"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Just because Attorney General Jeff Sessions announced that every illegal immigrant crossing the border would be prosecuted (resulting in parents being separated from their children), that doesn’t mean it’s morally defensible.
‘I have presided over a process that destroys families’
Judge can’t reconcile values and the law
Crackdown on illegal immigration takes its toll on a federal judge with an unparalleled sentencing record.
By Lauren Villagran
LAS CRUCES, N.M. — Day in, day out, immigrants shuffle into Judge Robert Brack’s courtroom, shackled at the wrist and ankle, to be sentenced for the crime of crossing the border.
The judge hands down sentences with a heavy heart. Since he joined the federal bench in 2003, Brack has sentenced some 15,000 defendants, the vast majority of them immigrants with little or no criminal record.
“See, I have presided over a process that destroys families for a long time, and I am weary of it,” said Brack one day in his chambers in Las Cruces. “And I think we as a country are better than this.”
Brack’s court in rural southern New Mexico is swollen with immigration cases, the migrants brought to his courtroom by the dozen. They exchange guilty pleas for “time served” sentences, usually not more than two months on the first or second offense. They leave his court as felons.
For years, federal authorities in this area along the New Mexico border have taken a distinctively hard-line approach to enforcing immigration law, pursuing criminal charges rather than handling cases administratively.
Essentially, authorities here have already been carrying out the “zero tolerance” policy Atty. Gen. Jeff Sessions unveiled in April, when he announced that all immigrants who cross the border will be charged with a crime.
Together, the Border Patrol and U.S. attorney’s office in New Mexico bring charges against nearly every eligible adult migrant apprehended at the state’s border, according to U.S. Customs and Border Protection. That amounted to 4,190 prosecutions last fiscal year.
Vigorous enforcement in New Mexico is a result of ample bed space in the state’s border county jails and a fast-track system that prosecutes nonviolent migrants quickly. The state also doesn’t face the volume of illegal crossings that south Texas does, for example.
“It is an efficient process,” says U.S. Atty. John Anderson of the District of New Mexico. “That is one of the key features that allows us to implement 100% prosecutions.”
For Judge Brack, it’s a punishing routine. And it has been building for a long time. Back in 2010, the judge had been on the federal bench for seven years, his docket overloaded with immigration cases, when “at some point I just snapped,” he said.
He sat down to compose a letter to President Obama to call for a more compassionate approach to immigration, one that would keep families together and acknowledge that the demands of the labor market drive immigration:
I write today because my experience of the immigration issue, in some 8,500 cases, is consistently at odds with what the media reports and, therefore, what many believe.
I have learned why people come, how and when they come, and what their expectations are. The people that I see are, for the most part, hardworking, gentle, uneducated and completely lacking in criminal history. Just simple people looking for work.
He didn’t get a reply.
No other federal criminal court judge comes near Brack’s sentencing record.
In the five years through 2017, Brack ranked first among 680 judges nationwide for his caseload, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks court data. He sentenced 6,858 offenders — 5,823 of them for felony immigration violations.
It’s a dubious honor for a man who is a devout Catholic and makes plain his moral dilemma in public hearings. He takes seriously his oath to uphold the laws of the United States. But he is a cog in a system he believes is unjust.
Johana Bencomo, director of organizing with the Las Cruces immigrant advocacy group Comunidades en Acción y Fe — Communities in Action and Faith — calls criminal prosecution of migrants “dehumanizing.”
“We’re just this rural community with some of the highest prosecution rates,” she said. “That is Brack’s legacy, no matter how you spin it.”
Advocates of stronger immigration enforcement counter that prosecutions are a crucial element of border security and have contributed to today’s historically low rates of illegal immigration.
“Criminal charges turn out to be one of the most effective tools for dissuading people from trying [to cross] again,” said Jessica Vaughan, director of policy studies at the Washington, D.C.-based Center for Immigration Studies, which advocates for tougher border enforcement.
The effects of this enforcement play out at the five-story, copper-colored federal building in Las Cruces, about 47 miles from the U.S.-Mexico border. Brack’s chambers are on the top floor.
In windowless cellblocks on the bottom floor, migrants from Mexico, Central America and Brazil wait to make their initial appearance in a federal magistrate courtroom.
The same scene repeats again and again: The immigrants crowd five broad benches, the juror’s box and the swivel chairs meant for attorneys. They wear the jumpsuits of the four county jails where they are being held: a sea of orange, navy, dark green, fluorescent yellow.
They hear their rights and the charges against them. They eventually plead guilty, to benefit from New Mexico’s fast-track process. Within a month or so, they will find themselves in Brack’s court for sentencing and within days they’ll be deported.
The border used to be wide open, but now it is closed, Brack tells each migrant at sentencing. There are more Border Patrol agents than you can count. Immigration used to be handled as a civil offense, but now it is criminal: a misdemeanor on the first attempt, a felony on the second.
“Everyone gets caught and what’s worse, everyone goes to jail,” he told one migrant, a Mexican woman named Elizabeth Jimenez Rios. “That is not how it has always been, but that is how it is now.”
Their fate is sealed, but Brack still asks the public defenders to tell each migrant’s story.
Elías Beltran, an oil field worker from Mexico, with no criminal history, tried to return to his wife and two kids, U.S. citizens in eastern New Mexico. He lived there for 15 years before he was deported.
Andres Badolla Juarez, a farmworker from Mexico, wanted to pick strawberries in California to support his wife, toddler and new baby — all U.S. citizens — in Arizona. He lived in the U.S. for 16 years and got deported after an aggravated DUI. It was his fourth failed attempt to cross the border.
Rosario Bencomo Marquez, a 52-year-old maid from Mexico, with no criminal history, hoped to return to her daughter and grandchildren in Santa Fe. She lived in the U.S. for 19 years before she was deported.
Brack also sees migrants charged with drug offenses or long criminal records and is unsparing in their punishment. But they are a minority, he said.
“I get asked the question, ‘How do you continue to do this all day every day?’ I recognize the possibility that you could get hard-edged, you could get calloused, doing what I do,” he said. “I don’t. Every day it’s fresh. I can’t look a father and a husband in the eye and not feel empathy.”
Brack, 65, is the son of a railroad-worker father and homemaker mother and earned a law degree at the University of New Mexico. He served as a state judge before being named to the federal bench by President George W. Bush.
In his chambers, above a shelf stacked with books on jurisprudence, Bible study and basketball, hang framed pictures of his forefathers: men who immigrated to the U.S. from England and Prussia. Brack grew up in rural New Mexico, where immigrants — whatever their status — were viewed as “valuable co-workers,” not a threat, he said.
After that first letter to Obama in 2010, he wrote another. And another. As the nation periodically heaved toward the possibility of immigration reform, only to leave the issues — and lives of millions — unresolved, Brack continued to write letters to the White House.
He told more heart-wrenching stories about families divided. He kept it up for four years. He pleaded for a civil debate: “See what I see, hear what I hear. Be wary of the loudest, angriest voices.”
He signed each letter with prayer: “May God continue to bless all those who serve our great nation.”
He never got a response. He stopped writing.
And now, after so many grueling years and thousands more immigration cases, Brack has decided enough is enough. He takes “senior status” in July, effectively stepping aside to serve part time. President Trump will name his replacement.
Villagran writes for Searchlight New Mexico.
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Imagine what the stress levels are like for U.S. Immigration Judges! They often have pending dockets in excess of 2500 cases; are expected to “grind out” so-called “oral decisions” in “life or death” cases without time to reflect or the assistance of judicial law clerks; lack the job tenure, independence, and status of an Article III judge; operate in an out of control court system largely without rules; have been stripped of effective control of their dockets; and are constantly subjected to disingenuous attacks, “production quotas” and a “bogus blame game” by their so-called “boss” Attorney General Jeff “Gonzo Apocalypto” Sessions — who has a well-earned reputation for lacking any moral sensitivity or responsibility for his statements and actions, having a biased and one-sided view of the law, and being totally unqualified and incompetent to administer a major court system that is supposed to be providing Due Process for migrants.
CORTEZ MASTO, COLLEAGUES CALL ON SESSIONS TO UPHOLD PROTECTIONS FOR LGBTQ ASYLUM SEEKERS FLEEING PERSECUTION
Washington, D.C. – Today, U.S. Senator Cortez (D-Nev) Masto joined Senators Kamala D. Harris (D-Calif) and Dianne Feinstein (D-Calif) and other Senate Democrats in sending a letter to Attorney General Jeff Sessions urging that the Justice Department uphold a ruling by the Board of Immigration Appeals (BIA) that provides protections for LGBTQ asylum seekers who are fleeing persecution. In the letter, the senators highlight the increasing threat of violence LGBTQ individuals face in many parts of the world.
“LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world,” said the senators. “As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals.”
The senators continued, “Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest.”
In addition to Cortez Masto, Harris and Feinstein, the letter was signed by U.S. Senators Tammy Baldwin (D-WI), Patty Murray (D-WA), Amy Klobuchar (D-MN), Kirsten Gillibrand (D-NY), Jeanne Shaheen (D-NH), Richard Blumenthal (D-CT), Tammy Duckworth (D-IL), Cory Booker (D-NJ), Bob Casey (D-PA), Chris Coons (D-DE), Bernie Sanders (I-VT), Patrick Leahy (D-VT), and Bob Menendez (D-NJ).
