Americans, nor is there any history of Nigerian terrorism on American soil. From 1975 to 2015, according to an analysis from the libertarian Cato Institute, just one Nigerian national was implicated in a terrorist attack against the United States. And, it should be said, the administration has not banned all entry from Nigeria — only applications for permanent residence. Tourists can still visit America, an odd loophole if the White House is actually worried about terrorism.
But I don’t think President Trump is actually worried about Nigerian terrorism.
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In 2017, The New York Times reported on a meeting between Trump and several members of his cabinet in which he raged against foreign visitors to the United States. Citing a memo from Stephen Miller, the president’s chief immigration hard-liner, Trump complained about the pending arrival of thousands of people from Muslim and predominantly African nations. They “all have AIDS,” Trump reportedly said, about immigrants from Haiti. As for Nigerians? Once they saw America, they would never “go back to their huts.”
All of this was separate from the president’s remarks on what he famously called “shithole countries” — those came the next year, when he found a fresh way to articulate his racist vision of immigration policy, where white Europeans are welcome and nonwhites are not.
Which is to say that it does not matter that Nigeria isn’t much of a national security threat or that Nigerians are among the most successful immigrants to the United States, surpassing native-born Americans in income and educational attainment. What matters is that they’re black and African and, for Trump, at the bottom of a racial hierarchy.
I’ve written before about the 1924 Immigration Act, also known as the Johnson-Reed Act, which codified a decade’s worth of nativist hysteria into law. It followed the Immigration Act of 1917, which imposed literacy tests on new immigrations and barred immigration from the Asia-Pacific region, and the Emergency Quota Act of 1921, which established the first per-country percentage limits on the number of immigrants to the United States. The 1924 act was the harshest. It was also the most far-reaching. Meant to reduce immigration from Southern and Eastern Europe, it also defined the American nation in explicitly racial terms.
The quota system established by Johnson-Reed, the historian Mae Ngai writes, “subtracted from the total United States population all blacks and mulattoes, eliding the difference between the ‘descendants of slave immigrants’ and the descendants of free Negroes and voluntary immigrants from Africa. It also discounted all Chinese, Japanese and South Asians as persons ‘ineligible to citizenship,’ including descendants of such people with American citizenship by native birth.”
In doing so, Ngai continues, the 1924 Immigration Act “excised all nonwhite, non-European peoples” from its “legal representation of the American nation,” setting the stage for the “racialization of immigrant groups around notions of whiteness, permanent foreignness and illegality.”
Trump is almost certainly ignorant of the Johnson-Reed Act (Stephen Miller, on the other hand, is not). But he’s channeling the impulse of that law — the attempt to cast the United States as a white nation, off-limits to those who don’t fit his preferred racial type. And with the Supreme Court’s blessing (granted to the revised version of the original travel ban), he’s doing just that: using his immigration policy to resurrect and reconstitute the exclusions of the early 20th century.
Although immigration policy deals with the external boundaries of the United States, the elevation of whiteness has internal consequences as well. Not because the president intends to distribute benefits and favors on the basis of race — although there are elements of that in his administration’s behavior — but because it sends a larger signal about who matters in this society. Every time Trump and other members of his administration make the decision to stratify and racialize, they are also making a statement about who receives a voice and who deserves respect.
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America needs Supremes with the expertise, legal understanding, and moral courage to stand up for the legal, Constitutional, and human rights of all persons against the Trump/Miller/GOP White Nationalist agenda.
By enabling the rebirth of Jim Crow, the “GOP Justices” are destroying America to enable a vile anti-social agenda of a neo-fascist regime!
An impeachment trial with no witnesses or evidence is very American
Opinion by David Love
Updated 9:53 AM ET, Tue February 4, 2020
Senator: This is a tragedy in every possible way 02:05
David A. Love is a writer, commentator and journalism and media studies professor based in Philadelphia. He contributes to a variety of outlets, including Atlanta Black Star, ecoWURD and Al Jazeera. Follow him on Twitter: @DavidALove. The opinions expressed in this commentary are his. View more opinion articles on CNN.
(CNN)The impeachment trial of President Donald Trump is a relative rarity in American political history, and yet aspects of it have the haunting familiarity of a sham trial in the Jim Crow South, where black people were routinely criminalized and murdered in the name of “justice.” Yes, there are certainly obvious differences between this political trial and the ones that many black Americans have faced, but the common thread remains: going through a trial that has already been decided before it even began.
David A. Love
There is little precedent for how to conduct only the third presidential impeachment trial ever to take place. However, with the Senate vote by the Republican majority to exclude witnesses — likely including former national security adviser John Bolton and indicted Rudy Giuliani associate Lev Parnas — the impeachment trial became nothing more than a kangaroo court with a predetermined outcome, a very American ritual of injustice masquerading as due process.
Comparing impeachment to Jim Crow jurisprudence, Rev. William J. Barber II of Repairers of the Breach and the Poor People’s Campaign summed it up when he tweeted: “In the old Jim Crow South, when racists harmed Black folks, the prosecutor & judge would conspire to have a fake trial & ensure the racists didn’t get convicted. We are seeing these same tactics play out in the impeachment trial under McConnell & it’s shameful.”
There is ample evidence the fix was in, that GOP senators had no intention of acting as impartial jurors. Senate Majority Leader Mitch McConnell, who said there was no chance the President would be removed from office, pledged to work closely and in “total coordination” with the White House on impeachment.
Senate Judiciary Committee chair Lindsey Graham said, “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.” And as some senators reportedly fell asleep and played with fidget spinners during the trial, Trump threatened to invoke executive privilege to block the testimony of former national security adviser John Bolton.
Boasting about hiding the impeachment evidence, Trump said “We have all the material. They don’t have the material.”
In a perfect example of jury nullification, Tennessee Republican Sen. Lamar Alexanderacknowledged Trump’s wrongdoing as “inappropriate,” yet supported acquittal and voted against witnesses. And Florida Sen. Marco Rubio wrote in a Medium post, “Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office.”
Preventing first-hand witnesses from testifying and new documents from being entered into evidence is very typical of how trials were conducted in the Jim Crow South, when gerrymandering, voter suppression and violence maintained white political rule, and all-white juries quickly convicted black defendants and exonerated white defendants without the need for evidence or deliberation.
For example, in 1955, Roy Bryant and J.W. Milam — two white men — went on trial in Mississippi for the brutal kidnapping, murder and mutilation of Emmett Till — a black 14-year old boy from Chicago.
It was obvious then, as now, that the trial was for show, almost more a justification for what had happened to Till. A white woman, the wife of one of the defendants, alleged Till had whistled at her (decades later she admitted to lying).
A number of witnesses were called, including two black men, one of whom identified the killers, and both of whom were threatened with death for testifying. However, the sheriff reportedly placed other black witnesses in jail to prevent them from testifying. An all-white-male jury — black people were effectively not allowed to vote or serve on juries — deliberated for only 67 minutes to deliver a not guilty verdict. Even the jurors knew they were participating in theater; “We wouldn’t have taken so long if we hadn’t stopped to drink pop,” one juror said.
Similarly, in 1931, nine black teens known as the Scottsboro boys were falsely accused of raping two white women in Alabama. While the boys were awaiting trial, a white mob threatened to lynch them. With the exception of the 13-year-old, they were swiftly sentenced to death by an all-white-male jury. Although none were executed, they collectively served 100 years in prison. Some of the boys were retried and reconvicted, and the Supreme Court twice overturned the guilty verdicts.
Echoes of Jim Crow jurisprudence continue to the present day, and even with attempts to reform the criminal justice system, injustices plague the poor and people of color, who are disproportionately incarcerated. When black and Latino teens, known as the Central Park Five, were falsely arrested, interrogated and coerced in the brutal rape and beating a white woman in New York, Trump placed a full-page ad in four newspapers calling for the death penalty. Even after the accused were exonerated by DNA evidence linking another person to the crime, as recently as last year, Trump has declined to apologize for his actions.
It is not surprising that Trump’s GOP would work overtime to conduct a fake impeachment trial with their own narrative and set of facts and no witnesses to avoid accountability. This, despite a CNN poll showing that 69% of Americans want to hear new witness testimony, and a Quinnipiac Poll in which 75% say witnesses should be allowed to testify. A recent Pew poll found a slight majority of Americans supporting Trump’s removal from office, with 63% saying he has definitely or probably broke the law, and 70% concluding he has done unethical things.
However, if the Senate does not reflect the will of most Americans, it is because the Senate is a fundamentally undemocratic institution that exercises minority rule. For example, on a strictly 53-47 party line vote, the Senate voted to reject a series of amendments to subpoena documents and witnesses (for the vote that decided whether to allow witnesses, two Republicans voted with Democrats in a vote that failed 49-51 to allow witnesses at Trump’s impeachment trial).
Those 53 Republican senators in the first vote, as author and reporter Ari Berman noted, represent 153 million Americans, as opposed to the 168 million people the Democratic senators represent. Minority rule is subverting democracy and the rule of law and undermining the popular will, resulting in unjust policies and decisions. This, as Republicans who control the Senate with a minority of popular support block the impeachment of a President who was elected with nearly 2.9 million fewer votes than his opponent. Jim Crow segregationists employed voter suppression, violence and coups to maintain power. Similarly, today’s GOP must rely on anti-democratic methods to cling to power in a changing America, and prop up a President who will most certainly stay in office through malfeasance, playing to xenophobic fear and threats of violence.
Meanwhile, US Supreme Court Chief Justice John Roberts, who has assumed the role of a potted plant throughout most the proceeding, helped create this mess by playing an active role in the erosion of democracy and the legitimacy of the political system. Under Roberts’ leadership, the high court has sanctioned gerrymandering, eviscerated voting rights, and allowed for unlimited money in our elections, including potentially from foreign sources.
If the Republicans hope for an end run around democracy with a kangaroo court, this is nothing new. Following in the footsteps of those who played a part in sham trials in the Jim Crow South, the Trump party cares little about justice, and everything about breaking the rules to maintain power in perpetuity. Unfortunately, sham trials are as American as apple pie.
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By aligning himself with the totally corrupt, lawless, and immoral Trump and his various scofflaw schemes, Roberts seems intent on following in the footsteps of the now reviled Chief Justice Roger Taney, author of the Dred Scott decision.
