Torture – Page 107 – immigrationcourtside.com

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

LAUREN MARKHAM IN THE NEW REPUBLIC: Why “Trumpism” Ultimately Will Fail – Those Ignorant of Human History & Unwilling To Learn From It Will Just Keep Repeating The Same Expensive Mistakes – “One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. . . . The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.”

https://newrepublic.com/article/146919/this-route-doesnt-exist-map

“How efforts to block refugees and asylum-seekers from Europe have only made the global migration crisis more complex and harrowing

By LAUREN MARKHAM

February 26, 2018

By 7 p.m., the sun had set and groups of young men had begun to gather inside a small, nameless restaurant on a narrow street in Tapachula, Mexico. Anywhere else in the city, a hub of transit and commerce about ten miles north of the Guatemalan border, there would be no mistaking that you were in Latin America: The open colonial plaza, with its splaying palms and marimba players, men with megaphones announcing Jesus, and women hawking woven trinkets and small bags of cut fruit suggested as much. But inside the restaurant, the atmosphere was markedly different. The patrons hailed not from Mexico or points due south but from other far-flung and unexpected corners of the globe—India, Pakistan, Eritrea, Cameroon, Sierra Leone, Congo. Men, and all of the diners were men, gathered around tables, eating not Mexican or Central American fare but steaming plates of beef curry, yellow lentils, and blistered rounds of chapati. The restaurant’s proprietor, a stern, stocky Bangladeshi man in his thirties named Sadek, circulated among the diners. He stopped at one table of South Asian men and spoke to them in Hindi about how much they owed him for the items he’d collected on their tab. The waitress, patiently taking orders and maneuvering among the crowds of men, was the only Spanish speaker in the room.

Outside, dozens of other such men, travelers from around the world, mingled on the avenue. They reclined against the walls of restaurants and smoked cigarettes on the street-side balconies of cheap hotels. They’d all recently crossed into the country from Guatemala, and most had, until recently, been held in Tapachula’s migrant detention center, Siglo XXI. Just released, they had congregated in this packed migrants’ quarter as they prepared to continue their journeys out of Mexico and into the United States. They had traveled a great distance already: a transatlantic journey by airplane or ship to Brazil; by car, bus, or on foot to Peru, Ecuador, and Colombia; through Panama, Costa Rica, and Nicaragua; on to Honduras, Guatemala, and into Mexico. Again and again, I heard their itinerary repeated in an almost metronomic cadence, each country a link in a daunting, dangerous chain. They’d crossed oceans and continents; slogged through jungles and city slums; braved detention centers and robberies; and they were now, after many months, or even longer, tantalizingly close to their final goal of the United States and refugee status.

Police in Tapachula, a Mexican city used as a waypoint for migrants known as *extra-continentales*, patrol past a Cameroonian traveler (in a striped shirt).

They are the extreme outliers of a global migration crisis of enormous scale. Today, more than 65 million people around the world have been forced from their homes—a higher number than ever recorded, as people flee war, political upheaval, extreme poverty, natural disasters, and the impacts of climate change. Since 2014, nearly 2 million migrants have crossed into Europe by sea, typically landing in Italy or Greece. They hail from dozens of countries, but most are from Syria, Afghanistan, Iraq, and Nigeria—countries struggling with war, political repression, climate change, and endemic poverty.

Their passage to supposed safety, which takes them across Libya and the Sinai, as well as the Mediterranean, has become increasingly perilous. According to the United Nations High Commissioner for Refugees, nearly 150,000 people crossed the Mediterranean in 2017. More than 3,000 are believed to have drowned. Stories of detention in Libya, as well as physical and sexual abuse, are commonplace among those who manage to make it to Europe. A recent CNN report depicted a Libyan slave auction, where people were being sold for as little as $400. Even the lucky ones who wash up on Europe’s shores may end up stuck for years in transit camps and detention centers in the south of the continent, in some cases only in the end to be deported. In 2013, in an effort to curb migration and ease the burden of migrants within its borders, the European Union began ramping up deportations. In 2016, nearly 500,000 people were deported from Europe.

Globally, more than 65 million people have currently been forced from their homes—a higher number than ever recorded.

While the global drivers of migration have not subsided—devastation in Syria and Afghanistan, political repression in parts of sub-Saharan Africa—200,000 fewer migrants attempted to cross into Europe in 2017 than the year before. In response to the migrant crisis, European countries have sent strong messages that newcomers are no longer welcome; they’ve built fences to stop refugees from crossing their borders and elected far-right politicians with staunchly anti-immigrant messages. Meanwhile, most asylum cases are stalled in overburdened court systems, with slim prospects for any near-term resolution, which leaves many migrants stuck in the wicked limbo of a squalid, under-resourced refugee camp or austere detention facility. Today, European authorities have stiffened their resistance not only to new arrivals, but to the hundreds of thousands of asylum-seekers who arrived years before and remain in an eerie liminal zone: forbidden to live or work freely in Europe and unwilling, or often unable, to go home.

Because of the high risks of crossing and the low odds of being permitted to stay, more and more would-be asylum-seekers are now forgoing Europe, choosing instead to chance the journey through the Americas that brings them to Sadek’s restaurant in Tapachula. Each year, thousands of migrants from the Middle East, Africa, and Asia make their way to South America and then move northward, bound for the United States—and their numbers have been increasing steadily. It’s impossible to know how many migrants from outside the Americas begin the journey and do not make it to the United States, or how many make it to the country and slip through undetected. But the number of “irregular migrants”—they’re called extra-continentales in Tapachula—apprehended on the U.S. side of the border with Mexico has tripled since 2010.

They remain a tiny fraction of the hundreds of thousands of Mexicans and Central Americans crossing into the United States. But it is a hastening trickle that may well become a flood. “These ‘extra-continental’ migrants will probably increase,” said Roeland De Wilde, chief of mission for the International Organization for Migrationin Costa Rica, “given the increased difficulties in entering Europe, relative ease of entry in some South American countries, and smugglers’ increased organization across continents.”

A migrant from Bangladesh, Sadek (in a red shirt) is part restaurateur, part migratory middleman. He can help a traveler with a good meal—or a good travel agent or immigration attorney.

One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. All Europe has done is redirect the flow of vulnerable humanity, fostering the development of a global superhighway to move people over this great distance. The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.

“Cette route,” a French-speaking man from Cameroon told me, one sweltering afternoon in Tapachula on the breezeless balcony of a hotel frequented by irregular migrants, “n’existe pas sur le map.” This route doesn’t exist on the map.”

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Read Lauren’s much longer complete article at the above link. It’s one of the most incisive treatments of the worldwide migration phenomenon that I have seen recently. I highly recommend it.

Thanks to dedicated “Courtsider” Roxanne Lea Fantl of Richmond, VA for sending this item my way!

Shortly after I arrived at the Arlington Immigration Court, one of my wonderful colleagues told me “Paul, desperate people do desperate things. Don’t take it personally, and don’t blame them. We just do our jobs, as best we can under the circumstances.” Good advice, to be sure!