We write to express our concerns about your pending review of the Board of Immigration Appeals (“BIA”) decision in Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018) and the adverse impact such a decision could have on vulnerable populations fleeing persecution and violence. We urge you to uphold the BIA’s decision, which reflects a well-settled matter of law that provides critical protections for vulnerable populations, including LGBTQ individuals subject to private persecution that foreign governments are unwilling or unable to control.
LGBTQ individuals’ access to the U.S. asylum process has assumed increased urgency today as their persecution by both state and private actors is worsening in many parts of the world. As of 2017, 72 countries worldwide effectively outlaw same-sex sexual relations between consenting adults. Eight apply the death penalty as a punishment for such relations. A majority of countries lack applicable hate crime laws and have law enforcement agencies that neither effectively investigate nor document hate-motivated private violence against LGBTQ individuals. As just two alarming examples of state sponsored anti-LGBTQ actions this past year, Russian authorities in Chechnya undertook an anti-gay purge that involved the alleged torture of dozens of men, and Egyptian authorities engaged in a campaign to target and incarcerate individuals solely based on their sexual orientation.
Your referral order for the Matter of A-B- – in which you aim to address, “Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal” –has great import for the majority of LGBTQ asylum seekers who arrive in the United States fleeing persecution by private individuals. In the decades since this country first recognized LGBTQ status as a protected particular social group, it has been well established that LGBTQ individuals face grave risks in reporting private persecution or seeking governmental protection from such persecution abroad. Any change to this body of law would be a mistake.
In countries where government authorities engage in serious physical and sexual assaults of LGBTQ individuals, it is effectively impossible for them to seek protection from those same authorities when faced with private persecution. In some countries, simply asking for protection from state authorities can result in government-sponsored persecution. Even where state authorities are not active perpetrators of violence against LGBTQ individuals, they frequently turn a blind eye, emboldening private actors to engage in hate-motivated violence. U.S. State Department research highlights that foreign government retribution towards and lack of assistance for LGBTQ individuals who face private threats of persecution is commonplace, even when the population is not expressly criminalized. This chills the ability of LGBTQ individuals to report such persecution in their home countries.
Societal and familial considerations also often prevent LGBTQ victims of private persecution from coming forward to foreign authorities. They may be threatened with reprisals from their persecutors or coming forward would reveal their LGBTQ status and increase other persecution. In many countries, the act of reporting violence can have deadly consequences.
Altering the BIA’s decision in Matter of A-B- to place additional roadblocks and burdens upon asylum seekers could potentially deprive deserving LGBTQ applicants with an opportunity to secure protection in the U.S. that would save their lives. Any increase in the burden of proof for LGBTQ asylum seekers experiencing private harm – additional evidence not now needed by either the immigration courts or asylum officers to fairly adjudicate claims – would be unnecessary and contrary to the public interest. As such, we strongly urge you to leave undisturbed the BIA’s decision in Matter of A-B-.
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The effort is likely to be futile. It’s hard to believe that Sessions, given his xenophobic record and anti-asylum rhetoric, certified the case to himself (actually over the objection of both the DHS and the Respondent) just to uphold and strengthen refugee protections for abused women and LGBTQ individuals. Indeed, Sessions has a clear record of anti-LGBTQ views and actions to go along with his anti-asylum bias.
But, the law favoring asylum protections for victims of DV and LGBTQ individuals who suffer harm at the hands of non-state-actors that governments are unwilling or unable to control is now well established. Therefore, Sessions’s likely “scofflaw” attempt to undo it and deny protections to such vulnerable refugees is likely to “muck up the system” and artificially increase the backlogs in the short run, while failing in the long run to achieve the perversion of justice and denial of Due Process for asylum seekers that he seeks to impose.
Surprisingly, the Article III (“real”) courts don’t allow the disgruntled prosecutor to “certify” results that he doesn’t like to himself and rewrite the law in his own favor! That’s why the facade of “courts” operating within the USDOJ must come to an end, sooner or later!
Identity and Interest of Amici Curiae ……………………………………………… 1
ARGUMENT …………………………………………………………………………………3
Because particular social group jurisprudence is unduly
complex and applicants face various access-to-justice
barriers, Immigration Judges and Board Members will
frequently clarify an applicant’s proposed particular social
group ……………………………………………………………………………………. 9
The decision below disregards prior precedent in which Immigration Judges and Board Members have clarified an applicant’s proposed particular social group or allowed an applicant to present a revised particular social group on
appeal ………………………………………………………………………………… 21
This Court should vacate the decision below because its ambiguous holding will encourage Immigration Judges to be intolerant of applicants’ efforts to revise their PSGs and will enable the Board to issue boilerplate decisions denying relief ….. 28
In their decades of experience on the bench, amici regularly assisted applicants in the process of clarifying their proposed PSGs.Amici also allowed applicants to present revised PSGs during their administrative appeals. This judicial practice has afforded Board Members the flexibility to engage in an independent, meaningful review of the evidentiary record and provide appropriate relief to applicants based on revised PSGs. See, e.g., Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (granting the applicant asylum based on a revised PSG that the Board itself formulated). In light of the complexity of PSG jurisprudence and the various access-to-justice barriers that applicants must navigate in immigration court, it is essential that the judicial practice of clarifying PSGs is not chilled by the decision below. See, e.g.,Ardestani v. INS, 502 U.S. 129, 138 (1991) (noting “the complexity of
3
immigration procedures, and the enormity of the interests at stake . . . .”).
Because PSG cognizability is a legal determination, amici believe that Immigration Judges and Board Members are obligated to consider any potential PSG that is supported by the factual record—even if the PSG is being proposed for the first time on appeal. PSG clarification is consistent with the requirement that administrative immigration decisions “must reflect meaningful consideration of the relevant substantial evidence supporting the alien’s claims.” Abdel-Masieh v. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal quotations and citations omitted); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 390-91 (BIA 2014) (“The question whether a group is a ‘particular social group’ within the meaning of the Act is a question of law that we review de novo.”). In this way, the judicial practice of clarifying an applicant’s PSG to match the evidentiary record falls squarely within the traditional roles of impartial administrative immigration tribunals. SeeUNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 16 (2011) (“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared . .
4
. .”); Matter of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997) (“Although we recognize that the burden of proof in asylum and withholding of [removal] cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”). Importantly, Amici did not receive reproach from the Board for clarifying proposed PSGs. Nor were amici overturned by circuit courts on the basis that the Board should not consider newly revised PSGs on appeal.
Amici believe that the decision below, Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), if affirmed by this Court, will constitute a significant departure from the current judicial practice of PSG clarification. The Board held that it “generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.” (AR 3) This decision completely ignores an important reality of the immigration court system: that Immigration Judges and Board Members have frequently clarified applicants’ proposed PSGs.
HERE’S THE “CAST OF CHARACTERS:”
APPENDIX BIOGRAPHIES OF AMICI CURIAE
The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has also worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.
The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as
App. 1
the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.
The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.
The Honorable George Chew was appointed as an Immigration Judge in 1995 and served until 2017, when he retired. He also previously served as a trial attorney for the former Immigration and Naturalization Service in New York from 1979 to 1981.
The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former
App. 2
president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past Board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.
The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. After retiring from the bench, he became the Managing Partner of Joyce and Associates and has 1,500
App. 3
active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.
The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of theBoard of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.
The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid &
App. 4
Defender Association from 2002 until 2004. Prior to her appointment to the Board, she worked from 1991-1995 as Director of the Legal Action Center at the American Immigration Law Foundation, was in private practice, and was the 1982 co-founder of the asylum and legal program at Centro Presente in Cambridge, Massachusetts. She is the author ofImmigration Law and Crimes, and was an adjunct professor of law and taught immigration law at American University Washington College of Law between 1997 and 2004. An excerpt from one of Judge Rosenberg’s separate opinions was quoted by the United States Supreme Court in its 2001 decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Judge Rosenberg has served as a member of the International Association of Refugee Law Judges, an elected member of the Board of Governors of AILA, a Board Member of the Federal Bar Association, Immigration Law Section. She also frequently lectures and trains immigration attorneys on current topics of complexity, including asylum and refugee law, human rights, and the intersection of criminal and immigration law. Judge Rosenberg is the founder of the Immigration Defense and Expert Advocacy Solutions (IDEAS) Consulting and Coaching, LLC, where she provides legal mentoring, consulting, and personal and
App. 5
business coaching for immigration lawyers. She currently serves as Senior Attorney and Advisor for the Immigrant Defenders Law Group, PLLC.
The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for AILA and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.
The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served
App. 6
as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986-1987, 1979-1981) and Deputy General Counsel (1978-1987). He also worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. Judge Schmidt practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice
App. 7
Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.
The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review and helped manage FOIA, Privacy, and Security as EOIR Records Manager until he retired in 2011. Before becoming aBoard Member, Villageliu was an Immigration Judge in Miami and oversaw both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu was a member of the Iowa, Florida, and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, he joined the Board of Immigration Appeals as a staff attorney in January 1978 and specialized in war criminal, investor, and criminal alien cases.
App. 8
The Honorable Polly Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, Judge Webber practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. Judge Webber also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School.
The Honorable Robert D. Weisel served as an Immigration Judge in the New York Immigration Court from 1989 until his retirement at the end of 2016. Judge Weisel was an Assistant Chief Immigration Judge, supervising court operations both in New York City and New Jersey. He was also in charge of the nationwide Immigration Court mentoring program for both Immigration Judges and Judicial Law Clerks. During his tenure as Assistant Chief Immigration Judge, the New York court initiated the first assigned counsel system within the Immigration Court’s nationwide Institutional Hearing Program.