Obviously, given a chance at a Second Term, a Senate of toadies, and a complicit, willfully tone-deaf Supremes, Trump has every intention of “Dred Scottifying” immigrants, people of color, the LGBTQ community, political opponents, and other large segments of America.
“Corruption, impunity,” those are words that those of us who actually decided immigration cases saw often in country background information on third word dictatorships and autocracies. Now, thanks to Trump, his Senate toadies, and Article IIIs “go alongs,” those are also words that can be used to describe the American justice system.
In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:
“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”
Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”
The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.
For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.
How many inexperienced immigration judges would know that?
This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.
What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.
. . . .
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You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”
Here’s an actual anecdote that I received recently from a Courtside reader:
I had a merits hearing . . . with a new IJ with no immigration background at all. It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions. So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved. And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is. [He/She] didn’t say a word; we ran the hearing. The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.
What if it had been a contested hearing?
Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!
I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.
Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.
The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.
To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.
The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.
It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.
With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”
Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not! Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!
T.C. WILLIAMS HIGH SCHOOL STUDENT TEAM MAKES IMMIGRATION VIDEO FOR C SPAN STUDENTCAM 2020 COMPETITION!
T.C. Williams HS LogoT.C. Williams Titan Logo
Recently, I had the honor of working with a team of three talented T.C. Williams High School students and Mary Giovagnoli, Senior Counsel for Legal Strategy at , on a video interview about immigration issues in the upcoming 2020 election. Here is the result produced by the amazing student team of Amal Sharif, Ben Janusz, and Alex Conkey:
This video is an entry in the C-Span StudentCAM 2020 Competition.
T.C. Williams is the public high school for ‘Alexandria, Virginia, where Cathy and I have lived since 1973. All three of our adult children, Wick, Will, and Anna, attended the Alexandria City Public Schools and are proud graduates of T.C. Williams High School (“Remember the Titans”).
THE ROLE OF JUDGES TO “SAY WHAT THE LAW IS”: JUDICIAL OVERSIGHT OF IMMIGRATION ADJUDICATION
By Tess Hellgren, Staff Attorney and Justice Catalyst Legal Fellow
January 31, 2020
Since the beginning of the Trump Administration, the immigration court system has been used as a tool to further the executive branch’s anti-immigrant agenda. The Attorney General and other executive officials have enabled widespread due process violations and skyrocketing case backlogs while imposing case quotas and docketing rules that prevent judges from serving as impartial adjudicators.[1]
Last week, the Seventh Circuit highlighted a new abuse of power: the refusal of executive officials in the Board of Immigration Appeals (BIA) to follow a direct order from a federal court.
The BIA is the administrative body responsible for reviewing decisions that are appealed from sixty-eight immigration courts across the country. Like these immigration courts, the BIA is part of the Executive Office for Immigration Review (EOIR) – the immigration court system, located in the executive branch, that is ultimately overseen by the Attorney General of the United States. Despite the serious flaws inherent in the design of this system, BIA decisions may at least be appealed up to the appropriate federal circuit court, providing a crucial layer of independent judicial review in individual cases.[2]
In the case of Baez-Sanchez v. Barr, the Seventh Circuit had previously held that the immigration laws unambiguously grant immigration judges the power to waive a noncitizen’s inadmissibility to the United States, overruling the BIA’s prior decision to the contrary.[3] On remand, the BIA “flatly refused to implement” the court’s direct order.[4] Writing that the BIA’s decision “beggars belief,” the Seventh Circuit stated that
We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that [the Respondent] has not asked us to hold them in contempt, with all the consequences that possibility entails.[5]
This language is an extraordinary rebuke: it is very rare for a circuit court to issue an implicit threat to hold members of an administrative agency in contempt for directly disregarding a court order. The Seventh Circuit was clear that the BIA was mistaken if it thought that “faced with a conflict between our views and those of the Attorney General it should follow the latter.”[6] Affirming foundational separation of powers principles, the Seventh Circuit admonished that
[I]t should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government . . . Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.[7]
The Seventh Circuit’s decision also noted that the Attorney General had submitted a brief asking the court to give the BIA another opportunity to issue “an authoritative decision” on this issue, arguing that such a decision could be entitled to judicial deference.[8] The court aptly responded that this “request is bizarre,” as the court had already held that the applicable regulation was unambiguous – and an agency “cannot rewrite an unambiguous [law] through the guise of interpretation.”[9] As the Supreme Court made clear in Kisor v. Wilkie, “if the law gives an answer—if there is only one reasonable construction of a regulation—then a court has no business deferring to any other reading, no matter how much the agency insists it would make more sense.”[10]
Notably, even if the Seventh Circuit had found the laws in question to be ambiguous, the Attorney General and members of the BIA do not have free reign to impose any interpretation they choose. It is true that federal courts must defer to the reasoned decisions of administrative agencies when Congress has left the agency’s discretion to interpret an ambiguous provision of law, under the doctrine of Chevron deference.[11] But this deference is not boundless. As the Supreme Court made clear in Chevron, courts should defer to agencies’ interpretation of ambiguous statutes when the agency interpretation is “a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute.”[12] The agency’s interpretation must thus still fall “within the bounds of reasonable interpretation.”[13]
This standard, and the Seventh Circuit’s reprimand, is especially important as the Attorney General attempts to aggressively expand his control of immigration court adjudication. Under the Trump Administration, the Attorneys General have issued a number of “certified” decisions that attempt to restrict eligibility for asylum based on factors such as domestic violence, gang violence, or past persecution due to family membership.[14] In these decisions, which upend years of established immigration precedent, the Attorney General has pointedly asserted his authority to construe the terms of the Immigration and Nationality Act and implied that federal courts must fall in line with his interpretations.[15]
Yet the Attorney General’s reasoning holds only if his interpretations are actually entitled to judicial deference: if the laws in question are ambiguous and the federal courts find his interpretations reasonable.[16] And as the Supreme Court has admonished, “let there be no mistake: That is a requirement an agency can fail.”[17] Indeed, in addressing the application of the Attorney General’s certified decision in Matter of A-B-, at least one federal court has already held that a “general rule against domestic violence and gang-related claims during a credible fear determination is arbitrary and capricious and violates the immigration laws.”[18]
Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever. As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”[19]
[11]Chevron v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
[12]Id.at 844–45; see also 5 U.S.C. § 706(2) (a reviewing court shall set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”).
[13]See Kisor, 139 S.Ct. at 2416, quotingArlington v. FCC, 569 U.S. 290, 296 (2013).
[14]See Matter of A-B-, 27 I&N Dec. 316 (2018);Matter of L-E-A-, 27 I&N Dec. 581 (2019). Note inconsistencies
[15]See Matter of A-B-, 27 I&N at 326–27; Matter of L-E-A-, 27 I&N at 591–92.
[16]SeeNat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (allowing for agency interpretation to override judicial interpretation in certain circumstances, when the agency interpretation is “otherwise entitled to Chevron deference”).
THE NEED FOR AN INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT: A New “Video Short” From AILA Productions!
Starring (in order of appearance):
Hon. A. Ashley Tabaddor President, National Association of Immigration Judges (“NAIJ”)MeJeremy McKinney, Esquire Greensboro, NC AILA 2nd Vice PresidentProfessor Shoba Wadhia Penn State Law
Matter of J.J. RODRIGUEZ, 27 I&N Dec. 762 (BIA 2020)
PANEL: MALPHRUS, Acting Chairman; CREPPY and CASSIDY, Board Members.
OPINION BY: Acting Chairman Malphrus
BIA HEADNOTE:
Where the Department of Homeland Security returns an alien to Mexico to await an immigration hearing pursuant to the Migrant Protection Protocols and provides the alien with sufficient notice of that hearing, an Immigration Judge should enter an in absentia order of removal if the alien fails to appear for the hearing.
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Let’s put this in context!
This is an unrepresented asylum seeker “orbited” back to dangerous and chaotic conditions in Mexico. We don’t even know if he’s still alive.
He’s a native of Honduras. Obviously, he fled Honduras and sought admission to the United States for a reason. His only chance of not being returned to Honduras would be to show up for his hearing. Therefore, he would have no obvious reason for failing to appear at his hearing if he were able to do so.
In the past, in cases such as this, the DHS would have either: 1) released the respondent on bond to a known address in the United States that they would have recorded and furnished to EOIR; or 2) detained the respondent.
In the former case, the DHS would have been obliged to provide EOIR with a facially valid address to serve notices at the time of filing the Notice to Appear with the court. In the latter case, the DHS would be responsible for producing the respondent for all scheduled hearings.
Instead, in this case, the DHS chose under the mis-named “Migrant Protection Protocols” (“MPP”) (which are actually designed to reject rather than protect migrants) to abdicate its normal duties and send the respondent to an unknown location in Mexico without any reasonable safeguards to insure access to the hearing process or to counsel.
The DHS has no practical idea where they sent the respondent in Mexico and no reasonable method for contacting him or retrieving him.
Incredibly, and apparently with a straight face, the BIA lists the address of the respondent as “Domicilio Conocido, Tijuana, Baja California, Mexico.” That’s roughly the equivalent of “Manhattan, New York City, New York, USA.” Good luck with that!
How would a U.S. lawyer get in touch with the respondent? How would the Immigration Court notify the respondent of the ever-changing times and dates of hearings? How would the DHS serve the respondent with notices of evidence? Obviously, they wouldn’t.
And, if the respondent failed to appear for a non-existent hearing, he undoubtedly would be “in absentia’d” under the BIA’s warped view of what is fair and reasonable. This whole MPP has obviously been constructed by DHS, with EOIR complicity, as an exercise in naked bad faith and intentional and unreasonable inconvenience to the respondents caught up in it.
In formalizing the MPP, the DHS could have worked cooperatively with the Mexican Government and the private bar to guarantee the respondent’s statutory rights to: 1) return to the United States for his removal hearing; and 2) reasonable access to pro bono counsel in the United States. The DHS chosenot to do either, thereby leaving these statutory obligations potentially unachievable for this respondent. Through the BIA’s mental gymnastics, the DHS’s intentional indolence becomes the respondent’s problem!
It’s common knowledge that individuals returned to Mexico under the MPP are often forced to live on the streets and are in constant danger of kidnaping, extortion, robbery, rape, assault, starvation, and exploitation while in Mexico awaiting hearings.