We can diminish ourselves as a nation, but that won’t stop human migration!

PWS

03-02-18

AMERICA THE UGLY: WHY ARE WE ALLOWING OUR GOVERNMENT TO ABUSE THE HUMAN RIGHTS OF FAMILIES & CHILDREN? — “This policy is tantamount to state-sponsored traumatization.”

https://www.nytimes.com/2018/02/28/opinion/immigrant-children-deportation-parents.html

DORA GALACATOS, ALAN SHAPIRO and BRETT STARK in the NY Times:

“The Department of Homeland Security may soon formalize the abhorrent practice of detaining the children of asylum-seekers separately from their parents. Immigrant families apprehended at the southwest border already endure a deeply flawed system in which they can be detained indefinitely. In this immigration system, detainees too often lack adequate access to counsel. But to unnecessarily tear apart families who cross the border to start a better life is immoral.

Sadly, such separations are already happening. The Florence Project in Arizona documented 155 such cases by October and other immigrant advocacy organizations report that children are being taken away from their parents. If the secretary orders this practice to be made standard procedure, thousands of families could face unnecessary separation.

The Trump administration’s goal is to strong-arm families into accepting deportation to get their children back. Kirstjen Nielsen, the secretary of homeland security, admitted this when she told the Senate on Jan. 16 that separating families may “discourage parents” from seeking refuge in America.

But the increasing informal use of family separation has not proved to be a deterrent. Last year, the number of family apprehensions at the southwestern border skyrocketed from 1,118 families in April to 8,120 in December.

Parents will continue to flee violence to protect their children and themselves. It is reprehensible to punish them for that basic human impulse. It is also despicable that the government would use children as bargaining chips. This policy is tantamount to state-sponsored traumatization.

Those of us who have seen the sites where families are detained and work directly with children and families who have gone through the system know what’s at stake.

The children we work with call the Border Patrol processing stations for migrants stopped at the border “iceboxes” (hieleras) and “dog kennels” (perreras). “I was wet from crossing the river and it was so cold I thought I would die,” one child said.

Another told us: “The lights were kept on day and night. I became disoriented and didn’t know how long I had been there.” A third said: “I was separated from my older sister. She is the closest person in my life. I couldn’t stop crying until I saw her again a few days later.”

In our work we have heard countless stories about detention. But the shock of bearing witness to them is hard to put into words. In McAllen, Tex., you enter a nondescript warehouse, the color of the dry barren landscape that surrounds it. It could be storage for just about anything, but is in actuality a cavernous, cold space holding hundreds upon hundreds of mostly women and children.

Chain-link fencing divides the harshly illuminated space into pens, one for boys, a second for girls and a third for their mothers and infant siblings. The pens are unusually quiet except for the crinkling of silver Mylar blankets. This is where family separation begins, as does the nightmare for parents and children.

The parents whose sons and daughters have been taken from them are given two options: either agree to return home with their children — or endure having those children sent on to shelters run by the Health and Human Services Department while they themselves languish in detention centers scattered around the country.

This country’s medical and mental health organizations have rightly recognized the trauma of this practice. The American Academy of Pediatrics has condemned immigrant family separation, and family detention overall, as “harsh and counterproductive.” The American Medical Association has denounced family separation as causing “unnecessary distress, depression and anxiety.”

Studies overwhelmingly demonstrate the irreparable harm to children caused by separation from their parents. A parent or caregiver’s role is to mitigate stress. Family separation robs children of that buffer and can create toxic stress, which can damage brain development and lead to chronic conditions like depression, post-traumatic stress disorder and heart disease. For that reason, more than 200 child welfare, juvenile justice and child development organizations signed a letterdemanding that the Trump administration abandon this ill-conceived policy.

Family separation is also unjustifiable legally, as “family unity” is central to our immigration laws and our longstanding policy of reuniting citizens and permanent residents with their relatives.

More fundamentally, family separation is anathema to basic decency and human rights. For our government to essentially hold immigrant children as hostages in exchange for the “ransom” of their parents’ deportation is simply despicable.

It is every parent’s nightmare to have a child snatched away. To adopt this as standard procedure to facilitate deportations is inhumane and does nothing to make Americans safer. This country, and Secretary Nielsen, must reject family separation.

ANOTHER AMICUS OPPORTUNITY FOR RETIRED IMMIGRATION JUDGES AND BIA APPELLATE JUDGES – Join My Friend & Colleague Judge Eliza Klein, Pro Bono Counsel Sidley Austin, The Heartland Alliance, & Me In A 10th Circuit Case Involving Access To Counsel In Immigration Detention (There Isn’t Any, For All Practical Purposes)

Judge Klein,

I hope you’re well. Allow me to introduce you to a team of lawyers from the firm Sidley Austin who are working on an amicus brief on behalf of immigration judges in the 10^th Circuit case that I mentioned to you. As we discussed, the case involves an arriving asylum seeker who was detained in a remote facility with no LOP, and with no realistic access to counsel. And, to complicate matters, at the time of his hearing, there was not meaningful phone access to the jail. The goal of the brief will be to address, from a judge’s perspective, the challenges of adjudicating such cases where there’s no real option for counsel and also to hopefully address some of the ways in which IJs have had to work around the absence of counsel to develop an adequate record in such cases.

The team from Sidley will get going on drafting, but in the meantime, I think it would be very helpful if you could work with them to reach out to other IJs who you certainly know better than any of us. We’ve provided Sidley a list of former IJs who have been willing to sign amicus briefs in other contexts, so hopefully that list (and your inside info) will help with the outreach.

Keren Zwick (Pronouns: she/her/ella)

Associate Director of Litigation

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

208 S. LaSalle Street, Suite 1300, Chicago, IL 60604
T: 312.660.1364 | F: 312.660.1505 | E: kzwick@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

I recently had the honor and pleasure of working with the Sidley Austin litigators on an Amicus Brief in the 6th Circuit case Hamama v. Homan (Due Process for Chaldean Christians). It was great!

PWS

03-01-18

JUSTICE BREYER IS RIGHTFULLY CONCERNED ABOUT THE “DREDSCOTTIFICATION’” OF IMMIGRANTS AS SHOWN IN THE LEGALLY & MORALLY BANKRUPT VIEWS OF THE MAJORITY IN JENNINGS V. RODRIGUEZ!

https://slate.com/news-and-politics/2018/03/justice-alito-just-signaled-the-supreme-courts-conservatives-might-not-consider-immigrants-to-be-people.html

Mark Joseph Stern reports for Slate:

“Tuesday’s Supreme Court decision in Jennings v. Rodriguez was widely viewed as an anticlimax. The case involves a group of immigrants being held in custody without any hope of bail. They argue that their indefinite detention violates due process, but the majority declined to resolve the constitutional question, sending the case back down to the lower court. In a sense, the plaintiffs are back where they started.