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A warm welcome to our good friend and colleague Judge (and former Assistant Chief Immigration Judge) of the U.S. Immigration Court in New York, NY!
Citizenship a key sticking point on immigration as 2 more Republicans sign petition to force votes
By Lauren Fox and Tal Kopan, CNN
Talks between Republicans across the political spectrum trying to find middle ground on a potential immigration deal that would unite the conference have reached a crossroads — and one again it has to do with citizenship.
At the moment leaders are trying to find a sweet spot between moderates and conservatives in the conference on what would be a permanent solution for recipients of the Deferred Action for Childhood Arrivals program, which President Donald Trump has ended but whose ultimate fate has been tied up in the court system. Conservatives have long argued that they are opposed to any kind of “special path” to citizenship for DACA recipients with some opposed to any path to citizenship at all. Meanwhile, moderates — who are just a handful of signatures from forcing a wide-ranging immigration debate next month — are pushing to ensure that DACA recipients can have a path to citizenship eventually.
On Thursday, two more moderate Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Tom Reed of New York, became the 22nd and 23rd GOP signature on the petition to force a vote on a series of immigration bills next month. If Republicans get at least 26 signatures, combined with 192 of 193 Democratic signature, the petition would force the votes. Only one Democratic House member has said so far that he will not sign the petition.
According to sources familiar with the negotiations, during a meeting with leaders Wednesday, GOP leaders were still trying to gauge whether the House Freedom Caucus would support a plan that would offer a bridge for DACA recipients to apply for green cards. Then, once a DACA recipient had a green card they could eventually apply for citizenship like other immigrants.
Talks are unlikely to move forward substantially before that issue is resolved, and it is unlikely that a decision will come before lawmakers return from their Memorial Day break, which started Thursday.
Trump calls for sweeping changes to US immigration legal process
By: Allie Malloy and Tal Kopan, CNN
President Donald Trump suggested in an interview that sweeping changes to what he described as a “corrupt” immigration legal system were necessary, while also questioning the need for a legal process for people apprehended trying to cross into the US illegally.
“How do you hire thousands of people to be a judge? So it’s ridiculous, we’re going to change the system. We have no choice for the good of our country,” Trump said in an interview that aired Thursday on Fox News.
“Other countries have what’s called security people. People who stand there and say you can’t come in. We have thousands of judges and they need thousands of more judges. The whole system is corrupt. It’s horrible,” Trump told “Fox & Friends” co-host Brian Kilmeade. He didn’t explain what he meant by “corrupt” and Kilmeade didn’t press him about the comment.
Trump also questioned the process of immigrants going through the court system at all.
“Whoever heard of a system where you put people through trials? Where do these judges come from?” he said.
The suggestion of eliminating the courts and judges, however, is contrary to the policies currently being carried out by his own administration, and would likely violate the Constitution and international law in addition to federal law. The Justice Department declined to comment on the remarks.
Asked by a reporter about Trump’s comments, California Rep. Zoe Lofgren, a former immigration attorney who is now the top Democrat on the main immigration law subcommittee in the House, said they run counter to US values and law.
“I guess he has no belief in due process and the Constitution,” Lofgren said.
Comments run counter to Justice policies
At odds with Trump’s comments is his own Attorney General Jeff Sessions, who has made overhauling the immigration courts a top priority, including in the support of hiring more immigration judges. The Justice Department has touted Sessions’ efforts as essential to combating illegal immigration and making the system stronger.
To state the obvious, there is no “immigration crisis” in America today other than that created or aggravated by Trump and his toxic scofflaw policies! On the other hand, Trump is a Constitutional crisis unfolding in real time!
The issue is compounded, Rosenstein said, by the fact that these migrant children must eventually be released from detention, and many never show up for their immigration proceedings before a judge. Rosenstein, quoting statistics from the Department of Homeland Security, said less than 4 percent of unaccompanied minors are ultimately removed from the United States.
“We’re letting people in who are creating problems. We’re letting people in who are gang members. We’re also letting people in who are vulnerable,” Rosenstein said. Because many of the migrant children lack families or a similar support system, they become “vulnerable to [gang] recruitment,” the deputy attorney general said,
Thomas Homan, the departing deputy director of Immigration and Customs Enforcement, said about 300 arrests related to the MS-13 gang were made on Long Island last year. Of those arrested, more than 40 percent entered the United States as unaccompanied minors, he said.
=
“So it is a problem,” Homan said. “There is a connection.”
Other federal statistics paint a somewhat different tale. From October 2011 until June of last year, U.S. Customs and Border Protection officials arrested about 5,000 individuals with confirmed or suspected gang ties, according to congressional testimony from the agency’s acting chief, Carla Provost, in June.
Of the 5,000 figure, 159 were unaccompanied minors, Provost testified, and 56 were suspected or confirmed to have ties with MS-13. In that overall time frame, CBP apprehended about 250,000 unaccompanied minors, according to Provost.
. . . .
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Read the full article at the link.
The Trump claims are, as usual, totally bogus. The percentage of gang members who come in as “unaccompanied minors” is infinitesimally small. The vast majority of these kids are gang victims entitled to asylum or relief under the Convention Against Torture if the law were fairly applied (which it isn’t).
Contrary to the suggestion by Rosenstein, when given access to legal representation, approximately 95% of the unaccompanied children show up for their hearings. And the “vulnerability” mentioned by Rosenstein is largely the result of the Trump Administration’s “reign of terror” against migrant communities which has made nearly all migrant children, along with other community members, “easy pickings” for gangs, with no realistic recourse to law enforcement. There are actually strategies for combatting gangs. But the Trumpsters have no interest in them.
Indeed, gangs have recognized that folks like Trump, Sessions, Homan, Neilsen, and now Rosenstein are their best recruiters and enablers. How dumb can we be as a country to put these biased, spineless, and clueless dudes in charge of “law enforcement.”
Interesting that in an obvious attempt to kiss up to Trump, Sessions, & Co and save his job, Rosenstein pathetically has decided that being a sycophant and sucking up to the bosses is his best defense. Particularly when it’s at the expense of kids and other vulnerable migrants seeking protection. Pretty disgusting! And, I doubt that it will eventually save him from Trump. Just tank his reputation and his future like others who have been “slimed for life” by their association with Trump.
Join the New Due Process Army and stand up for kids against the “child abuse” being practiced by the Trump Administration and its corrupt and incompetent officials.
Just recently, a Washington lawmaker asked me a question over breakfast that has stayed with me ever since. The national legislator is a Christian, but genuinely was having a hard time understanding the message and motivation of the evangelical “advisers” to President Donald Trump. He posed the sincere query, “What about Jesus?” It is exactly the right question and I have thought about it since our conversation: “What about Jesus?”
What do these evangelicals do with that question as they listen and talk with and for Donald Trump? Would Jesus talk this way about immigrants, act this way toward women, use such divisive language of racial fear and resentment, show such a blatant disregard for truth, prefer strong-man to servant leadership, and really say that one country should be “first?” What do we do with Jesus? That is always the right question, including when it comes to politics, and especially if we say we are followers of Jesus Christ.
I ask you to watch this short four-minute video in which several Christian elders from across many traditions and racial lines ask that vital question in their message of Reclaiming Jesus in a Time of Crisis. Listen to their voices and the core teachings of Jesus they are raising.
Of course the “Biblical Jesus” would “just say no” to the rhetoric, philosophy, and corrupt actions of the Trump Administration. Stomping on the poor to aid the rich? “Suffer the children to come unto me” so that I can can separate them from their mothers and put their mothers in prison? Denying protection to the vulnerable stranger? Adultery? Sexual humiliation and abuse of women? Lies? Elevating the material over the spiritual? Putting one’s own “cult of personality” and financial interests ahead of God’s? Self aggrandizement as opposed to self-sacrifice? No Way!
If Jesus were among us, He certainly would be one of the members of the “Migrant Caravans” waiting with the vulnerable to see how we will judge Him and whether He and those around him will receive mercy and justice. There is no way He would be “hanging out” with the Trump Administration and their vile dehumanizing actions and false narratives!
In recent years, the United States has been something of a beacon of hope for women fleeing violence and persecution in their home countries. In 2014, in a giant step forward, immigration courts explicitly determined that a person fleeing severe domestic violence may be granted asylum here if the violence rises to the level of persecution, if the government in the victim’s home country cannot or will not punish her abuser and if various other criteria are met. It’s a high bar but one that, sadly, women from many countries can clear. Now their last chance at protection may be under threat.
The case that established that certain victims of domestic violence are eligible for asylum was decided in a landmark ruling by the Board of Immigration Appeals, the highest court in our immigration judicial system.
The survivor in the case, a Guatemalan named Aminta Cifuentes, was a victim of severe physical and sexual abuse. Ms. Cifuentes had endured 10 years of unrelenting violence at the hands of her spouse, who burned her with acid, beat and kicked her, broke her nose and punched her in the stomach with such force when she was eight months pregnant that the baby was born prematurely and with bruises. Her husband told her it would be pointless to call the police, because “even the police and judges beat their wives.”