The DHS makes no effort to ascertain what happens to those sent back to Mexico under the MPP and takes no steps to insure that they are able to return to the U.S. border for their hearings.
The DHS has provided no reason to believe that individuals “relocated” after returning to Mexico either understand what is happening to their hearing rights or have any realistic mechanism for retuning.
Under these circumstances, there is a rebuttable presumption that individuals returned under the MPP who do not appear for immigration hearings have been denied both their statutory right to the hearing process and their statutory right to representation by counsel of their own choosing at no expense to the Government. These statutory rights are integral to insuring due process in the removal hearing process.
The DHS may rebut this presumption by showing either: 1) they made reasonable efforts to locate this respondent in Mexico; or 2) there are reasonable procedures in place with the Mexican Government and with pro bono providers to provide reasonable access to hearings and pro bono counsel that were available to the respondent in this case.
Since the DHS has made no such showing in this case, the Immigration Judge’s decision to terminate the proceedings without an in absentia order is reasonable and proper under the law. Indeed, it is the only lawful outcome.
This is especially true because there doesn’t appear to be any effective way an individual who was inhibited from return to the United States from Mexico for his hearing can seek to reopen an in absentia hearing from Mexico or some other country to which he might have been “orbited” by the Mexican Government.
Indeed, the process followed by the DHS in this case appears to be an intentional derogation of the normal statutory right to a stay of removal from the United States to which an individual challenging an in absentia removal order ordinarily would be legally entitled.
This is, of course, without prejudice to the DHS reinstituting removal proceedings in the future if the respondent is encountered at the border or in the United States.
Sadly, the BIA isn’t the only tribunal to “blow off” their statutory and constitutional responsibilities.
The feckless judges of the Ninth Court of Appeals “took a dive” on their oaths of office by “greenlighting” the illegal (not to mention totally dishonest and immoral) MPP by vacating the District Court’s properly issued preliminary injunction in Innovation Law Lab v. McAleenan.
As a result of the Ninth Circuit’s dereliction of duty, thousands of vulnerable asylum seekers have been irreparably injured.
Eventually, the MPP will go down as not only fraudulent and invidiously racially motivated, but as one of the most horrible, and preventable, failures of justice in modern American jurisprudence. It will rank right up there with Dred Scott., the Fugitive Slave Laws, “separate but equal,” Chinese Exclusion Laws, and Japanese internment of supposedly bygone ages. Dehumanization, exploitation, and abuse of Government authority is a common theme. It will indelibly stain the reputations of every bureaucrat and judge who touched it without “just saying no.”
While it might already be too late for many of the innocent victims of MPP, no amount of legal gobbledygook or “alternative facts” will save those responsible for initiating, carrying out, and enabling the MPP and similar violations of legal, constitutional, and human rights, and well as human morality, from the judgments of history!
4th CIR. NABS BIA VIOLATING DUE PROCESS, AGAIN: Yes, Guys, Believe It Or Not You Should Allow the Respondent To Actually TESTIFY Before Sustaining An “Adverse Credibility” Finding! — Atemnkeng v. Barr – Plus, Bonus Mini-Essay: “When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
Atemnkeng v. Barr, 4th Cir. Jan. 24, 2020, published
PANEL: GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.
OPINION BY: Chief Judge Gregory
KEY QUOTE:
Ngawung Atemnkeng, a citizen of Cameroon, fled her country after participating in
anti-government meetings and protests, getting arrested and was detained without trial several times, being tortured and beaten by government officers, and receiving numerous death threats. An immigration judge (“IJ”) initially noted some inconsistencies in Atemnkeng’s application, but nevertheless found her credible and her explanations plausible, and granted her asylum application. On appeal, the Board of Immigration Appeals (“BIA”) reversed the IJ’s determination and instructed the IJ, in reviewing the asylum application a second time, to afford Atemnkeng an opportunity to explain any inconsistencies.
On remand, Atemnkeng has now relocated to Baltimore and the new IJ (“Baltimore IJ”) permitted her to submit additional documents in support of her asylum application and scheduled a master calendar hearing. Approximately one month prior to the hearing, however, the Baltimore IJ issued a written ruling denying Atemnkeng’s applications for asylum and other reliefs. The Baltimore IJ concluded, without Atemnkeng’s new testimony, that she was not credible in light of inconsistencies in her story. On a second appeal to the BIA, the Baltimore IJ’s ruling was affirmed without an opinion. Atemnkeng now petitions for review of the BIA’s summary affirmance of the Baltimore IJ’s rulings.
In her petition for review, she raises several claims, most notably, that her due process rights were violated when the Baltimore IJ deprived her of an opportunity to testify on remand. Concluding that Atemnkeng’s claim related to her ability to testify is
meritorious, we grant the petition for review, vacate the BIA’s affirmance, and remand for 2
further proceedings. In light of our conclusion that the Baltimore IJ failed to give Atemnkeng an opportunity to testify and weigh the relevance of that testimony in conjunction with the entire record, we decline to address whether the adverse credibility determination and denials of Atemnkeng’s applications for withholding of removal and relief under the Convention Against Torture (“CAT”) were erroneous.
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When Will Life-Tenured Judges Stop Enabling The Arrogant Trashing Of Due Process By Our Authoritarian Regime?”
By Paul Wickham Schmidt
“Courtside” Exclusive
Jan. 1, 2020
Giving someone a chance to testify in person and explain apparent discrepancies, particularly when the case was for remanded for just that reason, seems like “Law 101.” It’s so elementary, I wouldn’t even include it on a final exam!
After all, simple logic, unclouded by a philosophy of treating migrants as a subclass whose legal rights judges often parrot but seldom enforce, would say that “Due Process is at its zenith” when human lives are at stake, as was the case here. It’s also required not only by the Constitution, but by BIA precedents like Matter of A-S-. So, how does this “go south” at EOIR?
Following precedents where it might help a respondent, be it a BIA or a Circuit precedent, seems to have become largely “optional” in the Immigration Courts these days, as I have previously observed. Instead, with constant encouragement from a White Nationalist, xenophobic regime, and lots of complicit judges at all levels, Due Process has largely been wiped out in Immigration Court.
Thank goodness this respondent, represented by long-time practitioner Ronald Richey (an Arlington Immigration Court regular” during my tenure), had the wherewithal to get to the Fourth Circuit and to draw a panel of judges interested in setting things right.
Think about what might have happened if she had landed in a complicit, largely “Decency Free Zone” like the Fifth or Eleventh Circuits, known for “going along to get along” with almost any abuse of migrants’ rights by the Government.
When are all Article III Judges going to start “connecting the dots” and asking why a supposedly “expert tribunal” whose one and only job should be to painstakingly insure that nobody is denied relief and removed from the United States, particularly to potential torture or death, without full Due Process and fundamental fairness is making fundamental mistakes in churning out removal orders.
Once upon a time, EOIR, the “home” of the Immigration Courts set out to use “teamwork and innovation to become the world’s best administrative tribunals, guaranteeing fairness and due process for all.”Not only has that “noble vision” been totally trashed, but the exact opposite has become institutionalized at EOIR: “Worst practices,” badly skewed pro-prosecutor hiring, inadequate professional training, lack of expertise, speed and expediency elevated over quality and care, intentional institutionalization of anti-immigrant, anti-asylum, pro-DHS bias, demeaning treatment of respondents and their lawyers, and the extermination of judicial independence and public accountability.
Today’s EOIR is truly a grim place, particularly for those whose lives are being destroyed by its substandard performance and also for the attorneys trying desperately to save them. Obviously, most Article IIIs have insulated themselves from the practical humanitarian disasters unfolding in Immigration Courts every day under their auspices.
What do they think happens to folks who can’t afford to be represented by Ronald Richey or one of his colleagues and whose access to pro bono counsel is intentionally hampered or impeded by EOIR? Think they have any chance whatsoever of a “fundamentally fair hearing” that complies with Due Process? Hearings for unrepresented individuals in detention are so grotesquely ridiculous that EOIR and DHS have gone to extreme lengths to impede public access so their abuses will take place in secret. Just ask my friendLaura Lynch over at AILA or my colleague Judge Ilyce Shugall of our Round Table what it’s like simply trying to get EOIR and DHS to comply with their own rules.
Listen folks, I helped formulate and implement the Refugee Act of 1980 as a Senior Executive in the “Legacy INS” during the Carter and Reagan Administrations. I even represented a few asylum applicants in private practice, something most Article III Judges and even many Immigraton Judges have never done. In 21 years on the “Immigration Bench” at both the trial and appellate levels, I personally listened to, read, or reviewed on appeal more asylum cases than any sitting Article III Judge of whom I’m aware.
The various parodies and travesties of justice in today’s Immigration Courts are eerily similar to, or in some cases the same, as I used to hear and read about in some of the third-world dictatorships, banana republics, and authoritarian tyrannies I dealt with on a regular basis. It’s simply infuriating, and beyond my understanding, that privileged, life-tenured, Article III Judges in our country, sworn to uphold our laws and Constitution, can continue to permit and so “glibly gloss over” these violations of law and gross perversions of human decency.
And, that goes right up to the Supremes’ intentional, disingenuous “tone deaf” approach to ignoring the real unconstitutional, invidious motives and fabrications behind the Administration’s original “Travel Ban.” All of the fatal legal defects were carefully documented and explained by various lower court judges trying conscientiously to uphold their oaths of office and “do the right thing.” Instead they were “dissed” by the Supremes and their hard work was ignored and denigrated. Fake, exaggerated, or “trumped up” “national security” pretexts for abusive treatment of “others” and political or religious opponents is a staple of persecuting regimes everywhere, as it now has become a judicially-enable staple of our current regime.
It’s long past time for the Article IIIs to wake up and put an end to the systemic nonsense that is literally killing people in our dysfunctional Immigration Court system. Is this the type of system to which you would entrust YOUR life, judges? If not, and I severely doubt that it is, why does it pass for “Due Process” for some of the most vulnerable among us? Think about it?
The Trump administration has named a hardline former leader of an anti-immigration group to help set up a new role created by Congress to oversee complaints of civil rights violations in detention centers and help those affected by misconduct, according to an internal memo obtained by BuzzFeed News.