Justice Stephen Breyer, however, saw something far more chilling in the majority’s opinion. Taking the rare and dramatic step of reading his dissent from the bench, Breyer cautioned that the court’s conservative majority may be willing to strip immigrants of personhood in a manner that harkens back to Dred Scott. The justice used his impassioned dissent to sound an alarm. We ignore him at our own peril.

Jennings involves three groups of noncitizen plaintiffs: asylum-seekers, immigrants who have committed crimes but finished serving their sentences, and immigrants who believe they’re entitled to enter the country for reasons unrelated to persecution. A high percentage of these types of immigrants ultimately win the right to enter the U.S. But federal law authorizes the government to detain them while it adjudicates their claims in case it secures the authority to deport them instead.

The detention of these immigrants—often in brutal facilities that impose inhuman punishments—has, in practice, dragged on for months, even years. There is no clear recourse for detained immigrants who remain locked up without a hearing. In 2001’s Zadvydas v. Davis, the court found that a similar scheme applied to “deportable aliens” would almost certainly violate the Fifth Amendment’s Due Process Clause. To avoid this constitutional problem, the court construed the law as limiting detention to six months.

But in Jennings, the court’s five-member conservative majority interpreted another federal law to permit indefinite detention of thousands of aliens, with no apparent concern for the constitutional problems that reading creates. Justice Samuel Alito, writing for the majority, revealed from the outset of his opinion that he dislikes Zadvydas, dismissing it as a “notably generous” holding that avoided the constitutional issue in order to secure due process for immigrants. Unlike the Zadvydas court, Alito has no interest in protecting the constitutional rights of noncitizens. Instead, he read the current statute as stingily as possible, concluding that it did, indeed, allow the government to detain all three groups of immigrants indefinitely.

Oddly, Alito then chose not to address whether this interpretation of the statute rendered it unconstitutional. Instead, he sent the case back down to the lower courts to re-examine the due process question. But in the process, the justice telegraphed where he stands on the issue by attempting to sabotage the plaintiffs on their way out the door. In the lower courts, this case proceeded as a class action, allowing the plaintiffs to fight for the rights of every other similarly situated immigrant. The government didn’t ask the Supreme Court to review whether it was proper for it to litigate the plaintiffs’ claims as a class. But Alito did it anyway, strongly suggesting that the lower court should dissolve the class and force every plaintiff to litigate his case by himself.

Alito’s antics infuriated Breyer, who dissented along with Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused, presumably because she worked on the case as solicitor general.) Using Zadvydas as a jumping-off point, he interpreted the statute to require a bail hearing for immigrants after six months’ confinement—provided they pose no risk of flight or danger to the community. “The Due Process Clause foresees eligibility for bail as part of ‘due process,’ ” Breyer explained. By its own terms, that clause applies to every “person” in the country. Thus, the Constitution only permits the government to detain these immigrants without bail if they are not considered “persons” within the United States.

That is essentially what the government argued, asserting that immigrants detained at the border have no rights. This theory justifiably fills Breyer with righteous disgust. “We cannot here engage in this legal fiction,” he wrote. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.” Breyer continued:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Unfortunately, Breyer is not quite right that “no one” could claim, at least since “the time of slavery,” that noncitizens held in the U.S. “are totally without constitutional protection.” Just last October, Judge Karen L. Henderson of the U.S. Court of Appeals for the District of Columbia Circuit argued exactly that. In a stunning dissent, Henderson wrote that a pregnant, undocumented minor held in custody was “not entitled to the due process protections of the Fifth Amendment” because “[she] has never entered the United States as a matter of law … ” (The Due Process Clause protects women’s rights to abortion access.) In fact, the minor had entered the country and lived here for several months. But because she entered illegally, Henderson asserted that she had no constitutional rights. That’s precisely the “legal fiction” that Breyer rejected. It’s shockingly similar to the theory used to justify slavery and Dred Scott.

Do the Supreme Court’s conservatives agree with Henderson that undocumented immigrants detained in the U.S. have no constitutional protections? Breyer seems to fear that they do. In a striking peroration, Breyer reminded his colleagues that “at heart,” the issues before them “are simple”:

We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.

We should all be concerned that Breyer found it necessary to explain these first principles to the court. So many rights flow from the Due Process Clause’s liberty component: not just the right to be free from arbitrary detention and degrading treatment, but also the right to bodily integrity and to equal dignity. Should the court rule that undocumented immigrants lack these basic liberties, what’s to stop the government from torturing them, executing them, or keeping them imprisoned forever?

If that sounds dramatic, consider Breyer’s somber warning about possible starvation, beatings, and lashings. The justice plainly recognizes that, with Jennings, the court may have already taken a step down this dark and dangerous path.”

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As an appellate judge, I remember being infuriated by the callous attitude of some of my “Ivory Tower” colleagues and some trial judges who tended to minimize and sometimes trivialize human pain and suffering to arrive at nonsensical legalistic definitions of what constituted “persecution” or “torture.”

They simply didn’t want to recognize truth, because it would have resulted in more people being granted relief. In frustration, I occasionally privately suggested to staff that perhaps we needed an “interactive session” at the Annual Immigration Judges Conference (back in the days when we used to have such things) where those jurists who were immune to others’ pain and suffering would be locked in a room and subjected to some of the same treatment themselves. I imagine they would have been less stoic if it were happening to them rather than to someone else.

I doubt that any of the five Justices who joined the tone-deaf majority in Jennings would last more than a few days, not to mention years, in the kind of intentionally cruel, substandard, and deplorable conditions in which individuals, the majority of whom have valid claims to remain here under U.S. and international law, are detained in the “New American Gulag.” So, why is there no obvious Constitutional Due Process problem with subjecting individuals to so-called “civil” immigration detention, without recourse, under conditions that no human being, judge or not, should be forced to endure?

No, “Tone-Deaf Five,” folks fighting for their lives in immigration detention, many of whom lack basic legal representation that others take for granted, don’t have time to bring so-called “Bivens actions” (which the Court has pretty much judicially eliminated anyway) for “so-called “Constitutional torts!” Come on man, get serious!

Privileged jurists like Alito and Thomas speak in undecipherable legal trivialities and “pretzel themselves up” to help out corporate entities and other members of the privileged classes, yet have no time for clear violations of the Constitutional rights of the most vulnerable among us.

A much wiser, more humble, and less arrogant “judge” than Justice Alito and friends once said “Most certainly I tell you, inasmuch as you did it to one of the least of these my brothers, you did it to me.” When will the arrogant ever learn, when will they ever learn? Maybe not until it happens to them! Harm to the most vulnerable among us is harm to all of us! We should all be concerned that Justice Alito and his fellow judicial “corporate elitists” have “dissed” the Due Process Clause of our Constitution which protects everyone in America, not just corporations, gun owners, and over-privileged, under-humanized jurists!