The ruling that granted her protection was a transformative one, not just for Ms. Cifuentes but for our country, too. At last, the United States stood firmly in opposition to violence against women and recognized that we can and should offer hope to survivors.
In March, however, Attorney General Jeff Sessions, in an unusual move, suddenly and inexplicably stepped into this seemingly settled matter to assign a similar petition for asylum, known as the Matter of A-B–, to himself for reconsideration.
The facts in the Matter of A-B- are similar to those in the 2014 case. Ms. A-B-, a Salvadoran, was brutalized by her husband for 15 years. He beat and kicked her, including while she was pregnant; bashed her head against a wall; threatened her with death while holding a knife to her throat and while brandishing a gun; and threatened to hang her. Ms. A-B- attempted to secure state protection to no avail.
When she went to the police after her husband attacked her with a knife, their response was that if she had any “dignity,” she would leave him. When Ms. A-B- did attempt to leave her husband, he tracked her down, raped her and threatened to kill her. When she finally got a divorce, her ex-husband told her that if she thought the divorce freed her from him, she was wrong. She fled the country after he told her that he and his friends were going to kill her and dump her body in a river.
When Ms. A-B- came to the United States seeking asylum, her case was heard by an immigration judge in Charlotte, N.C., named V. Stuart Couch, who is notorious for his high denial rate. Judge Couch denied her asylum; Ms. A-B- appealed, and the decision was overruled by the Board of Immigration Appeals, the same board that had ruled favorably in the 2014 case.
The board sent the case back to Judge Couch for security checks to be completed and asylum to be granted. Without any explanation, Judge Couch held on to the case and refused to grant asylum as directed. And then, deviating from normal procedures, Mr. Sessions took jurisdiction.
The attorney general does have the power to reconsider any decision by the Board of Immigration Appeals. However, the procedural irregularities, paired with the possibility that Mr. Sessions may be using his authority to upend the precedent set in the Cifuentes case, are troubling. Mr. Sessions has given himself the power not only to decide Ms. A-B-’s fate but also ultimately to try to rule on how our country handles claims for all survivors of domestic violence looking for asylum.
To be clear, we do not yet know what Mr. Sessions will decide. But in the context of the Trump administration’s antipathy toward asylum seekers, and Mr. Sessions’s statements and actions with regard to immigrant women, his decision to assign himself jurisdiction does not bode well. Asylum seekers who have arrived at the American border seeking protection have been vilified by this administration.
The government has targeted women in ways that would have been unthinkable under prior administrations, including separating mothers who arrive at the border from their children and detaining pregnant women. Mr. Sessions himself has expressed his deep skepticism about asylum claims based on gender-related persecution.
At a time when violence against women and girls is a global crisis, a decision to deny protection to women who flee gender violence, including domestic violence, would be a grave mistake. This is a moment of truth of our country. Will we remain a beacon of hope for women worldwide whose lives are on the line because of domestic violence, and whose governments cannot or will not protect them? The answer, it seems, is in the attorney general’s hands.
Matter of A-B-, was a straight-forward application by the BIA of its existing precedents on asylum for victims of domestic violence.
The Immigration Judge who wrongfully denied the original asylum application appeared to disregard the BIA’s mandate to check fingerprints and grant on remand, and instead delayed the case without any apparent valid reason for doing so.
Sessions “certified” this case to himself either though neither party had requested his intervention and, remarkably, the DHS requested that the certification be dissolved to allow the BIA to resolve any issues under its existing framework of asylum precedents.
Sessions has made a number of inflammatory, anti-asylum statements including several made in a speech to EOIR adjudicators.
Is this “Justice In America?” Or, is it a “Parody of Justice In America” taking place in a “captive court system” dedicated to one-sided enforcement rather than fairness and Due Process.
Join the “New Due Process Army” and fight against Sessions’s perversion of the U.S. Immigration Court system to fit his “enforcement only” viewpoint.
It is hard to imagine a more stressful situation for a young child than to be forcibly taken from his or her parents and detained with strangers. Sometimes this unfortunate outcome is necessary when children are the victims of parental violence or severe neglect. But in the case of current U.S. policy as articulated by the attorney general, the “abuser” is the federal government.
Forced separation of children and their parents is “child abuse by government.” And in this case, knowing what we now know about the consequences of severe stress in children, it is no stretch to assert that these new federal policies are not just cruel but also can have lifelong consequences for their child victims.
If Melania Trump meant what she said about children, she might want to organize a heart-to-heart meeting with the attorney general — and with her husband. Maybe the first lady could advocate for policies that reflect the spirit of her new agenda and a commitment to protect vulnerable families seeking safety and opportunity in the United States.
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Read the complete, very disturbing, article at the link. What kind of country with what kind of values puts a child abuser in charge of its legal system?Under Trump & Sessions, America has gone from a defender to an abuser of human rights. Sessions is a refutation of human decency every day that he is allowed to remain in the office for which he was so spectacularly unqualifiedin the first place.
Senator Liz Warren was right. Remember McConnell and the other smug Republicans who put this horrible individual in place to damage our youth and our reputation as a nation of laws, decency, and human compassion.
And yet, it would be a mistake to suggest that Trump’s innovations have been purely stylistic, that he’s merely stamped his garish branding on the GOP’s classic product. Beyond the unprecedented illiberalism of the president’s rhetoric, his approach to governance has been substantively distinctive enough to warrant its own title. Trumpism is real.
True, the president hasn’t converted his party to the populist paleoconservatism he preached on the campaign trail. But he hasimplemented an immigration policy that serves white nationalist aims to a degree without modern precedent; elevated corruption into a philosophy of government; and prioritized spectacle over substance in his approach to foreign affairs to the point that America’s geopolitical strategy is now less neoconservative or isolationist or realist than it is nihilistic.
Taken together, these innovations amount to a novel variation on the conservatism Trump inherited — one that truly came into its own this past week. To see why this is the case, consider three developments from the past five days:
(1) The White House stripped legal status from 57,000 Honduran immigrants — who had been residing in the United States for decades — over the fervent objections of the State Department.
American immigration policy has long been cruel, and shaped by nativist fears. Donald Trump’s approach to policing undocumented immigration is less distinct from Barack Obama’s than many of the latter’s admirers would like to believe.
Nevertheless, the current administration’s overall immigration agenda is markedly different from those of its predecessors. Racist cruelty is not merely a feature of Trumpist immigration policy, but its first principle: The White House’s overriding goal is to inflict terror and suffering on America’s nonwhite noncitizens, as a means of combating “the ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty” — as former White House national security adviser Michael Anton once described America’s status quo immigration regime. (The president gave less eloquent expression to this same worldview, when he insisted that America did need not any more immigrants from “shithole countries.”)
This reality is best illustrated by Trump’s treatment of immigrants with temporary protected status (TPS). Established by Congress in 1990, TPS allows migrants whose home countries have been destabilized by natural disasters or civil strife to live and work in the U.S. legally, on a temporary basis. In practice, it has provided hundreds of thousands of immigrants from the developing world with de facto permanent residency in the U.S. Over the past two decades, various earthquakes and hurricanes led the United States to give large numbers of Salvadorans, Haitians, and Hondurans TPS; then, the resiliently adverse political and economic conditions in those countries led our government to allow those migrants to keep their protected status, indefinitely.
Many of these immigrants have now lived the majority of their adult lives in the United States. Some have started families here — TPS recipients are the fathers and mothers of an estimated 273,000 U.S.-born children, all of whom are entitled to American citizenship. In a different political era, Congress might have passed legislation providing this population with permanent legal status by now. But with comprehensive immigration reform paralyzed on Capitol Hill, previous administrations — Democratic and Republican — have simply allowed TPS recipients to renew their protected status every 18 months. After all, what good would be served by deporting hardworking, longtime U.S. residents, who are raising American citizens, back to countries plagued by poverty and violence?
The Trump White House refuses to answer that question.
Instead, it has moved to deport 300,000 Central American and Haitian TPS recipients without providing any justification beyond a transparently fraudulent appeal to legal necessity: Homeland Security Secretary Kirstjen Nielsen has insisted that her hands are tied — the administration is legally obligated to withdraw these immigrants’ protections once the conditions that prompted them subside. Honduras has recovered from Hurricane Mitch; “temporary” means temporary. If Congress wishes to give these people permanent status, it can do so.
But this narrative is patently false: U.S. law requires the Executive branch to consider whether the TPS recipients’ home countries are stable enough to accept a large number of deportees before it terminates their protected status. And as the Washington Postrevealed this week, career officials in the departments of State and Homeland Security concluded that those countries weren’t. In fact, U.S. diplomats warned the White House that deporting TPS recipients en masse was likely to produce a “bonanza for smuggling networks and gangs,” as many of those longtime U.S. residents would seek extralegal means of returning to this country.
The administration ignored this advice. When Acting Homeland Security Secretary Elaine Duke extended protections for Hondurans last fall, John Kelly called her from Asia “to convey his frustration,” while Stephen Miller hectored other DHS staff. Duke resigned in February; last Friday, the administration moved to expel the 57,000 Honduran recipients of TPS, despite the fact that their home country is suffering from an epidemic of gang violence so severe, many of its citizens joined the caravan that marched from Central America to the U.S. border just last month.
Between the 300,000 immigrants stripped of TPS and the 700,000 Dreamers denied DACA, the Trump administration has attempted to revoke the legal status of roughly 1 million longtime U.S. residents; all while offering no explanation for its actions beyond the bogus claim that they were legally required.