The Office of the Immigration Detention Ombudsman was created in the most recent appropriations bill to “address issues that arise in DHS detention facilities” and remain independent of Immigration and Customs Enforcement or US Customs and Border Protection. The office will report directly to the secretary of Homeland Security.
Ken Cuccinelli, the controversial second-in-command at the Department of Homeland Security, appointed Julie Kirchner, former leader of FAIR, a group that advocated for policies that restrict immigration, to help set up the office, according to the memo. Cuccinelli also tapped Tracy Short — a former top ICE official who signed memos during the Trump administration to stop the agency from granting reprieves for certain immigrants facing deportation — to also help figure out the plans for the office.
“To spearhead this effort, I have asked Julie Kirchner, outgoing Citizenship and Immigration Services Ombudsman, and Tracy Short, Senior Advisor at Immigration and Customs Enforcement, to work with senior leadership and staff within the Department to lay the proper foundation for the [office],” according to the memo, which was dated Jan. 28.
Congress provided $10 million for the office to address issues of misconduct by DHS officials in detention centers, establish a process to oversee complaints made against immigration officials, inspect facilities, provide recommendations for improvement, and potentially help those whose rights have been violated while in custody.
“In the immediate days and weeks Julie and Tracy will be contacting a variety of individuals across the Department to solicit their input and request information regarding the formation of this new office,” Cuccinelli wrote.
Kirchner was initially picked as the ombudsman at USCIS in 2017, before her departure in the role was announced late last year.
When her appointment was originally announced in 2017, advocacy groups were outraged, due to her background at FAIR, which the Southern Poverty Law Center had labeled a hate group and “America’s most influential anti-immigrant organization.”
“Kirchner’s new position is a very powerful one, which it makes it all the more disturbing considering her past work,” the SPLC said at the time.
The move to appoint Kirchner and Short to help “lay the proper foundation” for the office will likely spur criticism from Congressional officials.
“That’s like letting the fox watch the hens,” said one congressional staffer in a message to BuzzFeed News.
John Sandweg, former acting head of ICE during the Obama administration, said the move was not surprising, but potentially indicative of how the administration sees the role.
“These are the architects of the Trump administration’s immigration enforcement policies,” he said. “It’s not a surprise they would try to build this thing in a way that makes it as less impactful as possible and seems inconsistent with the intent of Congress when they created the office. We have to wait to see what the end product is.”
DHS did not immediately comment.
ICE has expanded the number of people it detains to record levels under President Trump. As of late January, the agency was detaining nearly 41,000 immigrants. The peak came last summer, when around 55,000 immigrants were in custody in local jails and private prisons across the country.
In December, the House Oversight and Reform Committee announced it had opened an investigation into the medical care of immigrant detainees in the wake of a BuzzFeed News story that revealed a series of allegations of substandard care from a whistleblower.
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Totally corrupt!
“Wait and see what the end product is?” John Sandweg, are you really so naive that you think Kirchner will do her job and help detainees to be treated like humans? Come on, man! No way! We already know what’s going too happen. And, it will be the exact opposite of what Congress intended in enacting this legislation. But, it’s not like Congress, or the courts for that matter, hold this regime accountable for scofflaw conduct.
She’s there to insure that cruel and inhuman treatment are the norms, there is no accountability, and that the legion of DHS detention abuses (the “core concept” of the “New American Gulag”) are covered up. In other words, to insure maximum dehumanization, a key part of the regime’s nativist agenda. What in Julie Kirchner’s anti-immigrant zealotry, or Tracy Short’s for that matter, would make you think that there is any “ambiguity” on how this will play out?
Keep those court cases rolling! Notwithstanding their tendency toward complicity, eventually, at least some Federal Judges hopefully can be “shamed” into enforcing laws protecting migrants, recognizing human rights, and requiring human dignity in DHS’s treatment of detainees (most of whom don’t belong in “uncivil” detention in the first place).
Ian M. Kysel Visiting Assistant Clinical Professor of Law, Cornell Law School
Here’s a summary from New Due Process Army stalwart and Georgetown Law graduate Ian M. Kysel, Visiting Assistant Clinical Professor of Law, Cornell Law School:
As the amicus briefs in the 9th circuit appeal in Flores rolled in last night, I wanted to flag one in particular on which I am co-counsel: anamicus brief by more than 125 legal scholars and non-governmental organizations. It is attached. In it, we argue that a decision by the 9th circuit allowing the government’s regulations to enter into force would violate U.S. international law obligations. The amici on this brief include several current or former senior UN human rights experts from around the world (including members of the UN Human Rights Committee and the Committee on the Rights of the Child) as well as the former Deans of both Harvard Law School and Yale Law School (the latter, Harold Hongju Koh, also formerly served in government as both Legal Adviser and Assistant Secretary of Democracy, Human Rights and Labor at the U.S. Department of State). It is unusual to have so many senior experts on an amicus brief at the court of appeals level. The experts make clear to the 9th circuit that the government’s effort to permit indefinite detention of migrant children, including asylum seekers, in secure or more secure facilities with limited ability to challenge aspects of their detention, would violate core human rights protections (including children’s right to be free from unlawful detention and their rights to special measures of protection and to consideration of the best interests of the child) and that the regulations should remain enjoined, as continued enforcement of the settlement remains in the public interest.
Here’s a link to the brief, a “mini-treatise” on the rights of child migrants under international law:
Under Article VI of the Constitution and Supreme Court precedent, U.S. courts have an obligation to enforce customary international law binding on the United States, as well as to construe federal law consistently with the United States’ obligations under customary international law and treaties ratified by the United States. The Government’s enjoined regulations,2 which repudiate the terms of the Stipulated Settlement Agreement in Flores v. Barr (“Flores Settlement”), would violate international law, including the United States’ treaty obligations and customary international law. This Court should decide the appeal in a manner consistent with U.S. obligations under international law. The policy changes the Government asks this Court to approve would violate the United States’ obligations to safeguard the rights of children to be free from unlawful detention. Under international law, the United States must provide children with special measures of protection and ensure children’s best interests are always a primary consideration. This Court should therefore affirm the District Court.
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Thanks to Ian and all of his wonderful colleagues for speaking up for the legal (and human) rights of some of the world’s most vulnerable children to be protected against further intentional abuses by the Trump regime and its corrupt intellectually and morally bankrupt bureaucratic toadies (past, present, and, unfortunately, future).
I had the great pleasure of working with Ian and some of his colleagues, including some of my own students and former students, on the International Migrants’ Bill of Rights Initiative at Georgetown Law now continuing at Cornell Law under the leadership of Ian and my long time friend and colleague Professor Stephen Yale-Loehr.
The original International Migrants’ Bill of Rights Initiative at Georgetown Law was the “brainchild” of my good friends, renowned public international law expert Professor David Stewart, former Georgetown Law Dean and U.N. Deputy High Commissioner for Refugees Alex Aleinikoff, CALS Asylum Clinic Director Professor Andy Schoenholtz, and many others.
It’s hard to describe how satisfying it is to see younger folks that I have taught and/or mentored during my career go on to become leaders of the New Due Process Army and to continue the generational battle to make Due Process for migrants a reality, rather than the cruel and lawless charade and parody of justice that it has some under this regime.
Thanks again to Ian and all the others like him for taking up up the fight. And, of course, many thanks to Steve and other scholars and teachers like him for “keeping the fires of Due Process burning bright even during one of American Democracy’s darkest nights!”
Hernandez-Chacon v. Barr, 2d Cir., 01-23-20, published
PANEL: WESLEY, CHIN, and BIANCO, Circuit Judges
OPINION BY: Judge Chin
KEY QUOTE:
2. Political Opinion
To demonstrate that persecution, or a well‐founded fear of
persecution, is on account of an applicantʹs political opinion, the applicant must show that the persecution ʺarises from his or her own political opinion.ʺ Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Thus, the applicant must ʺshow, through direct or circumstantial evidence, that the persecutorʹs motive to persecute arises from the applicant’s political belief.ʺ Id. (emphasis added). The
See Vega‐Ayala v. Lynch, 833 F.3d 34, 40 (1st Cir. 2016) (ʺVega‐Ayalaʹs general reference to the prevalence of domestic violence in El Salvador does little to explain how ʹSalvadoran women in intimate relationships with partners who view them as propertyʹ are meaningfully distinguished from others within Salvadoran society.ʺ). But see Alvarez Lagos v. Barr, 927 F.3d 236, 252‐55 (4th Cir. 2019) (remanding for agency to consider whether ʺgroup of unmarried mothers living under the control of gangs in Honduras qualifies as a ʹparticular social group,ʹʺ where record contained evidence that gang in question did ʺindeed target victims on the basis of their membership in a socially distinct group of unmarried mothersʺ).
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persecution may also be on account of an opinion imputed to the applicant by the persecutor, regardless of whether or not this imputation is accurate. See Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007) (ʺ[A]n imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground for political persecution.ʺ (internal quotation mark omitted) (quoting Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005)). The BIA has explained that persecution based on political opinion is established when there is ʺdirect or circumstantial evidence from which it is reasonable to believe that those who harmed the applicant were in part motivated by an assumption that [her] political views were antithetical to those of the government.ʺ Matter of S‐P‐, 21 I. & N. Dec. 486, 494 (B.I.A. 1996); see also Vumi v. Gonzalez, 502 F.3d 150, 157 (2d Cir. 2007).
Here, Hernandez‐Chacon contends that if she is returned to El Salvador she will be persecuted by gang members because of her political opinion ‐‐ her opposition to the male‐dominated social norms in El Salvador and her taking a stance against a culture that perpetuates female subordination and the brutal treatment of women. She argues that when she refused to submit to the violent advances of the gang members, she was taking a stance against a culture of male‐domination and her resistance was therefore a political act.
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There is ample evidence in the record to support her claim.6 Gangs control much of El Salvador, including the neighborhood in which Hernandez‐ Chacon lived. The law enforcement systems that would normally protect women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when the first gang member tried to rape her, she resisted ʺbecause [she had] every right to.ʺ Id. at 193. Three days later, when the same man and two other gang members attacked her, she again resisted, to the point where they beat her until she lost consciousness. She argues that the men targeted her for the second attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an MS gang member and they believed she needed to be punished for her act of defiance. Her now husband likewise stated in his affidavit that Hernandez‐ Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed to fight them off twice, but that just makes them angrier and if she shows her face again, I think they could kill her.ʺ Id. at 269.