Based upon recent statistics, approximately one person per month will die in the “DHS New American Gulag” while this case is “on remand” to the lower courts. How would Alito, Roberts, Thomas, Kennedy, and Gorsuch feel if it were their loved ones who perished, rather than some faceless (to them) “alien” (who also happens to be a human being)? Dehumanizing the least among us, like the Dred Scott decision did, de-humanizes all of us! For that, there is no defense at the bar of history and humanity.

PWS

03-01-18

ANOTHER WIN FOR THE “GOOD GUYS” (A/K/A NDPA) — GW Law Immigration Clinic Scores U Visa Win!

“Please join me in congratulating Immigration Clinic client C-R, from Venezuela. His U nonimmigrant visa application, filed on April 30, 2014, was granted Wednesday. C-R will be eligible to adjust status to lawful permanent residence in three years. U nonimmigrant visas are available to aliens who within the USA have been victims of criminal activity, and who have been helpful to law enforcement in investigating and prosecuting that crime. C-R was a victim of domestic violence at the hands of his ex-wife. Reports are that there are at least 90,000 U visa applications pending at USCIS.

Jessica Leal, Jonathan Bialosky, Sarena Bhatia, Chen Liang, Mark Webb, and Paulina Vera have worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…”
**************************************************

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Congrats to all involved!

I’m proud to say that Paulina Vera and Jessica Leal are “distinguished alums” of the Arlington Immigration Court Internship Program as well as “charter members” of the New Due Process Army (“NDPA”)!

These guys keep proving my point: with time and access to good representation, probably the majority of those who flee from the so-called Northern Triangle are eligible for immigration relief of some type.

Consequently, a rational Attorney General, committed to Due Process, would work to insure that such individuals are released after initial screening and able to go to locations where pro bono counsel are readily available and where cases are scheduled in a manner that they can be completely prepared and presented efficiently. Individuals with counsel reliably appear in Immigration Court as scheduled. He would also encourage the issuance of more favorable precedents leading to more expedited grants of relief and facilitate Immigration Judges working with DHS to have cases taken off the Immigration Court docket and granted by DHS, either at the Asylum Office or elsewhere in USCIS on an expedited basis.

Instead, Sessions treats refugees and asylum seekers as if they were criminals and seeks to use the detention system to prevent individuals from obtaining counsel and achieving due process. His misuse of the Immigration Courts as part of a DHS enforcement regime to discourage individuals from asserting their statutory and Constitutional rights is nothing short of reprehensible!

PWS

02-28-18

LEGAL AID JUSTICE CENTER OF VIRGINIA HUGE WIN – USD Judge Brinkema Certifies Class & Orders Bond Hearings For Individuals In “Withholding Only Proceedings” — Rogelio Amilcar Cabrera Diaz v. Hott — Get Links To All The Essential Court Docs Here!

https://www.justice4all.org/2018/02/26/case-establishes-right-to-bond-hearings/

Case Establishes Right to Bond Hearings

Posted February 26, 2018 by Tim Wallace

FOR IMMEDIATE RELEASE

Legal Aid Justice Center has won an important first-in-the-nation class action case in federal court in Alexandria, establishing the right to bond hearings for a class of detained immigrants whom the government is holding in long-term no-bond detention.

When immigrants are deported to countries where human rights violations are rampant, they often find themselves subject to persecution, torture, or even death threats. And since the U.S. government almost never gives a visa to someone who has already been deported, these individuals may find themselves with no option other than to try to return to the United States and cross the border illegally to seek a form of legal protection from persecution known as “withholding of removal.”

Previously, ICE and the immigration courts refused to grant bond to these individuals, holding them in prison-like conditions in immigration detention centers for months if not years while they fought out their cases. Legal Aid Justice Center filed a lawsuit last year on behalf of five immigrants held in this prolonged no-bond detention, and won release for two of them, but the government refused to apply the decision more broadly to other similarly situated immigrants held in detention.

We then filed a first-in-the-nation class action, seeking access to bond hearings for all immigrants detained in Virginia who fall into this category. On February 26, 2018, federal district judge Leonie M. Brinkema granted our motions in full, giving our clients and the class members all of the relief we asked for. We understand that there are about 50 immigrants currently detained at the Farmville detention center who meet this description, with more being arrested every week. Now, they will have the chance to pay a bond and leave detention, reunite with their families, and resume normal lives while they fight their cases for protection.

Special thanks to our pro bono co-counsel at Mayer Brown LLP, Murray Osorio LLP, Law Office of James Reyes, and Blessinger Legal PLLC – we couldn’t possibly do it without you!

The judge’s opinion can be found here: Memorandum Opinion (PDF)

The judge’s order can be found here: Order (PDF)

The opinion applies to all immigrants who are in pending withholding-only proceedings, and “as of December 7, 2017 or at any time thereafter are detained within the Commonwealth of Virginia under the authority of [ICE].” The government has been ordered to notify all class members by March 13, 2018, and to provide them with a bond hearing (or a Joseph hearing, if appropriate) by March 28, 2018.

We will be monitoring compliance with this opinion, and want to hear from Virginia attorneys who represent a class member. If you represent a class member, or if you have questions as to whether your client might be a class member, please e-mail LAJC attorney Rachel McFarland at rmcfarland@justice4all.org to let us know.

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“Super Congrats” to Simon Y. Sandoval-Moshenberg—Director, Immigrant Advocacy Program & his team of Firms and pro bono attorneys for making this happy.

I am particularly delighted that one of my “star” former Georgetown Law RLP students, Rachel McFarland, has been involved in this case. Rachel is a “charter member” of the “New Due Process Army!”

PWS

02-28-18

THE HILL: NOLAN ON EUROPE’S CONTINUING MIGRATION ISSUES!

http://thehill.com/opinion/immigration/375610-the-migrant-crisis-is-still-a-growing-burden-for-europe

Nolan writes:

“Making the situation worse, pursuant to the EU’s Dublin II regulation, refugees are supposed to apply for asylum in the first EU country they reach, and EU nations are resisting any changes to this regulation that would cause them to receive more migrants.

This has created an impossible burden for Greece and Italy, which have become the main gateways for 1.5 million refugees arriving on Europe’s shores over the last three years.

The EU Commission sought to redistribute 160,000 asylum seekersthroughout the EU from Greece and Italy, but lack of cooperation from other EU nations made it impossible to achieve that goal. When the program ended, only 31,000 refugees had been resettled.

But fewer migrants are coming to Europe. Only 186,768 migrants came in 2017. The following chart provides an overview of arrivals that year.

The numbers have not gone down because fewer people need refuge.

European governments entered into partnership agreements with North African countries in 2017. They offered financial support to them in exchange for stepped-up border patrols and crackdowns on migrant smuggling in their territories.

While these agreements have succeeded in reducing the numbers, it has come at a human cost. In Libya, the launch point for most of the migrant journeys to Europe, migrants intercepted while fleeing from Libya are sent to detention centers. Government and NGO reports have documented widespread physical and sexual violence, more conditions and killings at these centers.

Crime.