The reason that the White House has neglected to disclose the actual rationale behind these policies is simple: Its true motivation is too incendiary to formally acknowledge.
You cannot expel immigrants who have been thriving in the U.S. for two decades, out of concern that they might prove unable to assimilate. You can’t deport a population that has a higher labor-force participation rate than native-born Americans on the grounds that it will be a burden on the U.S. economy. You cannot claim that your immigration policy is motivated by concern for public safety, when you move to deport law-abiding longtime residents — even though your diplomats warn that doing so will benefit criminal gangs and smugglers. And you certainly can’t claim that your hard-line immigration agenda puts the interests of all American citizens first, when you’re trying to separate hundreds of thousands of American citizens from their mothers and fathers. None of the polite restrictionist arguments apply.
But an impolite argument does: If the Trump administration’s goal is to combat the demographic threat posed by America’s rising population of “Third World foreigners,” then its TPS policy makes perfect sense. Trump can’t stem the tide of new, nonwhite immigrants without Congress’s help. But he can expel those with only a temporary claim to legal residence. And so that is what he has done. Which is to say: A mild form of ethnic cleansing is now a cornerstone of American immigration policy.
Read the rest of Eric’s very perceptive analysis at the above link.
Yup. It’s all about racism! That’s what Trump, Sessions, Miller, Cotton, Perdue, Goodlatte, & Co. have always been about. Essentially turning America back to the pre-1965 days of “national origins” immigration.
And, I’m pleased that someone OTM (“other than me”) finally has pinpointed the willfully false narrative behind the bogus claim that termination of TPS was “legally required.” Complete BS:
But this narrative is patently false: U.S. law requires the Executive branch to consider whether the TPS recipients’ home countries are stable enough to accept a large number of deportees before it terminates their protected status. And as the Washington Post revealed this week, career officials in the departments of State and Homeland Security concluded that those countries weren’t. In fact, U.S. diplomats warned the White House that deporting TPS recipients en masse was likely to produce a “bonanza for smuggling networks and gangs,” as many of those longtime U.S. residents would seek extralegal means of returning to this country.
Trump/Sessions racist immigration policies hurt the “good guys,” help the “bad guys,” and insure that American immigration “policies” will be a mess for decades to come. As Eric states, “A mild form of ethnic cleansing is now a cornerstone of American immigration policy.”
The only thing I’d dispute is the term “mild.” This is just the beginning. Trump, Sessions, & Co. have non-White populations of Americans, primarily Hispanics but also including African-Americans, Asian Americans, Arab Americans, etc., squarely within their sights.
Yes, there’s strength in diversity and in immigration! I’ve seen it in my courtroom and in my life. Don’t let Trump, Sessions, and their racist cronies destroy the greatness of America!
“Normalizing” Donald Trump is morally wrong and politically suicidal. Look what happened in the 1930s when the Western Powers tried to “normalize” Hitler and the Nazis. There’s nothing “normal” about White Nationalism and White Supremacy!
Join the New Due Process Army. Fight to Keep America Great!
As a young Justice Department lawyer, I was present at the creation of the Refugee Act of 1980, which together with its amendments and implementing regulations constitute the regime of asylum and refugee protection in the United States. During the Carter administration, I had a hand in the final drafting of the 1980 asylum law. As a U.S. immigration judge in Los Angeles from 1990 through 2007, I heard and decided thousands of cases in which citizens and stateless persons from foreign countries sought asylum in our nation. As a law professor both in California and in England, I have lectured on asylum and refugee law.
The asylum law was intended as a humanitarian measure to defend the defenseless by offering them the possibility of a new and secure life in the United States. But that will no longer be the case if Attorney General Jeff Sessions has his way. The Refugee Act of 1980 grants asylum status in the United States for any foreign-born individual who demonstrates past persecution or a well-founded fear of future persecution for reasons of “race, religion, nationality” as well as “membership in a particular social group” and “political opinion.”
Additionally, under precedent set over the course of decades by federal courts across the country, the persecution that triggers asylum protection must be committed or attempted by a foreign government, or by forces that the government is unable or unwilling to control. That the persecution may be official or private recognizes the fact that in many countries, civil society and the rule of law are nowhere to be found. In their place, governments often unofficially depend on ad hoc private parties and organizations to aid in the torture, persecution and murder of those deemed “enemies of the state.” The use of nongovernmental persecutors provides plausible deniability to regimes that deny complicity in the mistreatment of those they seek to eliminate.
Now the attorney general is attempting to undermine if not eliminate the “unable or unwilling” standard applied in asylum cases for decades. In 2016, in a case entitled “Matter of A-B-,” the Board of Immigration Appeals, the administrative court that reviews decisions of immigration judges, ruled that based on prevailing precedent, an asylum applicant seeking refugee status based on her membership in a particular social group” that led to her gross domestic abuse, had demonstrated that the government of her native El Salvador was unwilling or unable to protect her from her abusive ex-husband. The board remanded the case to the trial judge so that he might apply the correct “unwilling or unable” standard.
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Go on over to The Hill to read Judge Einhorn’s complete article!
Judge Bruce J. Einhorn has spent his career advancing the true rule of law and seeking to rectify the wrongs of the past: first as a prosecutor in the Office of Special Investigations at the U.S. DOJ bringing Nazi war criminals to justice (where I first came in contact with him); then as a U.S. Immigration Judge; and finally as a law professor. (Yes, folks, there was a time long ago when the USDOJ actually was on the side of seeking and guaranteeing justice for the persecuted, rather than engaging in child abuse, spreading false scenarios about immigrants and crime, promoting xenophobic myths about refugees, building the “New American Gulag,” and mis-using the US Immigration Court system as a tool of DHS enforcement to discourage refugees from seeking protection under our laws and international treaties to which we are party.)
By contrast, Jeff Sessions has spent his entire legal & “public service” career on the wrong side of history: trying to “turn back the clock” to the era of Jim Crow; promoting intolerance, unequal treatment, and hate directed at African-Americans, Hispanics, immigrants, and the LGBTQ community; perverting the rule of law and the Constitutional guarantee of individual rights and fairness for everyone in America; and denying the massive contributions to the success of the United States made by non-White, non-Christian, and non-U.S. citizen individuals.
Jeff Sessions is a much bigger threat to the security, welfare, and future of the United States than are desperate women and children from the Northern Triangle seeking to save their lives by exercising their lawful rights under U.S. and international law to apply for asylum.
FOIA results: evidence of Immigration Judge V. Stuart Couch’s shocking prejudgment of all domestic violence asylum claims
by Bryan Johnson on April 20, 2018
At the bottom, readers will find the all of the decisions of Immigration Judge V. Stuart Couch that resulted in BIA remands for the Fiscal Year of 2017.
Time and time again, IJ Couch’s decisions denying victims of domestic violence asylum contain carbon copy language.
Thus, it is clear that IJ Couch’s has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum. The following is one of his favorite passages to copy and paste.
The respondent’s evidence reflects that [the] physical and verbal abuse of her was related to his violent and jealous nature…The evidence in this case is more consistent with acts of general violence and therefore does not constitute evidence of persecution based on a statutorily protected ground.
Immediately below, I have excerpted key parts of the BIA & IJ Couch decisions. A clear pattern has emerged: IJ Couch does not grant asylum to women who are victims of domestic violence, despite clear instructions to the contrary from the BIA.
Pages 31-48:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, Guatemala has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Guatemalan society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison.”
BIA’s holding:
The respondent’s testimony reflects that people in the community knew them as a couple and
made comments reflecting their notions that the respondent could not escape the relationship (Tr. 232 at 66).
The respondent also testified that her parents did not help her leave the
relationship because of ingrained views that women are the property of men (Tr. at 33-35).
Under these circumstances, we conclude under the same reasoning as Matter of A-R-C-G-,
supra, that the proffered social group here is “immutable,” “particular” and “socially distinct.”
To the extent that the Immigration Judge determined that the respondent is not a member of this
particular social group, that determination is clearly erroneous. See Matter of A-R-C-G-, supra,
at 3 91 (the question whether a person is a member of a particular social group is a finding of fact
that we review for clear error).”
Pages 65-80:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, El Salvador has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Salvadoran society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
El Salvador, and thereby renders her past harm indistinct by comparison.”
BIA decision:
Finally, the record does not support the Immigration Judge’s determination that the past harm
the respondent suffered is “consistent with acts of general violence” which undermines her claim
for asylum (l.J. at 10). Further, even assuming her former partner’s “criminal tendencies and
substance abuse” played a role in his conduct (/d.), the appropriate inquiry is whether the
asserted protected ground was or would be “at least one central reason” for the claimed or feared
harm. See section 208(b)(l)(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341, 349 (BIA
2010)
Pages 81-96:
Immigration Judge Decision:
The respondent testified that when was drunk, he would physically and
verbally abuse her. She further testified “he was fine” when he was not under the influence
of alcohol. Thus, ‘s abuse appears related to his own criminal tendencies and
substance abuse, rather than conclusive evidence he targeted the respondent on account of
her proposed particular social group. The evidence in this case is more consistent with acts of
general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground.