At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result.
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While the IJʹs decision was thorough and thoughtful overall, her
analysis of Hernandez‐Chaconʹs political opinion claim was cursory, consisting of the following:
[Hernandez‐Chacon] has also claimed that she had a political opinion. I cannot conclude that her decision to resist the advances of an individual is sufficient to establish that she has articulated a political opinion. In trying to analyze a political opinion claim, the Court has to consider the circumstances under which a respondent not only possessed a political opinion, but the way in which the circumstances under which she articulated that political opinion. In this case she did not advance a political opinion. I find that she simply chose not to be the victim and chose to resist being a victim of a criminal act.
Id. at 153‐54.
The BIA dismissed Hernandez‐Chaconʹs political opinion argument
in a single sentence, in a footnote, rejecting the claim ʺfor the reasons stated in the [IJʹs] decision.ʺ Id. at 5 n.3. The analysis of both the IJ and the BIA was inadequate. See Yueqing Zhang, 426 F.3d at 548‐49 (granting petition for review and remanding case to agency where IJ failed to undertake the ʺcomplex and contextual factual inquiryʺ necessary to determine if persecution was on account of political opinion). We have three areas of concern.
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First, the agency concluded that Hernandez‐Chacon ʺdid not advance a political opinion.ʺ Cert. Adm. Record at 154. But this Circuit has held that the analysis of what constitutes political expression for these purposes ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum applicantʹs activities in relation to the political context in which the dispute took place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang, 426 F.3d at 548). We have held, for example, that resisting corruption and abuse of power ‐‐ including non‐governmental abuse of power ‐‐ can be an expression of political opinion. See Castro, 597 F.3d at 100 (noting that ʺopposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecutionʺ); Delgado, 508 F.3d at 706 (holding that refusing to give technical assistance to the FARC in Columbia can be expression of political opinion); Yueqing Zhang, 426 F.3d at 542, 546‐48 (holding that retaliation for opposing corruption of local officials can constitute persecution on account of political opinion); Osorio v. INS, 18 F.3d 1017, 1029‐31 (2d Cir. 1994) (holding that ʺunion activities [can] imply a political opinion,ʺ and not merely economic position). The Fourth Circuit has recently recognized that the refusal to acquiesce to gang violence can constitute
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an expression of political opinion. See Alvarez Lagos, 927 F.3d at 254‐55 (where record contained evidence that gang in question would view refusal to comply with demand for sex as ʺpolitical opposition,ʺ refusal to acquiesce to gang violence and flight to United States could demonstrate imputed anti‐gang political opinion that constitutes protected ground for asylum). Here, the agency did not adequately consider whether Hernandez‐Chaconʹs refusal to acquiesce was ‐‐ or could be seen as ‐‐ an expression of political opinion, given the political context of gang violence and the treatment of women in El Salvador.
Second, the IJ concluded that Hernandez‐Chacon ʺsimply chose to not be a victim.ʺ Cert. Adm. Rec. at 154. But even if Hernandez‐Chacon was motivated in part by her desire not to be a crime victim, her claims do not necessarily fail, as her political opinion need not be her only motivation. See
8 U.S.C. § 1158(b)(1)(B)(i) (ʺThe applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.ʺ (emphasis added)); Osorio, 18 F.3d at 1028 (ʺThe plain meaning of the phrase ʹpersecution on account of the victimʹs political opinion,ʹ does not mean persecution solely on account of the victimʹs political opinion.ʺ); see also Vumi, 502 F.3d at 158 (remanding to
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agency where BIA failed to engage in mixed‐motive analysis). While Hernandez‐Chacon surely did not want to be a crime victim, she was also taking a stand; as she testified, she had ʺevery rightʺ to resist. As we have held in a different context, ʺopposition to endemic corruption or extortion . . . may have a political dimension when it transcends mere self‐protection and represents a challenge to the legitimacy or authority of the ruling regime.ʺ Yueqing Zhang, 426 F.3d at 547‐48. Here, Hernandez‐Chaconʹs resistance arguably took on a political dimension by transcending mere self‐protection to also constitute a challenge to the authority of the MS gang.
Third, the agency did not consider whether the gang members imputed a political opinion to Hernandez‐Chacon. This Circuit has held that ʺan imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the Immigration and Nationality Act.ʺ Vumi, 502 F.3d at 156 (citations omitted); see Chun Gao, 424 F.3d at 129 (in case of imputed political opinion, question is ʺwhether authorities would have perceived [petitioner] as [a practitioner of Falun Gong] or as a supporter of the movement because of his activitiesʺ). Here, the IJ erred in her political opinion analysis by only considering whether Hernandez‐
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Chacon ʺadvance[d]ʺ a political opinion. Cert. Adm. Rec. at 154. The IJ failed to consider whether the attackers imputed an anti‐patriarchy political opinion to her when she resisted their sexual advances, and whether that imputed opinion was a central reason for their decision to target her. See Castro, 597 F.3d at 106 (holding that to properly evaluate a claim of political opinion, IJ must give ʺcareful consideration of the broader political contextʺ). In fact, as the gang members attacked her the second time, one of them told her that because she would not ʺdo this with him in a good way, it was going to happen in a bad way,ʺ Cert. Adm. Rec. at 186, which suggests that the gang members wanted to punish her because they believed she was taking a stand against the pervasive norm of sexual subordination.
We note that the Fourth Circuit recently granted a petition for review in a case involving a woman in Honduras who was threatened by a gang in similar circumstances. The Fourth Circuit concluded that if, as the petitioner alleged, the gang had imputed to her ʺan anti‐gang political opinion, then that imputed opinion would be a central reason for likely persecution if she were returned to Honduras.ʺ See Alvarez Lagos, 927 F.3d at 251. The court held that the IJ erred by not considering the imputed political opinion claim, that is,
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whether the gang believed that the petitioner held an anti‐gang political opinion. Id. at 254. Likewise, here, the agency did not adequately consider Hernandez‐ Chaconʹs imputed political opinion claim.
Accordingly, we hold that the agency erred in failing to adequately consider Hernandez‐Chaconʹs claim of persecution or fear of persecution based on actual or imputed political opinion.
CONCLUSION
For the reasons set forth above, the petition is GRANTED with respect to Hernandez‐Chaconʹs political opinion claim and the case is REMANDED to the BIA for proceedings consistent with this opinion.
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Heather Axford Senior Staff Attorney Central American Legal Assistance Brooklyn, NY
To state the obvious:
Many more women from El Salvador should be getting mandatory relief under CAT based on “torture with government acquiescence,” regardless of “nexus” which is not a requirement in CAT cases. Indeed, in a properly functioning and fair system these could probably be “blanket grants” provided the accounts are credible and documented (or they could be the basis for a TPS program for women fleeing the Northern Triangle, thus reducing the burden on the Immigraton Courts);
Compare the accurate account of the horrible conditions facing women inEl Salvador set forth by the Immigration Judge and the Second Circuit in this case with the fraudulent and largely fictionalized account presented by unethical Attorney General Sessions in his Matter of A-B– atrocity. Here are some excerpts from Judge Chin’s opinion which shows the real horrors that women face in El Salvador as opposed to he largely fictionalized version fabricated by Sessions:
In her decision, the IJ reviewed relevant country conditions in El Salvador, including the prevalence of violence against women and ʺthe dreadful
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practice of El Salvadorʹs justice system to favor aggressors and assassins and to punish victims of gender violence.ʺ Id. at 147. The IJ relied on the declaration of Aracely Bautista Bayona, a lawyer and human rights specialist, who described ʺthe plight of women in El Salvador,ʺ id.,3 and recounted the following:
One of ʺthe most entrenched characteristics of Salvadoran society is machismo, a system of patriarchal gender biases which subject women to the will of men. Salvadorans are taught from early childhood that women are subordinate.ʺ Id. Salvadoran society ʺaccepts and tolerates men who violently punish women for violating these gender rules or disobeying male relatives.ʺ Id. Indeed, in El Salvador, ʺfemicide remain[s] widespread.ʺ Id. at 148; see also U.S. Depʹt of State, Bureau of Democracy, H. R. and Labor, Country Reports on Human Rights Practices for 2015 for El Salvador (2015) (ʺCountry Reportʺ). Gangs in El Salvador view women as the property of men, and gang violence against women outside the gang ʺmanifest[s] itself in a brutality that reflects these extreme machismo attitudes.ʺ Cert. Adm. Rec. at 148.
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The IJ noted that Bayona had ʺfor more than two and a half decades worked and advocated for the rights of women, children, adolescents and youth in the migrant population in El Salvador.ʺ Cert. Adm. Rec. at 138.
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ʺEl Salvador has the highest rate in the world [of femicide] with an average of 12 murders for every 100,000 women.ʺ Id. at 148‐49. As an article on El Salvadorʹs gangs concluded, ʺin a country terrorized by gangsters, it is left to the dead to break the silence on sexual violence . . . , to the bodies of dead women and girls pulled from clandestine graves, raped, battered and sometimes cut to pieces. They attest to the sadistic abuse committed by members of street gangs.ʺ Id. at 149 (quoting El Salvadorʹs Gangs Target Women and Girls, Associated Press, Nov. 6, 2014).
As the State Department has found, rape, sexual crimes, and violence against women are significantly underreported because of societal and cultural pressures on victims and fear of reprisal, and the laws against rape ʺare not effectively enforced.ʺ Country Report at 7. Police corruption in El Salvador is well‐documented, including involvement in extra‐judicial killings and human rights abuses. See id. at 1. The judicial system is also corrupt. While the law provides criminal penalties for official corruption, ʺthe government d[oes] not implement the law effectively, and . . . officials, particularly in the judicial system, often engage[] in corrupt practices with impunity.ʺ Id. at 6. ʺLike Salvadoran society as a whole, law enforcement officials, prosecutors, and judges
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discriminate against women, reduce the priority of womenʹs claims, and otherwise prevent women from accessing legal protections and justice. This results in impunity for aggressors, which reinforces aggressorsʹ perception that they can inflict violence without interference or reprisal.ʺ Cert. Adm. Rec. at 300‐ 01.