In 2016, Germany accepted the largest population of asylum seekers in Europe, but it has not worked out well for Germany. According to a study conducted by the Zurich University of Applied Sciences, the German state of Lower Saxony has experienced a 10.4 percent increase in violent crime.

German criminologists claim that the best way to prevent violent crime among migrants is to provide them with better integration opportunities. It also could help if Germany allowed them to be reunited with their families. Germany recently limited family reunifications.

In view of Europe’s low natural population growth rate, refugee family reunification could be a great benefit by adding to the birth rate in the EU. In the first half of the 1960s, the population of the EU increased by only 0.8 percent a year, and the birth rate is even lower now.

The European economy, meanwhile, is growing, which is producing labor shortages. Europe needs population inflows from outside the EU to increase its workforce.

The EU needs to ensure that the Schengen Agreement does not prevent individual nations from securing their borders, and it should consider making a greater effort to integrate its migrant population.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”

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I encourage you to go over to The Hill at the above link to read Nolan’s complete article.

It’s difficult to impossible to solve migration problems solely by working on them at the “receiving” end. I suspect that there will continue to be additional arrivals and more deaths unless and until the problems causing the refugee migration are addressed at the “sending” end.
Seems like the African nations acting as “middlemen” are the only “winners” here. The get paid by the EU for shutting down some routes for refugee migration. In the meantime, I suspect that they get paid by the smugglers for leaving some routes “open” or “looking the other way.”
Nolan’s point that Europe’s economic future might well depend on their better integrating migrants is well taken. Generally, the US has done a superior job of integrating migrants into our society. That’s one reason why our economy generally has done better than those of most EU nations.

PWS

02-27-18

SPLINTERED SUPREMES PROVISIONALLY OK “NEW AMERICAN GULAG” — Trump/Sessions Successfully Fight To Preserve Obama Legacy Of Never-Ending “Civil” Immigration Detention — Case Remanded To Lower Court, But Alito & Fellow GOP Justices Show Scant Concern For Human (Non-Economic) Rights & Freedom Under Constitution!

Jennings v. Rodriguez, O2-27-18

MAJORITY: Chief Justice Roberts, Justices Kennedy, Thomas, Alito, Gorsuch

CONCURRING OPINION: Justice Thomas, joined by Justice Gorsuch

DISSENTING OPINION: Justice Breyer, joined by Justices Ginsburg, Sotomayor

NOT PARTICIPATING: Justice Kagan

HERE’S A COPY OF THE COURT’S FULL DECISION:

15-1204_f29g

ANALYSIS BY ERIC LEVITZ @ NEW YORK MAGAZINE:

“For much of his presidency, Donald Trump has appeared more committed to nullifying his predecessor’s legacy than to any affirmative political principle. The president campaigned on a promise to repeal Obamacare and expand access to affordable health insurance — but when these goals came into conflict, he opted for the former. Trump argued vociferously that rogue regimes must be blocked from acquiring nuclear weapons — then “decertified” an Obama-era nuclear agreement that did just that. He claimed to believe in regulatory policies that protect “clean air and clean water,” then rolled back Obama-era rules aimed at that objective. Trump praised Janet Yellen’s economic management — but still took the precedent-defying step of refusing to grant the Obama-appointed Federal Reserve chair a second term.

Nevertheless, for all his policy nihilism, the president can still occasionally put substance over spite, and admit that on this or that specific issue, Barack Obama actually had a point. Thus, on Tuesday the Trump administration celebrated the preservation of one piece of Obama’s legacy.

In 2014, a federal district court ruled that immigrants detained while awaiting deportation proceedings were entitled to periodic bond hearings. The lead plaintiff in the case was a legal permanent resident of the United States, Alejandro Rodriguez, who was arrested as a teenager for joyriding and misdemeanor drug possession – and then jailed for three years, without ever receiving a bond hearing, as his lawyers (successfully) contested his deportation. The federal judge ruled that Rodriguez had a legal right to request to await trial outside of a detention facility. The Obama administration disagreed, arguing that the federal government has the authority to decide whether any individual immigrant should be afforded that right – or whether he or she is simply too dangerous for such due process – even if the person in question is a legal permanent resident or asylum-seeker.

Upon his election, Trump set aside his differences with Obama, and continued his predecessor’s appeal. Even when the Ninth Circuit upheld the lower court’s ruling, Jeff Sessions & Co. persisted in their defense of the Obama Justice Department’s position.

And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. As the New York Times explains:

The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.

Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
This ruling will send the case back to the Ninth Circuit, which will have the opportunity to assess whether the Constitution requires bond hearings for detained immigrants.

Three of the court’s liberals opposed the decision, while Elena Kagan recused herself (due to relevant work she had performed as Obama’s solicitor general). In an impassioned dissent, Justice Stephen Breyer insisted that the court should have reached a determination on the underlying Constitutional question – and ruled that all human beings in the United States are entitled to our founding document’s basic protections.

“[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” the Justice asked. “If not, then, whatever the [legal] fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”

“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote.

But thanks to the bipartisan efforts of the patriots in our Justice Department, the Trump administration will remain free, for the moment, to indefinitely imprison any legal immigrants and asylum-seekers it wishes to deport.

And Trump wishes to deport quite a few — although he’ll need to get much more aggressive on that front, if he wishes to preserve the pace of deportations set by his predecessor.

But, as Tuesday’s ruling demonstrated, with enough will and bipartisan cooperation, there’s little the American government cannot do.”

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HERE’S WHAT JUSTICE ALITO, JUSTICE THOMAS & THEIR BUDDIES REALLY ARE SAYING BEYOND THE LEGAL GOBBLEDYGOOK:

The plaintiffs are neither corporations nor guns. They are mere human beings. Therefore, they are entitled to no Constitutional protections that we care to enforce.

FROM JUSTICE BREYER’S DISSENT:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Cir cuit imposed.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbi trary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.
Because the majority does not do so, with respect, I dissent.

ONE POINT THAT ALL EIGHT JUSTICES AGREED ON:

The 9th Circuit was without authority to rewrite the statute to require bond hearings at 6 month intervals with the DHS bearing the burden of proof on continuing detention.

PWS

02-27-18

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.”

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made. Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

CALLING ALL FORMER IMMIGRATION JUDGES & BIA APPELLATE JUDGES: DUE PROCESS FOR CHILDREN IS ON THE LINE: Join In An Amicus Brief Supporting A Right To Counsel For Children In Immigration Court — Motion For Rehearing En Banc in C.J.L.G. v. Sessions! —Judges Gossart, Klein, Rosenberg, & I Are Already On Board! — Please Join Us!

Hi Judges Klein, Schmidt, Rosenberg, and Gossart:

Hope all of you are well. Thanks so much for your help with an amicus brief in support of rehearing en banc in CJLG v. Sessions, our children’s right to appointed counsel case. I’m copying in Buzz Frahn and his team from Simpson Thacher, who have agreed to draft the amicus brief on your behalves. We’ve given Buzz the previous briefs submitted in JEFM, and he and his team are getting started.