BIA decision:
Upon review of the record, we conclude that a remand is necessary for the Immigration
Judge to further assess whether the respondent established that she is a member of a cognizable
particular social group. The Immigration Judge found that the respondent’s case is factually
distinguishable from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because she was not in
a marital relationship with her former partner and did not seek assistance from authorities
(I.J. at 7-9). While relevant, the distinguishing factors identified do not preclude the respondent
from establishing that her proposed particular social group is cognizable under the Act, and we
find that further fact-finding regarding the respondent’s experiences in El Salvador is necessary
to determine whether she satisfied the elements required to establish a valid particular social
group. See Matter of A-R-C-G-, supra, at 393 (stating that “adjudicators must consider a
respondent’s own experiences, as well as more objective evidence, such as background country
information”).
Pages 102-120:
BIA decision:
We find clear error in the Immigration Judge’s determination that the respondent was not
abused by her former partner on account of her particular social group. See l.J. at 12; 8 C.F.R.
§ 1003.l (d)(3)(i); Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (a persecutor’s actual
motive is a matter of fact to be determined by the Immigration Judge and reviewed by this Board
for clear error). The respondent testified that her former partner told her that a woman is not
more intelligent than he is and that the respondent has no value, comments which indicate that he
harmed her because of her perceived lesser status in the relationship (Tr. at 46).
Immigration Judge Decision:
The respondent’s evidence reflects that [the] physical and verbal abuse of her
was related to his violent and jealous nature, sometimes accompanied by his use of alcohol.
Thus, ‘s abuse appears related to his own criminal tendencies or substance abuse,
rather than conclusive evidence he targeted the respondent on account of her proposed
particular social group. The evidence in this case is more consistent with acts of general
violence and therefore does not co nstitute evidence of persecution based on a statutorily
protected ground. Huaman-Cornelio v. BIA, 979 F.2d 9 at l 000; Ruiz v. US. Att’y Gen., 440
F.3d 1247, 1258 (11th Cir. 2006).
Pages 137-155
BIA decision:
We disagree with the Immigration Judge that the respondent’s proposed social group, consisting of Honduran women
who are viewed as property and whose domestic partners refuse to allow them to leave their
relationship lacks the requisite immutability, particularity, and social distinction (l.J. at 7-10).
See Matter of M-E-V-G-, 26 l&N Dec. 227, 236-43 (BIA 2014) (outlining factors to be
considered when discerning whether a social group is cognizable under the Act); Matter of
The respondent’s evidence reflects that ‘s physical and verbal abuse of her
was related to his violent and jealous nature, heavy use of drugs and alcohol, and association
with drug traffickers. Exhibit 3, tab C at 17-19. Thus, ‘s abuse appears related to his
own criminal tendencies or substance abuse, rather than conclusive evidence he targeted the
respondent on account of her proposed particular social group. The evidence in this case is
more consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds
that the respondent has not established targeted her due to her particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
Pages 157-173
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature. The respondent testified Mr. ‘
motivation to harm her was anger when she would ask him for money so she could buy food
for her family. She recalled the final argument that led to their separation occurred when the
respondent confronted Mr. regarding his affair with her sister-in-law. Thus, Mr. ‘
abuse of the respondent appears related to his own violent and criminal tendencies, rather than
conclusive evidence he targeted her on account of her membership in a particular social group.
The evidence in this case is more consistent with acts of general violence and therefore does
not constitute evidence of persecution based on a statutorily protected ground.
Consistent with its immutability and particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison. For these reasons, the
Court finds the respondent has not met her burden to show the requisite social distinction
necessary for membership in a particular social group.
BIA decision:
The Immigration Judge further concluded that the respondent did not meet the immutability,
particularity and social distinction requirements for a cognizable particular social group (I.J. at 9-
12). We have held that depending on the facts and evidence in an individual case, victims of
domestic violence can establish membership in a cognizable particular social group that forms the
basis of a claim for asylum or withholding of removal. Matter of A-R-C-G-, 26 I&N
Dec. 388 (BIA 2014).
Pages 228-243
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘s physical, verbal, and sexual
abuse of her was related to his violent and jealous nature. The respondent testified Mr.
‘s motivation to harm her was anger after she reported his abuse to government
authorities. Thus, Mr. ‘s abuse of the respondent appears related to his own
violent and criminal tendencies, rather than conclusive evidence he targeted her on account of
her membership in a particular social group. The evidence in this case is more consistent with
acts of general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at 1000; Quinteros-Mendoza
v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds that the respondent has not
established Mr. targeted her due to her membership in a particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
BIA decision:
There appears to be no dispute that the verbal, physical and sexual abuse suffered by the
respondent at the hands of her stepfather, which occurred several times per week over a period of
years, rises to the level of past persecution. See, e.g., Barahon v. Holder, 588 F.3d 228, 232,
(4th Cir. 2009) (observing that “[a] key difference between persecution and less-severe
mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents”).
However, the Immigration Judge rejected as invalid the respondent’s proposed particular social
group of”Mexican children who are perceived as property and lack effective familial protection,”
finding that it lacked the requisite immutability, particularity, and social distinction (I.J. at 7-9).
The question whether a group is a “particular social group” within the meaning of the Act is a
question of law that we review de novo. Matter of A-R-C-G-, supra, at 390. On review, we find
that the particular social group posited by the respondent, under the circumstances of this case, is
valid under the reasoning of our recent decisions clarifying the approach to particular social
groups. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N
Dec. 208 (BIA 2014).
Pages 264-283
Immigration Judge decision:
The respondent’s evidence reflects that her former spouse’s physical, sexual, verbal,
and psychological abuse of her was related to his violent and jealous nature, and frequent
intoxication from alcohol. The respondent testified that is an alcoholic whose
motivation to harm her stemmed from his anger, dislike for her, jealous nature, and infidelity
with other women. Exhibit 2, tab C at 12-13. Based upon the respondent’s testimony, it
appears the threats, assault and rape she suffered at the hands of was intended to
intimidate and threaten her to comply his own selfish and criminal demands for sex.
Thus, the abuse suffered by the respondent appears related to the violent and criminal
tendencies of her abusive former spouse, rather than conclusive evidence she was targeted on
account of her membership in a particular social group. The evidence in this case is more
consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court fmds
that the respondent has not established her former spouse targeted her due to her membership
in a particular social group, which is required to prove the requisite nexus for asylum relief.
INA§ 208(b)( l)(B)(i).
BIA decision:
We additionally conclude that the Immigration Judge’s finding that the respondent was able
to leave her ex-husband is clearly erroneous (l.J. at 10-11).
However, the record reflects that the respondent’s ex-husband continued to threaten and physically abuse the respondent after -their separation,
despite her move to a town over 2 hours away from him, and that he raped her in…2014, after their divorce.
Pages 315-334
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature, often fueled by his use of alcohol and
drugs. Exhibit 2, tab H at 1-2. Mr. ‘ motivation to harm her appears to be based upon his
own criminal tendencies and substance abuse, rather than conclusive evidence he targeted
her on account of her membership in a particular social group.
BIA decision:
We also note that even if the evidence and testimony support a finding that the
respondent’s husband has a “violent and jealous nature” (I.J. at 12), this is not clearly separate
from a motive to persecute his wife based on feelings of domination and control, the hallmarks
of domestic violence.
Pages 373-393
Immigration Judge decision:
The respondent’s evidence reflects that her husband’s physical, verbal, and
psychological abuse of her was related to his violent and jealous nature, at times affected by his
use of alcohol. The respondent testimony suggests her husband’s motivation to harm her was
his dislike for her and suspicion she was being unfaithful to him. His motivation also appears
related to the respondent’s desire to leave him because of his infidelity, and his demands for
custody of their son. Based upon the respondent’s testimony, it appears the threats, assaults
and psychological abuse she suffered at the hands of her husband was intended to intimidate
her to obtain some unclear result.
BIA decision:
We conclude, based on the particular facts presented on this record that the respondent
established that she was a member of the particular social group she articulated. We further
conclude that the Immigration Judge erred in concluding that this case is distinguishable from
Matter of A-R-C-G-, supra, based principally on the fact that the respondent was able to separate
and live apart from her husband after he moved out of their home in 2013 (l.J. at I 0-l l ).
The respondent’s ability to live apart from her husband in Honduras is not a distinguishing factor
from the social group rationale articulated in Matter of A-R-C-G-, supra, where the respondent
credibly testified that her husband refused to consent to a divorce and showed up unannounced
and uninvited at her home on several occasions, once touching her in a sexual manner and telling
her that he has a “right” to her as his wife. Additionally, the respondent testified that she was
unable to leave the relationship in Honduras for numerous cultural reasons, including her fear that
would take their son away from her and her belief that she was unable to obtain a divorce
because of ‘s ties to local government officials (l.J. at 3-4; Tr. at 51, 56, 64-73, 99, 105).
See Matter of A-R-C-G-, supra, at 393 (recognizing that “a married woman’s inability to leave the
relationship may be informed by societal expectations about gender and subordination, as well as
legal constraints regarding divorce and separation.”). Further, that domestic violence is prevalent
in Honduras does not mean that the respondent’s proposed particular social group lacks discrete
boundaries, as the Immigration Judge determined (l.J. at 11).
*************************************
EOIR has been known to pass off this type of judicial misconduct as “normal deviations” in judging. But, there is a difference between honest variances in judicial philosophies and approach, which are present to some extent in all diverse judicial systems and might produce differing results, and clearly biased and unfair judging. Judge Couch’s performance clearly fits within the latter.