The IJ observed that Hernandez‐Chaconʹs experiences were ʺgenerally consistent with the background materials she has submitted in regards to pervasive brutal attacks by El Salvadoran gangs.ʺ Id. at 149‐50.
. . . .
There is ample evidence in the record to support her claim [of political; persecution].6 Gangs control much of El Salvador, including the neighborhood in which Hernandez‐ Chacon lived. The law enforcement systems that would normally protect women ‐‐ police, prosecutors, judges, officials ‐‐ do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system ʺfavors aggressors and assassinsʺ and ʺpunish[es] victims of gender violence.ʺ Cert. Adm. Rec. at 147. Yet, Hernandez‐Chacon testified that when the first gang member tried to rape her, she resisted ʺbecause [she had] every right to.ʺ Id. at 193. Three days later, when the same man and two other gang members attacked her, she again resisted, to the point where they beat her until she lost consciousness. She argues that the men targeted her for the second attack ‐‐ and beat her so brutally ‐‐ because she had resisted the advances of an MS gang member and they believed she needed to be punished for her act of defiance. Her now husband likewise stated in his affidavit that Hernandez‐ Chacon will be attacked if she returns to El Salvador because ʺ[s]he has managed to fight them off twice, but that just makes them angrier and if she shows her face again, I think they could kill her.ʺ Id. at 269.
At oral argument, the government forthrightly conceded that it was a ʺpermissibleʺ inference that Hernandez‐Chacon was persecuted for her feminist political ideology, though it argued that the record did not compel that result.
Here are some additional thoughts about the larger problem exposed by this case:
WHY “NIBBLING AROUND THE EDGES” BY ARTICLE IIIs WON’T SOLVE THE CONSTITUTIONAL & HUMAN RIGHTS DISASTERS IN OUR IMMIGRATION COURTS NOR WILL IT RELIEVE THE ARTICLE IIIs FROM RESPONSIBILITY
By Paul Wickham Schmidt
Exclusive for Courtside
Jan. 29, 2020
The Second Circuit’s decision in Hernández-Chacon v. Barr exposes deep fundamental constitutional flaws in our Immigration Court system. While the instructive language on how many women resisting gangs could and should be qualifying for asylum (and many more should be getting relief under the CAT) is refreshing, the remedy, a remand to a failed and constitutionally defective system, is woefully inadequate.
Indeed, just recently, a fellow Circuit, the Seventh, ripped the BIA for contemptuously disobeying a direct court order. Maybe the Board will pay attention to the Second Circuit’s directive in this case, maybe they won’t. Maybe they will think of a new reason to deny as all too often happens on Circuit Court remands these days.
I actually have no doubt that the Immigration Judge involved in this case, who recognized the dire situation of women in El Salvador, and grated CAT withholding, will “do the right thing” and grant asylum with the benefit of Judge Chin’s opinion. But, today’s BIA has a number of dedicated “asylum deniers” in its ranks; individuals who as Immigration Judges denied approaching 100% of the asylum claims coming before them, some of them notorious with the private bar for particular hostility to claims from women from the Northern Triangle.
That appeared to be their “selling point” for AG Billy Barr in elevating them to the BIA: Create the same reliable “Asylum Free Zone” at the BIA that has been created by these judges and others like them in other parts of the country. It’s a great way to discourage bona fide asylum claims, which. appears to be the key to the “Barr plan.”
One might ask what Billy Barr is doing running something purporting to be a “court system” in the first place. Outrageous on its face! The short answer: Article III complicity and dereliction of Constitutional duty! But, I’ll get to that later.
What if a panel of “Three Deniers” gets the case on remand? Will Ms Hernandez-Chacon finally get justice? Or, will she and her pro bono lawyer Heather Axford once again have to appeal to the Second Circuit just to force the BIA to finally “get the basics right?”
Individual case remands, even published ones, fail to address the serious underlying issues plaguing our Immigration Courts and threatening the very foundations of our justice system:1) lack of fundamental knowledge of asylum law on the part of the BIA and the Immigration Courts; 2) an unconstitutional system run, and sometimes staffed, by biased, unethical anti-asylum zealots who consistently send out false or misleading messages; and 3) the inherent unfairness in a system that denies adequate access to counsel and permits the use of coercive detention and outright statutory and constitutional abrogation to consistently harm asylum seekers and others seeking justice.
I. Glaring Lack Of Asylum Legal Competence & Expertise
The Second Circuit noted three major errors in the BIA’s analysis: 1) failing to recognize that the respondent was advancing a “political persecution” argument; 2) misuseof the concept of “victimization” as a pretext for denying a potentially valid asylum claim; and 3) failure to recognize and address the respondent’s “imputed political opinion.”
None of these mistakes is new. Advocates would tell you that the BIA and Immigration Judges make them all the time.
Nor is getting these things right “rocket science.” Really, all it would take is a body knowledgeable in and committed to the fair and generous interpretation of asylum law intended by the 1951 Convention from which our law stems and reinforced by the Supreme Court in INS v. Cardoza-Fonseca in 1987. The correct view has also been reflected in the Second Circuit’s own published jurisprudence, which the Board again ignored in this case.
For example, the Second Circuit instructed the BIA “that that the analysis of what constitutes political expression for these purposes ʺinvolves a ʹcomplex and contextual factual inquiryʹ into the nature of the asylum applicantʹs activities in relation to the political context in which the dispute took place.ʺ Castro v. Holder, 597 F.3d 93, 101 (2d Cir. 2010) (quoting Yueqing Zhang, 426 F.3d at 548).”
This is hardly a new concept. For example, Yueqing Zhang was published in 2005, a decade and a half ago, and reinforced by the Second Circuit on several occasions since then. Yet, both the BIA and Immigration Judges continue to ignore it when it suits their purposes. So, why would the Second Circuit believe that the Immigration Courts had suddenly “gotten religion” and would now pay attention to their admonitions on asylum law?
As pointed out by the Second Circuit, the “mere victim” rationale, often insidiously used by the BIA and some Immigration Judges as an “easy handle” to summarily deny asylum claims, is a disingenuous hoax. All successful asylum applicants are “victims” even if not all “victims” necessarily qualify for asylum. Refugees, entitled to asylum, are a very large subset of “victims.” In this and many other cases, the BIA totally “blew by” the well established, statutorily required “mixed motive” analysis that is “Asylum Law 101.”
Also, the BIA’s failure to recognize and consider the well-established doctrine of “imputed political opinion” is inexcusable in a supposedly “expert” tribunal.
The “Article III blowoff” documented in this case is virtually inevitable in a system where the “judges” at all levels, are subject to arbitrary, unethical, and unconstitutional “performance quotas” and receive “performance evaluations” influenced by biased political officials with an interest in the outcome of cases. Indeed, former Attorney Session essentially told “his” judges that it’s “all about production.” Fairness, Due Process, and scholarship that individuals are entitled to before a tribunal simply don’t enter into the equation.
The Immigration Judge in this case has an outstanding reputation and actually did a careful job in many respects. A competent appellate tribunal would have caught the judge’s mistake on political opinion and remanded for further consideration. The case never should have reached the Second Circuit (think efficiency and why the Immigraton Courts have built unmanageable backlogs).
Moreover, an error like this by a competent and careful judge indicates the need for further positive guidance to judges on recognizing valid asylum claims. Why hasn’t the BIA published precedents reinforcing the very points made by Judge Chin in his Hernández-Chacon opinion and showing how they apply to granting asylum in real life, recurring situations, particularly those involving women from the Northern Triangle?
Instead, and in direct contradiction of the law and controlling jurisprudence, Attorney General Sessions in Matter of A-B- gave an unethical, misogynistic, and intentionally factually distorted suggestion that most women’s claims arising from persecution at the hands of gangs and abusive partners in the Northern Triangle should be “denied” on any available ground, whether warranted or not. Some Immigration Judges have correctly viewed this as “mere dicta.” But, others have viewed it as a potentially “career enhancing tip” about how “the big boss” wanted asylum seekers from the Northern Triangle treated: like dirt, or worse.
Dehumanization has always been a “key part of the plan” for Sessions, his acolyte Stephen Miller, and others of like mind in this Administration. Why have the Article III courts enabled, and in some cases approved, this neo-fascist approach to the law and humanity? That’s a great question to which the answer is not obvious. What’s the purpose of life tenure in office if it doesn’t promote courage to stand up for the rights of vulnerable individuals against invidious intentional Government tyranny ands systemic abuses?
By ignoring the “pattern or practice” of failure by the BIA and the Immigration Courts to institutionalize the Second Circuit’s many years of prior commands for fair asylum adjudication, while ignoring the glaring, intentional barriers to fair judicial performance put in place by the political controllers of this system, the Second Circuit and the other Article IIIs simply advertise their own fecklessness and also, to some extent, intellectual dishonesty.
II. Institutional Bias Against Asylum Seekers
Both Attorney General Barr and his predecessor Jeff Sessions are biased “cheerleaders” for DHS enforcement; they are totally unqualified to act in a quasi-judicial capacity or to supervise quasi-judicial adjudicators. Their participation in and interference with fair and impartial decision making is a clear violation of Due Process and a mockery of judicial and legal ethics.
A private lawyer who so blatantly “thumbed his or her nose” at prohibitions on conflicts of interest undoubtedly would face discipline or disbarment. Yet, the Second Circuit and their fellow Circuits, as well as the Supremes, have failed to act on these obvious ethical improprieties by the DOJ and its leadership that have a direct negative impact on constitutional Due Process.
Under Trump, Attorneys General have issued number of anti-asylum “precedents” reversing prior law and practice. New Immigration Judges are selected by the Attorney General almost exclusively from the ranks of prosecutors and other Government attorneys. Those with private sector experience or experience representing migrants and asylum seekers are systematically excluded from the judiciary. How is this a fair system?
The Administration and DOJ spew forth an endless stream of anti-immigrant and anti-asylum, propaganda. They also use “performance work plans”and “numerical quotas” to drum into “judges” their responsibility to follow and implement “agency policies” rather than fairly and impartially consider the cases coming before them. This message certainly does not encourage fair and impartial adjudication. The “default message” clearly is “deny, deny, deny.”