I think all of you can take it from here. It would be great if we could get your help in reaching out to other former IJs or BIA members who may be interested in participating as amici in our case.

Please let me know if you have any questions, or if I can do anything else to help. We’ll be in touch with the Simpson Thacher folks regarding some issues that might be worth highlighting in the amicus, and I’m sure they’d welcome feedback from all of you as well. Thanks again and have a great weekend!

Stephen

Stephen B. Kang
Pronouns: he/him/his
Detention Attorney
ACLU Immigrants’ Rights Project
39 Drumm Street, San Francisco, CA 94111
415.343.0783 | skang@aclu.org
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In C.J.L.G. v. Sessions, a 9th Circuit 3-Judge Panel found that: 1) the child respondent was denied due process at his Immigration Court hearing; 2) he suffered past persecution; 3) but there was no “prejudice” because he couldn’t establish “nexus.” Therefore, the panel rejected his claim that he had a right to appointed counsel.

The “no prejudice” finding is basically ludicrous! “Nexus” is such a complex and convoluted legal concept that judges at all levels get it wrong with regularity. How do we know that this child couldn’t show “nexus” when he and his mother didn’t have any idea of the legal and evidentiary standards they were required to meet?

On Friday, I attended a FBA Immigration/Asylum program at NYU Law. It was clear from the outstanding panel on Northern Triangle asylum that claims very similar, if not identical, to CJLG’s are being granted in many Immigration Courts.

But, it requires many hours of client interviews, extensive trial preparation, and the knowledge and ability to present claims often under alternative legal theories. No unrepresented child has a fair chance to make such a winning presentation on asylum or Convention Against Torture Withholding in Immigration Court, even though there are “life or death” stakes.

Here’s a link to my previous blog on C.J.L.G.:

https://wp.me/p8eeJm-22V

We would love to have your support in speaking out against this injustice and systemic denial of due process to our most vulnerable.

Please contact Judges Gossart, Klein, Rosenberg, or me if you wish to join our effort.

Best wishes and many thanks for considering this request.

PWS

02-25-18

ARLINGTON IMMIGRATION COURT: ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!

Friends,

Please join me in congratulating Immigration Clinic student-attorney Julia Navarro, and her client, F-R, from El Salvador. This afternoon, Immigration Judge Emmett D. Soper granted F-R’s asylum application. The ICE trial attorney waived appeal so the grant is final. Granted asylum along with F-R were her twelve and nine year-young sons, who live with her, and her husband, who remains in El Salvador.

F-R testified that the Mara 18 gang tried to recruit her then ten-year young son, but that he refused. As a result, he was beaten, resulting in visible injuries. However, he refused to tell F-R who beat him, and why. Finally, after repeated beatings, he told F-R. She confronted the gang members and asked them to leave her son alone. In response, they burned her with lit cigarettes on her chest, stomach, and arms. In addition, they demanded that she pay them $5,000. And they continued to beat her son. F-R went to the police twice, but nothing was done. Finally, after further beatings of her son and renewed demands for the $5,000, F-R and her husband decided that she and her two sons should come to the USA. After she left El Salvador, the gang members poisoned two of her dogs, whom, she testified, she considered part of her family. At the conclusion of her direct examination, Julia asked F-R if she would confront the gang members again, and she said yes, because “my children are my life, and I would give my life for theirs.”

Congratulations also to Sarah DeLong, Dalia Varela, Jengeih Tamba, and Jonathan Bialosky, who previously worked on this case.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congrats to all involved!

Once more proving my point that with great representation, time to prepare, and a fair Immigration Court, many, perhaps the majority, of the so-called “Northern Triangle Gang Cases” are highly grantable!

This definitely calls into question the Administration’s use of unnecessary detention, unwarranted criminal prosecutions, expedited removal, denial of access to counsel, detention courts, and “removal quotas” to “discourage” valid claims for protection. The Administration’s policies are an overt attack on Due Process and the Rule of Law! Harm to the most vulnerable among us is harm to all of us!

Three cheers for the “New Due Process Army!”

PWS

02-23-18

HELP TEMPLE LAW STUDENTS & THE WASHINGTON OFFICE ON LATIN AMERICA (“WOLA”) DEVELOP BETTER COUNTRY INFORMATION ON THE NORTHERN TRIANGLE TO SUPPORT ASYLUM APPLICATIONS! — Take This Very Short Survey!

Dear Asylum Lawyer,

We are students seeking your feedback on a project we are working on with the Washington Office on Latin America (WOLA) to support asylum claims from the Northern Triangle. We aim to provide asylum lawyers with country conditions information tailored to specific issues that arise commonly in cases from the Northern Triangle but lack sufficient easily accessible factual support.This is where you come in. We need your advice to determine which issues and countries we should prioritize in our efforts. To that end, we’d be grateful if you could complete this survey, which should take approximately 5 minutes of your time: https://www.surveymonkey.com/r/TLSWOLA. We’d appreciate your feedback at your earliest convenience, and ideally by February 25.

Please contact us at templelaw.asylum.project@gmail.com with any questions about this survey. Thank you very much for your valuable time and input into this project. We appreciate your assistance!

Kindest regards,

Shannon McGuire and Jasper Katz

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Many thanks to Shannon, Jasper, and their colleagues for undertaking this really important and timely project. It’s even more necessary because of the recent announcement that the State Department will “tank” on various aspects of women’s rights in newly propagandized so-called Country Reports.

The good news is that the field should now be “wide open” for more objective and unbiased information to replace Country Reports as the primary source of human rights and country background information in asylum cases.
But, it’s going to take some great research and persuasive arguments to get judges “off” their traditional (probably over) reliance on the Country Reports. Once discredited, however, the Country Reports are unlikely to ever regain their “privileged position” in the hierarchy of country information. Actually, a pretty dumb move on the part of the Trumpsters. But, perhaps something that will benefit the system in the long run by leading to use of better and more reliable sources of information.

The survey takes no more than five (5) minutes to complete.

PWS

02-23-18

NO LONGER THE GOLD STANDARD: ONCE RESPECTED USDOS “COUNTRY REPORTS ON HUMAN RIGHTS” WILL NOW BE RIGHT-WING PROPAGANDA SHEETS — WOMEN’S REPRODUCTIVE RIGHTS, RACIAL, SEXUAL DISCRIMINATION NO LONGER MAJOR CONCERNS — Will Advocates Be Prepared With Credible Alternatives & To Prove Administration’s Anti-Human-Rights Bias In Court?

https://www.huffingtonpost.com/entry/state-department-womens-reproductive-rights_us_5a8eeb5ce4b0746ba2acef1e

Laura Bassett reports for HuffPost

“NEW YORK― President Donald Trump’s State Department has been ordered to strip language about women’s reproductive rights from its annual global human rights report, Politico reported on Thursday.

The report, compiled each year with information from U.S. embassies around the world, typically details the lack of contraception and abortion access in various countries and sheds light on racial and sexual discrimination.