To state the obvious:
All of these incidents were “specifically targeted.” Therefore, Judge Couch’s determination that they were part of “generalized violence” is clearly fiction.
Asylum applicants are not required to demonstrate “conclusive evidence” of anything. “Conclusive evidence” is not a legal standard in any part of asylum adjudication.
What should have happened:
Judge Couch should have been removed from each of these cases for bias;
Like U.S. Courts of Appeals, the BIA should have “outed” Judge Couch, by name, in published opinions to give both applicants and the Fourth Circuit Court of Appeals notice of his problematic adjudication of asylum cases.
If Judge Couch continued his biased and unfair judging he should have been 1) ordered by the BIA not to hear any asylum cases involving women from the Northern Triangle, and 2) told that if his performance in asylum cases did not improve, he would be referred to the EOIR disciplinary system for Immigration Judges based on actual bias against asylum applicants.
There is simply no room in a true Due Process system, particularly one where many respondents are unrepresented, for a biased, anti-asylum judge like Judge Couch. Is this “being the world’s best administrative tribunals guaranteeing fairness and Due Process for all?” No Way! Jeff Sessions, who often enunciates biased, anti-asylum positions, is part of the problem, not the solution! Due Process can’t be restored to the U.S. Immigration court system until Jeff Sessions and the USDOJ are removed from the process.
We need an independent judiciary capable of telling judges who perform like Judge Couch to correct their behavior immediately — in other words, “shape up or ship out.”
In a sweeping enforcement change, Donald Trump’s administration will increasingly prosecute members of immigrant families who cross the border illegally, even if that means splitting children from their parents and regardless of whether they’re seeking safety in the U.S., Attorney General Jeff Sessions said Monday.
It’s already happening. On April 27, Border Patrol officers picked up a 30-year-old Salvadoran woman, Morena Mendoza Romaldo, with one of her children after she crossed into the U.S. near San Diego. She fled El Salvador because of sexual violence, according to court filings. She clearly told Border Patrol that she was afraid to return there; an arrest narrative filed in court has “credible fear claim” written on it.
Crossing the border illegally is a misdemeanor punishable by up to six months in jail. But previously the Justice Department rarely targeted family units — as the Border Patrol describes parents who cross with their children — for prosecution. Instead, authorities typically routed migrant families to immigration courts, and they were often released from detention after three weeks because of a court order limiting how long undocumented children may remain locked up. People with credible fear of being returned to their native countries were likewise often sent to immigration court instead of being criminally prosecuted.
But now, with the Trump administration looking for ways to crack down on policies its officials deride as “catch and release,” the response has gotten harsher.
Mendoza’s case was one of 11 immigration prosecutions filed against alleged members of a caravan of asylum-seeking Central Americans. At least two others were also separated from their children after facing prosecution for illegal entry.
Sessions and Immigration and Customs Enforcement’s acting Director Thomas Homan said during a press conference in San Diego that the Department of Homeland Security would refer for prosecution all cases of people crossing illegally, as part of a zero-tolerance policy — regardless of whether they’re fleeing persecution or traveling with children.
“People are not going to caravan or otherwise stampede our border,” Sessions insisted. He later said, “We don’t want to separate families, but we don’t want families to come to the border illegally.”
It will be up to individual U.S. attorneys to decide how many of the migrants will face criminal charges. In the past, limits on the number of government attorneys or courtroom capacity led authorities to instead route most people caught at the border through the traditional deportation process without convicting them of a crime first. Last week Sessions announced that the Justice Department hired 35 more assistant U.S. attorneys to help prosecute immigration crimes in the five federal districts that touch the U.S.-Mexico border. Immigration prosecutions have taken up roughly half the federal criminal docket since 2008, after policy changes pioneered by George W. Bush, institutionalized under Barack Obama and now enthusiastically embraced by Trump.
The zero-tolerance policy won’t apply to those who seek asylum at ports of entry, which is not illegal, although the Trump administration has publicly urged migrants to stay in Mexico instead. At least two of the 11 alleged caravan members facing prosecution for illegal entry — Olga Esmeralda George and Marbel Yaneth Ramirez-Raudales — said they tried to initiate asylum claims at a nearby port of entry but were turned away, according to court filings.
Sessions’ plans are already facing opposition from the San Diego Federal Public Defenders’ Office. Illegal entry prosecutions are often open and shut cases. But attorney Eric Fish has asked the court to dismiss three of the 11 alleged caravan members’ cases, arguing that his clients, including Mendoza, were targeted for political reasons that amount to unconstitutional discrimination.
If other countries treated people seeking refugee protection in this way, the United States would be appalled.Eleanor Acer, refugee protection program director, Human Rights First
In court filings littered with Trump’s tweets excoriating the caravan, Fish contended that Border Patrol agents arrested the three defendants at the same time as a group of Indian nationals. But the Indians were never prosecuted.
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“The government cannot choose its defendants based on their alleged country of citizenship, but that’s exactly what it did here,” he wrote in a court filing. “The Court should not stand for such invidious discrimination, and should dismiss the complaint.”
Fish is also disputing the $10,000 bonds set by the court, arguing that his clients present no flight risk and could be instead monitored by GPS and released on their own recognizance.
The cases highlight how much energy Sessions is devoting to some of the pettiest crimes possible. Until he announced his zero-tolerance policy, illegal-entry prosecutions were all but unheard of in San Diego. And in the three contested cases, the government offered to free the defendants on time served if they pleaded guilty.
At least two of the defendants said they intend to seek asylum, which generally exempts people from criminal prosecution for illegally crossing the border. One of them, Yaneth, attempted to turn herself in at a legal port of entry but was turned away, according to court filings. Under U.S. law and international treaty obligations, Customs and Border Protection is required to let in migrants who say they fear persecution in their country of origin. But CBP faces a lawsuit in the Southern District of California alleging that the agency often flouts those rules.
Organizers with the caravan disputed that the migrants facing prosecution were affiliated with their group, though they said it’s possible that some had joined the caravan and later left it. At its peak, the number of migrants traveling with the caravan topped 1,000, but its numbers dwindled to fewer than 300 as some decided to remain in Mexico, were counseled that their asylum claims would be hard to press in U.S. courts or were repelled by the open hostility of top Trump administration officials.
“It’s pretty obvious that they don’t know who is part of the caravan or not,” said Alex Mensing — an organizer with Pueblos Sin Fronteras, which coordinated the caravan — noting that one of the defendants, Eric Alberto López Robles, is a Mexican national and that the caravan did not work with any Mexican adults. “It just doesn’t add up.”
Those crossing with the caravan were instructed to go through a legal port of entry to make their claims and were advised against crossing illegally, according to Nicole Ramos, the director of Al Otro Lado, a nonprofit group that is offering legal services to the caravan’s members. Ramos, who once worked as a federal public defender, said that in legal workshops, she warned about the threat of prosecution.
“After people were given transit visas, perhaps some of them went in other directions, but they were not integrated into the caravan,” she said. “The goal of the caravan was to get to Tijuana and present themselves legally. And as part of the legal orientation we gave, we specifically advised people about criminal prosecutions.”
Prosecuting people who are seeking asylum could violate international law, according to human rights advocates. Border Patrol was warned about this at least once, when the DHS Office of the Inspector General issued a report in 2015 saying the agency risked violating U.S. treaties by referring people for prosecution even though they expressed fear of persecution in their native country.
Immigrant rights advocates have been hearing for months from parents who were separated from their children and in some cases aren’t sure how to get in touch with them. The practice “is simply barbaric,” said Eleanor Acer, who leads the refugee protection program at Human Rights First.
“If other countries treated people seeking refugee protection in this way,” she said, “the United States would be appalled.”
*******************************************
Similar “strategies” have been tried and failed in the past under Administrations of both parties. But, doubling down on failed strategies, particularly when they disproportionately harm and punish a group consisting largely of Hispanics, is a Sessions specialty.
I will be interested to see how independent Article III Judges react to having their courtrooms clogged and judicial time focused on minor misdemeanors (rather than serious crimes) as part of the Administration’s enforcement apparatus
WASHINGTON — Central Americans who travel north to plead for entry at the U.S. border are taking their chances on an immigration system that is deeply divided on whether they can qualify for asylum if they are fleeing domestic violence or street crime, rather than persecution from the government.
The law in this area remains unclear, and the outcome of an asylum claim depends to a remarkable degree on the immigration judge who decides it.
And sitting atop the immigration court system is Atty. Gen. Jeff Sessions, a longtime advocate of much stricter limits on immigration who has recently taken an interest in reviewing asylum cases.
Lawyers say they are troubled by a legal system in which decisions turn so much on the views of individual judges.
Among the 34 immigration judges in Los Angeles, two granted fewer than 3% of the hundreds of asylum claims that came before them in the last five years, while another judge granted 71% of them. The disparity is even greater in San Francisco, where the judge’s rate of granting asylum claims ranged from 3% to 91%.
Overall, asylum seekers would do much better in San Francisco, where 32% were denied between 2012 and 2017, compared with a 68% denial rate in Los Angeles during the same period, according to data from the Transactional Records Access Clearinghouse at Syracuse University.
This is not news to immigration lawyers. A decade ago, several law professors published a study called “Refugee Roulette” that revealed how asylum cases depend heavily on the views of individual judges. “The level of variation was shocking. And it hasn’t changed,” said Georgetown University professor Philip Schrag.