One very fundamental problem resulting from this institutional bias against asylum seekers: The BIA’s (and now AG’s) “precedents” providing guidance to Immigration Judges fail to set forth rules and circumstances for granting asylum in meritorious cases. The need for such rules should be obvious from the Supreme Court’s 1987 decision in INS v. Cardoza-Fonseca (directing the BIA to implement a generous interpretation of “well-founded fear” standard for asylum) and the BIA’s initial response to Cardoza in Matter of Mogharrabi (directing that asylum could be granted even where the objective chance of persecution is “significantly less than . . . probable”). Most, if not all, Circuit Courts of Appeals followed suit with a series of decisions criticizing the BIA for an “overly restrictive reading” of asylum law, not true to Cardoza and their own precedent in Mogharrabi, in many unpublished cases.
But, quite intentionally in my view, the BIA and Attorney General have now strayed far from these judicial admonitions and abandoned the BIA’s own precedent in Mogharrabi. Instead, today’s administrative “precedents” read like a “how to course” in denying asylum claims. Indeed, from examining these one-sided precedents (no individual has prevailed in an “Attorney General precedent” under this Administration — DHS wins every time), one comes away with the pronounced view that asylum could almost never be granted by an Immigration Judge, no matter how great the harm or compelling the circumstances.
I once participated in an academic conference attended by Circuit Court of Appeals Judges from across the country. Most were astounded to learn how many asylum cases were actually granted by Immigration Judges. From their review of unfailingly negative BIA decisions (skewed, of course, by the Government’s inability to appeal from the BIA, another problem with the current system) they had the impression that asylum was denied nearly 100% of the time (which actually does happen in some Immigration Courts these days, as noted above).
The only way to describe this is “gross institutional corruption” starting at the top with the DOJ and the Attorney General. Even now, under these intentionally restrictive rules, more than 30% of asylum cases are granted at merits hearings before Immigration Judges, although with the lack of effective positive guidance from the BIA those rates are highly inconsistent among judges.
Within the last decade, the majority of cases were actually being granted as the system was slowly progressing toward toward realizing the “spirit of Cardoza and Mogharrabi” However, that progress intentionally was reversed by improper political pressure to deny more Central American cases (a message that actually began under the last Administration and has been “put on steroids” by the current Administration).
III. An Inherently Unfair System
Notwithstanding the need for careful record building and detailed fact-finding as described by the Second Circuit, individuals are not entitled to appointed counsel in Immigraton Court. Through use of intentionally coercive and inhumane detention and “gimmicks” like “Remain in Mexico” the Administration strives to deny fair access to pro bono counsel and to prevent individuals from preparing and documenting complex cases.
The Article IIIs recognize the complexity of asylum cases, yet fail to “connect the dots” with the intentional systemic impediments to fair preparation and presentation thrown up by the government. The “hostile environment” for aliens and their counsel intentionally created in Immigration Court by the DOJ also works to discourage individuals from pursuing claims and getting representation.
The whole system is essentially a judicially-enabled farce. Does the Second Circuit, or anybody else, seriously think that Ms. Hernandez-Chacon would have gotten this far without the time-consuming and outstanding assistance of her pro bono lawyer, Heather Axford, of Central American Legal Assistance in Brooklyn, NY? She’s one of the top asylum litigators in the nation who used to appear before me in Arlington at the beginning of her amazing career!
How many of those “detained in the middle of nowhere,” told to “Remain in Mexico,” or, worse yet, orbited to “failed states” by Border Agents under bogus “Safe Third Country Agreements” have access to someone like Heather Axford? (It doesn’t take much imagination after reading the truth about how women are treated in El Salvador to see the outright fraud committed by the Trump Administration in entering into bogus “Safe Third Country” agreements with El Salvador and other dangerous, failing states). About none! How can the courts allow a system to keep out grinding out systemic abuse to vulnerable human beings without insisting that the essentials for fair hearings be put in place and maintained?
IV.Conclusion
When obvious legal, analytical, and institutional problems remain unfixed more than a decade after they surfaced, the system is broken! The current Immigration Court system is patently unfair and unconstitutional. By ignoring the glaring systemic unfairness, Article III Courts become part of the problem and subject themselves to charges of fecklessness and dereliction of duty.
It’s long past time for theArticle IIIs to take decisive actions to end the national disgrace and humanitarian disaster unfolding in our Immigration Courts daily. History is watching your actions and will be your judge!
Statement of the Round Table of Former Immigration Judges Submitted to the House Judiciary Subcommittee on Immigration and Citizenship
Hearing on “Courts in Crisis: The State of Judicial Independence and Due Process in U.S. Immigration Courts”
January 29, 2020
This statement for the record is submitted by former Immigration Judges and former Appellate Immigration Judges of the Board of Immigration Appeals (BIA). Members of our group were appointed to the bench and served under different administrations of both parties over the past four decades. Drawing on our many years of collective experience, we are intimately familiar with the workings, history, and development of the immigration court from the 1980s up to present.
The purpose of the immigration courts is to act as a neutral check on executive overreach in the enforcement of our immigration laws. In their detached and learned interpretation of the laws and regulations, Immigration Judges exist to correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.
Unfortunately, no Attorney General has ever created an impartial immigration court system because the immigration courts have always been housed inside the U.S. Department of Justice, subject to the nation’s chief enforcement officer, the Attorney General. Due in large part to the efforts of their union, the National Association of Immigration Judges, (NAIJ), the Immigration Judge corps managed to maintain decision making independence even when faced with increased caseloads and political pressures.
We are extremely disturbed by this administration’s systemic and unprecedented efforts to undermine Immigration Judges’ independence and neutrality. Such efforts have proceeded seamlessly through three different Attorneys General. Even Matthew Whitaker, acting as a caretaker and with no prior immigration law background, managed in his brief time in charge to certify two cases to himself, one of which was a decision of the BIA which had denied asylum and created a difficult standard for those seeking asylum based on their family ties, in order to make such standard even more daunting.
The three Attorneys Generals have together abused their certification power to circumvent the intent of Congress by rewriting our nation’s immigration laws. In
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some of their decisions, the Attorneys General have eliminated precedent decision and then imposed requirements that necessitate much more attorney preparation, longer hearings, and more exacting decisions from the Immigration Judges themselves in order to grant relief where such relief is due. The disingenuous assertion for doing so was that the parties had stipulated to certain facts and findings without evidence, when in fact the parties had done so – as in all judicial settings – because the evidence in support of such facts and findings was overwhelming and there is no need to burden the court system by presenting them in each case. At the same time, the Department of Justice has greatly expedited the hearings of those who are often most vulnerable, while requiring a growing number of asylum-seekers to either wait in Mexico in a state of homelessness, with little access to counsel or ability to be able to gather evidence; or to alternatively be detained in horrific conditions in remote detention facilities, all with little to no access to counsel.1 The administration has increasingly denied observers access to Remain in Mexico hearings.2 In particular, a member of our group was asked to leave a Remain in Mexico hearing where she was observing a case on the spurious claim that her note taking was distracting.3
In addition to cutting off access to the agency’s more controversial classes of hearings, EOIR has also effectively ended the participation of Immigration Judges as speakers in legal conferences and at law schools, including as participants in moot court hearings.4 The judges’ own union, the NAIJ, has served as the sole voice of its members, publicly speaking out against policies that undermine its independence and impartiality, and in advocating for independent Article I court status. In response, the Department of Justice has sought to silence the NAIJ
1 On January 24, 2019, the Department of Homeland Security (DHS) announced the Migration Protection Protocols (MPP), a policy also known as “Remain in Mexico,” which requires individuals seeking asylum at our southern border to remain in Mexico while their U.S. removal proceedings are pending.
2 Adolfo Flores, Immigration “Tent Courts” Aren’t Allowing Full Access To The Public, Attorneys Say, (1/13/2020), https://www.buzzfeednews.com/article/adolfoflores/immigration-tent-courts-arent-allowing-full-public-access.
3 The Round Table of Former Immigration Judges, Letter to Director McHenry and Chief Immigration Judge Santoro, (Dec. 10, 2019), https://immigrationcourtside.com/wp-content/uploads/2019/12/McHenry- letter_letterhead-1.pdf.
4 The Knight First Amendment Institute, Knight Institute Calls on DOJ’s Executive Office for Immigration Review to Suspend Policy Silencing Immigration Judges, (Jan. 6, 2020), https://knightcolumbia.org/content/knight-institute- calls-on-dojs-executive-office-for-immigration-review-to-suspend-policy-silencing-immigration-judges.
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through a present effort to decertify on the same basis that was rejected previously this union that has been certified since 1979.5
The Attorneys General have also issued decisions stripping Immigration Judges of the judicial tools needed to properly execute their duties. Through precedent decisions by certification, then-Attorney General Jeff Sessions issued binding decisions stripping Immigration Judges of their long-standing ability to administratively close6 or terminate7 cases where appropriate or necessary, or even to continue hearings where due process requires.8
The above actions of Attorneys General, as well as the reshuffling of Immigration Judge dockets to assure that cases are heard based on the political priority of the day as opposed to due process concerns, has resulted in unprecedented, sky- rocketing backlogs.9 The backlog has increased exponentially despite the dramatic increase in Immigration Judge appointments, most of which have favored individuals with enforcement backgrounds. Some have wondered if this is an attempt to implode the Immigration Court system, but whether it is intentional or not, this could be the ultimate effect.
EOIR’s director is not a political appointee, yet he has acted as one by promulgating policies that undermine judicial independence. For example, he has created completion quotas that require Immigration Judges to choose between justice for those who appear before them and their own job security. The vast majority of other administrative judges – including Social Security Judges – are exempted from such quotas by statute, and the Immigration Judges were previously exempted by policy. Immigration Judges are told in their training that they are only DOJ attorneys and as employees of the Attorney General and the Department of Justice, they owe loyalty to the objectives of those they serve. Such quotas damage the public’s confidence in the immigration court system by creating the perception of bias. Even in the law enforcement context, quotas are seen as harmful. For example, most states outlaw such quotas for traffic tickets issued by
5 Eric Katz, The Justice Department says immigration law judges operate as managers, an argument the Federal Labor Relations Authority rejected in 2000, (Aug. 12, 2019), https://www.govexec.com/management/2019/08/ trump-administration-looks-decertify-vocal-federal-employee-union/159112/.