This year, a senior aide to Secretary of State Rex Tillerson has reportedly directed the department to remove much of that information from the document. The new report will focus instead on forced sterilization and abortions, and the “Reproductive Rights” subsection in the report will be renamed “Coercion in Population Control.”

The section on racial and sexual discrimination will be pared down, according to the Politico story.

The move follows a string of attempts by the Trump administration to de-prioritize women’s rights and roll back women’s access to contraception and abortion around the world.

“This development is a transparent attempt by the Trump administration to not only deprioritize reproductive rights, but effectively erase them from the broader conversation on human rights,” said Tarah Demant, director of gender, sexuality, and identity at Amnesty International USA.

State Department spokeswoman Heather Nauert said the department is “better focusing some sections of the report for clarity,” and sharpening it to spotlight “the most egregious issues.”

The administration’s proposed budget for the 2019 fiscal year, released earlier this month, would cut nearly $2.5 billion from the Global Health Programs Account, slashing global family planning funding by half.

Trump also reinstated and massively expanded the Global Gag Rule, restricting $8.8 billion in U.S. foreign aid funding for international health programs that provide or even mention abortion services. And he defunded the United Nations Population Fund (UNFPA), a global maternal health organization that provides contraception and pregnancy care to low-income women in 150 countries.

Girls aren’t able to get contraception, and they’re starting to come back pregnant, suicidal, bereftLisa Shannon, a global women’s rights advocate who works with reproductive health clinics in East Africa.

Women’s health workers around the world are already seeing the effects of Trump’s policies on women and girls, who are seeking dangerous and sometimes deadly back-alley abortions as family planning clinics are forced to shut down. Unsafe abortion is a leading cause of maternal mortality globally.

“Girls aren’t able to get contraception, and they’re starting to come back pregnant, suicidal, bereft,” said Lisa Shannon, a global women’s rights advocate who works with reproductive health clinics in East Africa. “They’re desperate, and they’ll do whatever it takes.”

Stripping language about reproductive rights from the U.S. government’s annual report is more than symbolic. Because the U.S. is the largest donor to women’s health groups in the world, effectively holding the purse strings for many non-profits and international organizations, any move the administration makes on the issue can have a chilling effect on contraception and abortion access in developing countries.

Brian Dixon, a spokesman for Population Connection, said the State Department is using the report “to provide cover to violations of women’s fundamental human rights rather than to provide a tool for accountability.”

“Denial of care isn’t ― as Trump and [Vice President Mike] Pence would have it ― an act of faith; it’s an act of violence,” he told HuffPost. “And the refusal to acknowledge that in a report created to hold autocrats and oppressors accountable is just disgraceful.”

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Advocates for women asylum seekers are going to have to fight the Trumpsters every inch of the way! In the end, abandoning an honest, largely objective approach to human rights will be costly to the US, as we continue to sink toward “Third World” status. The full ugliness of “Trumpism” and a White Nationalist, largely misogynistic agenda are coming into focus. And, as I have pointed out in other areas, once the Country Reports lose credibility, it probably never will be regained.

PWS

02-23-18

BIA PROVIDES FEEBLE GUIDANCE ON BORDER STATEMENTS — MATTER OF J-C-H-F-, 27 I&N DEC. 211(BIA 2018)! PLUS SPECIAL BONUS: MY “CRITICAL ANALYSIS!”

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Matter of J-C-H-F-, 27 I&N Dec. 211 (B IA 2018)

BIA HEADNOTE:

“When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.”

PANEL: BIA Appellate Immigration Judges MALPHRUS, CREPPY, and LIEBOWITZ

OPINION BY: JUDGE GARRY D. MALPHRUS

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MY ANALYSIS

Predictably, the respondent loses. Even though faulty analysis leading to unwarranted denial of asylum cases by the BIA and Immigration Judges is a recurring problem (see, e.g., Salgado-Sosa v. Sessions, recent 4th Circuit, Blogged here https://wp.me/p8eeJm-2aS), when was the last time the BIA explained how U.S. Immigration Judges should analyze and grant asylum? No, the BIA’s recent asylum jurisprudence is basically a one-sided “blueprint for denials that will pass appellate muster.” In reality, Due Process is supposed to be about protecting individuals (whether documented or undocumented) from Government overreach, not how to maximize DHS removals. But, you’d be hard pressed to get that from reading the BIA precedents.
What this decision really tells Immigration Judges: “Presume that sworn statements taken at the border are reliable. Feel free to use any inconsistencies against the asylum applicant. Go ahead and reject all efforts to explain. Deny the application based on credibility Don’t worry, we’ve ‘got your back’ on appeal.”
Even more seriously, although the BIA is supposed to consider “all relevant factors,” the panel totally ignored strong, impartial, widely disseminated evidence that statements taken at the border on Form I-867A are highly unreliable. Not only that, but such evidence is in the public realm and in fact was actually presented at EOIR training conferences at which Board Judges and staff were present!
Let’s reprIse a recent article by Hon. Jeffrey Chase, who was both an Immigration Judge and a BIA Attorney Adviser:”

In August 2016 I [Judge Chase] organized and moderated the mandatory international religious freedom training panel at the immigration judges’ legal training conference in Washington, D.C. One of the panelists from the U.S. Commission on International Religious Freedom (“USCIRF”) informed me of a just-published report she had co-authored. The report, titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, is the follow-up to a 2005 study by USCIRF of the treatment of arriving asylum seekers in their interactions with the various components of DHS and the Department of Justice involved in the expedited removal process. What jumped out at me from the report was the first key recommendation to EOIR: “Retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

The new report referenced the Commission’s 2005 findings, which it described as “alarming.” The earlier study found that “although they resemble verbatim transcripts, the I-867 sworn statements” taken from arrivees by agents of DHS’s Customs and Border Patrol (“CBP”) component “were neither verbatim nor reliable, often indicating that information was conveyed when in fact it was not and sometimes including answers to questions that were never asked. Yet immigration judges often used these unreliable documents against asylum seekers when adjudicating their cases.”

The 2016 report found similar problems with the airport statements taken a decade later. The study found the use of identical answers by CBP agents in filling out the form I-867 “transcript,” including clearly erroneous answers (i.e. a male applicant purportedly being asked, and answering, whether he was pregnant, and a four year old child purportedly stating that he came to the U.S. to work). For the record, USCIRF is a bipartisan organ of the federal government. So this is a government-issued report making these findings.

The U.S. Court of Appeals for the Second Circuit has long recognized the problems inherent in the reliability of airport statements. In Ramseachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004), the Second Circuit held that “a record of the interview that merely summarizes or paraphrases the alien’s statements is inherently less reliable than a verbatim account or transcript.” The court determined that the airport statement in that case bore “hallmarks of reliability, as it is typewritten, signed by Ramseachire, and initialed on each page. The record also indicates that he was given the opportunity to make corrections to the transcription.”