6 Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018)
7 Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) 8 Matter of L-A-B-R- et. Al., 27 I&N Dec. 405 (A.G. 2018)
9 According to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University the December 2019, backlog was 1,089,696. See, https://trac.syr.edu/phptools/immigration/court_backlog/
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police officers. Pressuring Immigration Judges to adhere to the views of the enforcement officer and agency that employ them contradicts the Supreme Court’s 1954 ruling to the contrary, in which it held that the BIA must decide cases according to its judges’ “own understanding and conscience,” and not those of the Attorney General.10
EOIR has taken additional actions to undermine the appearance of neutrality so necessary to a court system. The agency posted on its website a press release announcing a “return to the rule of law” based solely on an increase in the number of deportation orders issued by the courts.11 More recently, the agency issued a “Myths vs. Facts” sheet12 falsely claiming that noncitizens as a rule don’t appear for their court hearings (whereas statistics compiled by TRAC indicate an appearance rate over 90%;13 that asylum seekers’ claims lack merit, and that attorneys don’t really impact court outcomes. The members of this honorable committee are asked to try to imagine any other court issuing such a statement concerning those that appear before its judges, and to further imagine what the public response would be. Our Round Table was one of several groups that issued a statement strongly criticizing such action.14
Our group includes a significant number of former Immigration Judges who retired or otherwise left the bench sooner than intended due to the unconscionable policies of the present administration. Two amongst us took the highly unusual step of resigning after only two years on the bench. One of our members made a point of retiring after 28 years on the bench on the day before the oppressive completion quota system went into effect as a statement that he refused to work under such conditions.15
10 Accardi v. Shaughnessy, 347 U.S. 260 (1954).
11 https://www.justice.gov/opa/pr/return-rule-law-trump-administration-marked-increase-key-immigration-statistics
12 https://www.justice.gov/eoir/page/file/1161001/download 13 See, https://trac.syr.edu/immigration/reports/562/.
14 Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, (May 13, 2019), https:// www.aila.org/infonet/retired-ijs-and-former-members-of-the-bia-object; See also AILA Policy Brief: Facts About the State of Our Nation’s Immigration Courts, (May 14, 2019), https://www.aila.org/advo-media/aila-policy-briefs/aila- policy-brief-facts-about-the-state-of-our.
15 “Immigration Judges say they’re ;leaving jobs because of Trump policies,” The Hill, Feb. 13, 2019, https:// thehill.com/latino/429940-immigration-judges-say-theyre-leaving-jobs-because-of-trump-policies
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We acknowledge our former colleagues still on the bench who continue to afford due process and fairness in their decisions. Their increasing difficulty in doing so was illustrated by the highly-publicized case in which an Immigration Judge in Philadelphia, upon receiving a case remanded by the Attorney General, continued the hearing of a minor who did not appear for purposes of ensuring that the youth received proper notice of the hearing, as required by law. EOIR management immediately removed the case from the judge’s docket, along with more than 80 other similar cases. The judge was most improperly chastised by his supervisor. Instead of assigning the case to another judge in the Philadelphia court, EOIR management sent one of its own to Philadelphia for the sole purpose of issuing an in absentia removal order against the youth.16 What message did these actions send to the Immigration Judge corps (in particular, to those recently hired who may be removed without cause within two years of their appointments) about exercising independent judgment? We affirm that such action would have been unthinkable under any prior administration during the four decades in which we served.
Immigration Judges also depend on a fair review of their decision on administrative appeal to the BIA. We are sad to report that the Appellate Immigration Judges on the BIA have abdicated the independent understanding and conscience recognized 66 years ago by the Supreme Court. Last month, a judge sitting on the U.S. Court of Appeals for the Third Circuit stated in a concurring opinion of the court: “it is difficult for me to read this record and conclude that the Board was acting as anything other than an agency focused on ensuring Quinteros’ removal rather than as the neutral and fair tribunal it is expected to be. That criticism is harsh and I do not make it lightly.”17 And on January 23, 2020, a three Judge panel of the U.S. Court of Appeals for the Seventh Circuit suggested holding the BIA’s judges in contempt of court, “with all the consequences that possibility entails.”18 What provoked such reaction was the BIA’s decision to completely ignore a binding order of an Article III court because then-Attorney General Jeff Sessions in a footnote to a certified decision had expressed his disagreement with such decision. The Seventh Circuit stated that the Board’s action “beggar’s belief,” adding that it has “never before encountered defiance of a remand order, and we hope never to see it again.” But as long as the Attorney General holds the power to
16 National Association of Immigration Judges, Judges’ Union Grievance Seeking Redress for the Unwarranted Removal of Cases from IJ, (Aug. 8, 2018), https://www.aila.org/infonet/naij-grievance-redress-removal.
17 Quinteros v. Att’y Gen., No. 18-3750 (3d Cir. Dec. 17, 2019).
18 Baez-Sanchez v. Barr, No. 19-1642 (7th Cir. Jan. 23, 2020). 5
remove them and the Circuit Courts don’t, the BIA will err on the side of job security.
With the BIA acting as the Attorney General’s enforcer, Immigration Judges are increasingly concerned with whether U.S. Immigration Customs Enforcement (ICE) might appeal a grant of relief. One of the requirements specified in the immigration judges’ performance quotas requires that not more than 15 percent of the immigration judges’ decisions can be remanded or reversed on appeal by the BIA.
It is the role of Congress to write the immigration laws and that of the Attorney General to uphold them. This administration has sought to rewrite those laws in defiance of directives of the Supreme Court and the Courts of Appeal which demonstrates that it is time for Congress to remove the responsibility for creating a fair immigration court from the Attorney General. The administration has stymied the efforts of immigration judges to faithfully execute their sworn obligations to accord due process to everyone who appears before them and to decide every case on its own merits after a full and fair consideration of the evidence. Instead, EOIR has imposed unrealistic productivity mandates that place speed above all considerations of fairness.
For all of the above reasons, we hope that Congress will take steps towards removing the immigration courts and BIA from the Department of Justice and establishing an independent Article I Immigration Court. In the meantime, we hope that Congress will use the powers at its disposal to limit undue influence on the Immigration Judges; to protect the NAIJ union from decertification; and to call the BIA to account for its recent outrageous behavior.
We appreciate the opportunity to provide this statement for the record and look forward to engaging as Congress considers reforming the immigration court system.
Contact with questions or concerns: Jeffrey S. Chase, jeffchase99@gmail.com. Sincerely,
Hon. Steven Abrams, Immigration Judge, New York, Varick St., and Queens (N.Y.) Wackenhut Immigration Courts, 1997-2013
Hon. Terry A. Bain, Immigration Judge, New York, 1994-2019
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Hon. Sarah Burr, Assistant Chief Immigration Judge and Immigration Judge, New York, 1994-2012
Hon. Esmerelda Cabrera, Immigration Judge, New York, Newark, and Elizabeth, NJ, 1994-2005
Hon. Teofilo Chapa, Immigration Judge, Miami, 1995-2018
Hon. Jeffrey S. Chase, Immigration Judge, New York, 1995-2007
Hon. George T. Chew, Immigration Judge, New York, 1995-2017
Hon. Joan Churchill, Immigration Judge, Arlington, VA 1980-2005
Hon. Bruce J. Einhorn, Immigration Judge, Los Angeles, 1990-2007
Hon. Cecelia M. Espenoza, Appellate Immigration Judge, BIA, 2000-2003
Hon. Noel Ferris, Immigration Judge, New York, 1994-2013
Hon. James R. Fujimoto, Immigration Judge, Chicago, 1990-2019
Hon. Jennie L. Giambastiani, Immigration Judge, Chicago, 2002-2019
Hon. John F. Gossart, Jr., Immigration Judge, Baltimore, 1982-2013
Hon. Paul Grussendorf, Immigration Judge, Philadelphia and San Francisco, 1997-2004
Hon. Miriam Hayward, Immigration Judge, San Francisco, 1997-2018
Hon. Charles Honeyman, Immigration Judge, Philadelphia and New York, 1995-2020
Hon. Rebecca Jamil, Immigration Judge, San Francisco, 2016-2018
Hon. William P. Joyce, Immigration Judge, Boston, 1996-2002
Hon. Carol King, Immigration Judge, San Francisco, 1995-2017
Hon. Elizabeth A. Lamb, Immigration Judge, New York, 1995-2018
Hon. Donn L. Livingston, Immigration Judge, Denver and New York, 1995-2018 Hon. Margaret McManus, Immigration Judge, New York, 1991-2018
Hon. Charles Pazar, Immigration Judge, Memphis, 1998-2017
Hon. Laura Ramirez, Immigration Judge, San Francisco, 1997-2018
Hon. John W. Richardson, Immigration Judge, Phoenix, 1990-2018
Hon. Lory D. Rosenberg, Appellate Immigration Judge, Board of Immigration Appeals, 1995-2002
Hon. Susan G. Roy, Immigration Judge, Newark, NJ 2008-2010
Hon. Paul W. Schmidt, Chair and Appellate Immigration Judge, Board of Immigration Appeals, and Immigration Judge, Arlington, VA 1995-2016
Hon. Ilyce S. Shugall, Immigration Judge, San Francisco, 2017-2019
Hon. Denise Slavin, Immigration Judge, Miami, Krome, and Baltimore, 1995-2019
Hon. Andrea Hawkins Sloan, Immigration Judge, Portland, 2010-2017
Hon. Gustavo D. Villageliu, Appellate Immigration Judge, BIA, 1995-2003
Hon. Robert D. Vinikoor, Immigration Judge, Chicago, 1984-2017
Hon. Polly A. Webber, Immigration Judge, San Francisco, 1995-2016
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Hon. Robert D. Weisel, Assistant Chief Immigration Judge, Immigration Judge, New York 1989-2016
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog
Thanks to our “Lead Knight,” Hon. Jeffrey Chase, for all of his work on drafting, revising, and coordinating this huge, important project on short notice (all while continuing to save lives in Immigration Court as a “real” trial lawyer).
Yes, there were “knightesses” (female knights) in history. Joan of Arc is a well known one. Today, they are common (perhaps a majority) among the ranks of our Round Table and certainly among the fiercest and most courageous champions of Due Process as well as role models for all aspiring judges!