But was that truly the case? The USCIRF study (the first of which was published a year after the Ramseachire decision) shows that the Second Circuit’s reliance may have been misplaced. The USCIRF researchers found instances in which the statement was not read back; when asked, a CBP agent stated “that he only reads back the contents if the interviewee requests it because it takes too long, and that the interviewee initialing each page only indicates that s/he received a copy of that page.”

As noted in the USCIRF study, the problems with airport statements go beyond merely summarizing or paraphrasing, to include actual misstatements and omissions. But the I-867 statements as prepared by the CBP agents give the appearance of being verbatim transcripts, and further claim to contain multiple safeguards to guarantee their accuracy which, pursuant to the findings of the USCIRF studies, may not have actually been employed. And based upon the appearance of those safeguards, immigration judges have relied on the contents of these statements to reach adverse credibility findings that result in the denial of asylum. And as in Ramseachire, many of those credibility findings are being affirmed on appeal.

This is not to say that all airport statements are unreliable. But the point is that, as in Ramseachire, courts see something that looks like a verbatim transcript, see additional signs that safeguards were employed to ensure accuracy, and as a result, afford the document more evidentiary weight than it might actually deserve. Under such circumstances, an immigration judge might reasonably rely on an airport statement purporting that the respondent had stated he came to the U.S. to work when in fact, he or she said no such thing. And the judge might discredit the respondent’s denial of such statement when the words are recorded in a seemingly verbatim transcript bearing the respondent’s signature and initials which says it was read back to him and found accurate.

Attorneys and immigration judges should therefore be aware of the report and its findings. The link to the report is: https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf

You can find Jeffrey’s commentary with my additional comments on “Courtside” here: http://immigrationcourtside.com/2017/09/22/use-with-extreme-caution-hon-jeffrey-chase-on-the-use-of-so-called-airport-statements-in-removal-proceedings-they-often-prove-to-be-highly-unreliable/
So we have clearly documented “credibility and reliability problems” with Forms I-867A, uncovered by the U.S. Commission on International Religious Freedom (“USCIRF”), a highly respected non-partisan body of experts. These problems have been festering for years, and remained just as bad in 2016 as they were more than a decade earlier when the USCIRF did its initial study! And, we have clear evidence that BIA Judges and staff were well aware of these unresolved problems, yet totally ignored them in this decision.
No wonder EOIR barely bothers to do judicial training any more! Obviously, anything that might require critical thinking or judicial analysis unfavorable to the DHS just goes in one ear and out the other!
How bad are Forms -867? Here’s a description of a well-publicized recent incident in which the Border Patrol “Sworn Statement” on Form I-867 asserted that a three-year old toddler was coming to America to “find work!” AllGov reports from June 20, 2015 (http://www.allgov.com/news/unusual-news/border-patrol-agents-accused-3-year-old-of-crossing-border-in-search-of-work-150520?news=856769):

Border Patrol agents claim that a 3-year-old boy said the reason he came to the United States was to look for work, thus making it easier for the undocumented immigrant to be deported.

The boy, hailing from Honduras and identified in court documents as Y.F., was allegedly interviewed in the summer of 2014 by Border Patrol agents trying to determine if immigrants had a credible fear of harm or death if they returned to their home countries. Those who claim such fear—and can prove it—have a shot at getting asylum in the United States, while those who say they came looking for work are most often deported.

Agents interviewed Y.F. and wrote on the appropriate form that he said he was looking for work. A brief (pdf) filed by the American Immigration Lawyers Association (AILA) with the Justice Department Board of Immigration Appeals points out the unlikelihood of that being true. “Y-F-’s interview, so painstakingly transcribed, sworn, signed and counter-signed, almost certainly never happened in the format in which it was memorialized. The impossibility of the interview, in spite of the DHS officers’ affirmations of veracity and the rule of government regularity is plain on the face of the writings themselves: Y-F- was three years old at the time he was interrogated,” the brief said.

AILA says that information on those forms, I-867 A/B, “are not inherently reliable because they often contain fake responses, do not accurately reflect testimony presented, and were almost always created under coercive conditions,” according to AILA.

The case of Y.F. isn’t unique. Earlier this year, the Department of Homeland Security (DHS) argued that a particular undocumented immigrant should be deported because she came to the United States to find work in Dodge City, Kansas, according to Elise Foley of Huffington Post. The immigrant was 11 days old at the time.

The case against the infant girl was thrown out because her mother claimed the baby was born in the United States. The boy, now 4, has been living in a detention center in Texas for a year. He has been approved for release, but his mother has not, so he remains in detention.

Maybe he can apply for a work release.

Let’s see what else the BIA Judges “blew by” in J-C-H-F-.
- The Border Patrol agent acted as the Spanish interpreter. Interpretation is a professional job. It’s different from being “bilingual.” Indeed, at one past ImmigratIon Judge Conference, we actually received a graphic demonstration from the EOIR Interpretation Staff of how and why being bilingual wouldn’t necessarily qualify someone to interpret accurately in a legal setting! In one ear, out the other, I guess. The BIA gives no explanation of how and why a Border Patrol Agent would be qualified to interpret accurately.
- Yeah, but the BIA says it’s all OK because the respondent “understands English.” I probably “understand” German. If you said something slowly and clearly to me in German I probably could “get the gist” and say “Ja,” “Nein,” or “Nicht Verstehen.” But, would that mean I really understood what was going on? Highly unlikely!
- There is a body of evidence out there that asylum applicants are often traumatized as well as afraid of figures of authority such as “border police.” That can have something do with border statements. Indeed this respondent made such a claim. But, the panel simply blew it off, saying that the respondent was offered an opportunity to speak “confidentially with an officer.” How would that address trauma and fear of authorities? The BIA never tells us.
- The BIA reassures us that the statement is reliable because it “contains a detailed recitation of the questions and answers relating to the applicant’s claim, including the purpose of his visit, the length of his stay, and the issue whether he feared any harm if returned to Mexico.” Yet these are the very aspects of the I-867 that the USCIRF has said are often inaccurate, manipulated, or outright falsified.

The BIA could have selected as a precedent a case that illustrated the inherent shortcomings of the Form I-867 and why they should be viewed critically by Immigration Judges with at least a degree of skepticism, if not an outright presumption of unreliability. The BIA could further have used such a decision as a forum to demand that the DHS show what steps it has taken to address the problems discovered by the USCIRF and to improve the process for insuring accuracy of border statements if they want them treated with a “presumption of reliability” in Immigration Court.
Instead, the BIA once again “stuck its collective head in the sand” and ignored the real due process, fairness, and integrity problems plaguing our asylum adjudication system at all levels!
We can only hope that some independent Court of Appeals will take a more critical and objective look at the “border statement issue” than the BIA has chosen to do in J-C-H-F.
I also hope that in the future, respondents’ counsel make better use of readily available public materials to challenge over-reliance on border statements than apparently was done in this case.

PWS

02-22-18

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If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

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