Judge Ashley Tabaddor from Los Angeles, president of the National Assn. of Immigration Judges, discounts the statistics. “They’re not reliable,” she said, since judges may have very different caseloads. Some judges hear claims from people who have been detained for crimes, while others hear mostly claims from juveniles, she said.
“We are human. Different people can have different views about the same set of facts,” she said.
Several Los Angeles lawyers who have won or lost asylum cases in recent months said the identity of the judges played an important role. “It’s astounding how much variation there is from judge to judge. The system is in need of repair. It’s an embarrassment,” said Joseph D. Lee, a partner at Munger, Tolles & Olson.
He represented an El Salvador mother who fled north with her three children after gang members shot and killed her husband’s brother in front of her family and then threatened to do the same to her relatives.
“The Central American cases can be difficult to win. Some judges are pretty hostile to gang-related claims,” he said. His client’s claim was denied, and he plans to appeal. “Your chance of winning an asylum claim shouldn’t turn on the luck of the draw on which judge you get. But that is exactly how it works,” he said.
It may soon become much harder to win such claims. Under an unusual feature of the law, the attorney general, as the nation’s top law enforcement officer, also oversees the immigration courts. He can overrule their decisions and announce new rules that are binding on them.
In March, Sessions announced he would review the question of whether women fleeing domestic violence or other “private criminal activity” can rely on this to win asylum.
Last fall, Sessions spoke to a meeting of immigration judges and complained America’s “generous asylum” system has become “overloaded with fake claims.… The credible fear process was intended to be a lifeline for persons facing serious persecution. But it has become an easy ticket to illegal entry into the United States.”
In the last week, the American Bar Assn., faith-based groups and a coalition of immigration law professors have submitted “friend of the court” briefs to Sessions urging him not to reverse years of precedent involving women fleeing abuse and terror.
But veteran immigration judges are not optimistic. Sessions “just wants more people to be removed,” said Paul W. Schmidt, a retired immigration judge from Virginia and an outspoken critic of the attorney general. “He will make it a lot harder for Central Americans to get asylum.”
The dispute begins with the words of the asylum law. In the Refugee Act of 1980, Congress adopted the United Nations standard and said people may seek asylum if they are “unable or unwilling to return” to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
Under the law, asylum seekers are treated differently than, for example, refugees from a war-torn nation or immigrants seeking work.
Four of those terms in the asylum law are clear enough: race, religion, nationality and political opinion. But lawyers and judges have struggled to decide what counts as “membership in a particular social group.”
Courts have agreed that gays and lesbians can count as a social group, since they have suffered persecution in many societies. Some judges have also said women and girls fleeing sexual abuse and violence can seek asylum because their society views women as the property of men — and with no hope for protection from their government.
But the question becomes harder when considering the gang violence that has spread through some Central American countries. For example, people who testified against violent gangs or resisted them in other ways have sought asylum on the grounds they are members of a particularly endangered social group.
“These cases are challenging,” said Nareeneh Sohbatian, a Los Angeles lawyer at Winston & Strawn who supervises asylum claims. “We talk a lot about this. If they are targeted because of a gang, it can be difficult to show it was caused by their membership in a particular social group.”
Jenna Gilbert, managing attorney for Human Rights First in Los Angeles, said it is clear the asylum law does not protect people fleeing “generalized violence.” A claim “needs to be tied to the one of the protected categories,” she said. “The cases are very fact-dependent.”
But the odds of winning asylum are not good for Central Americans. In the last five years, China had the largest number of asylum seekers in the U.S. immigration courts, and only 20% of their claims were denied. Ethiopians did even better, with only 17% denied. By contrast, the highest denial rates arose from claims brought by natives of Jamaica (91%), the Philippines (90%), Mexico (88%), El Salvador (79%), Honduras (78%) and Guatemala (75%).
Andrew Arthur, a former immigration judge who works at the Center for Immigration Studies, which favors stricter enforcement, said it is not surprising that Sessions will reconsider rulings on asylum in cases of domestic violence. “Right now, the law is very unclear. The phrase ‘particular social group’ is vague. A lot of these claims are compelling, but that doesn’t mean it is ‘persecution’ under the law. If a gang wants to recruit me, that’s not persecution.”
Last month, Sessions criticized a caravan of Central American asylum seekers approaching the border as a “deliberate attempt to undermine our laws and overwhelm our system. There is no right to demand entry without justification. Smugglers and traffickers and those who lie or commit fraud will be prosecuted to the fullest extent of the law.”
People who present an asylum claim at the border must only show they have a “credible fear” of persecution if they were to return home. Most asylum seekers are allowed to stay and make their claim.
Sessions said he would send more prosecutors and judges to the border area to resolve these claims quickly, rather than let them linger for many months or years.
Meanwhile, lawyers are also rushing to represent the asylum seekers. “Unfortunately, the Trump administration has waged a yearlong campaign to undermine asylum seekers and demonize those who only wish to live in safety with the families,” said Gilbert of Human Rights First. “We’re proud to assist these individuals who are fleeing unspeakable horror as they try to rebuild their lives.”
*************************************
It’s really not that complex.
Under the BIA’s seminal precedent decision in Matter of Acosta, 19 I&N Dec. 285 (BIA 1985) resisting gang recruitment is undoubtedly a characteristic that is “fundamental to identity” therefore making an individual a member of a “particular social group” (“PSG”) for asylum purposes.
Undoubtedly, this conduct is threatening to a gang’s existence and power and is “at least one central reason” why forced recruitment and other forms of harm are used, among other things, to overcome this fundamental characteristic of the PSG.
Therefore, the vast majority of those fleeing the Northern Triangle over the years because of various forms of resistance to gangs should have qualified for asylum under the Acosta test.
However granting most of these cases might have been perceived as “opening the floodgates” and therefore career threatening to the BIA.
Following the “Ashcroft Purge,” which removed almost all of the Appellate Judges on the BIA who consistently stood up for the rights of migrants and asylum seekers, the BIA came up with bogus requirements of “particularity” and “social visibility/social distinction” to facilitate the denial of most asylum grants to individuals from the Northern Triangle.
To do this, the BIA actually had to intentionally and disingenuously misapply criteria developed by the UNHCRto expand the protection available on the basis of a particular social group to instead restrict the group entitled to protection.
With the “due process” group of judges removed by Ashcroft, the BIA was able to get away with this with no visible internal resistance.
However even under the BIA’s new “bogus test” almost all experts agree that individuals resisting gang recruitment in countries where “go along to get along (and live)” is the norm would be both a well-defined “particularized” group and highly “socially distinct.”
Consequently, the BIA and a number of anti-asylum Immigration Judges simply resorted to intentionally misconstruing country conditions and making biased “no nexus” findings or largely bogus “adverse credibility rulings” to keep the Northern Triangle grant rate unrealistically low.
A great way to maximize denials is to hold individuals in detention or game the system so that they can’t obtain competent representation and/or “fail to appear” in Immigration Court thereby denying them the relief that the likely could win in a truly fair, unbiased system.
Remarkably, the article quotes a source who espouses one of the many DHS “enforcement myths” — that forced recruitment can’t be a basis for asylum.
This is nonsense. Even under BIA’s intentionally restrictive precedents, the factual reasons why the respondent is being recruited (“nexus”) are important.
But, as a practical matter, no detained, unrepresented applicant has any realistic chance of understanding the law and developing the factual record necessary to support relief.
Also, in the Northern Triangle gangs have infiltrated the system to the extent that it is almost impossible to separate “political motives” from supposedly “criminal ones/”
Individuals are forcibly recruited as punishment for a variety of reasons including family membership, having been witnesses against gangs, actual or imputed political opinion, and actual or imputed religious views.
With competent lawyers, time to prepare, and an attentive Court of Appeals, most credible gang-related cases should qualify for asylum.
Without lawyers or the chance to develop and document a case, the chances for success are almost nil.
Even though the system is already heavily rigged against bona fide asylum applicants from the Northern Triangle, Attorney General Jeff Sessions has made it clear that he intends to further misconstrue the law to make it virtually impossible for refugees fleeing the Northern Triangle to qualify for asylum
Given the total corruption of the governments in the Northern Triangle and the serious infiltration by gangs, a fair process should result in a “blanket precedent” that would give almost everyone credibly fleeing gang threats in the Norther Triangle at least “temporary withholding of removal” under the Convention Against Torture (“CAT”).
No, the problem is not just that different Immigration Judges have different opinions. It’s that both the composition of the Immigration Court and the administrative case-law have been consciously “rigged” to deny those seeking protection from the Northern Triangle the protection to which they should be entitled under both U.S. and international law.
Yes, I of all people certainly agree that judges can and should have differing views and philosophies,
But, at some point, “differences” become “biases.”
There is no way that those judges whose grant rates are below 10% can actually be applying asylum law in the generous manner set forth by the Supreme Court in Cardoza-Fonseca or the BIA itself in Matter of Mogharrabi.
Nor are they properly applying the “benefit of the doubt” as it’s supposed to be given according to the UNHCR in systems based on the 1952 Geneva Convention on Refugees.
No, I wouldn’t “fire” any current Immigration Judges (although I might over time make everyone re-compete for their jobs in a true merit-based selection system). But we do need:
An independent Article I U.S. Immigration Court, free from the pernicious political influence that the DOJ has been applying for many years.
A real merit selection system for future Immigration Judges that emphasizes expertise in immigration and asylum law and proven ability to deal fairly, effectively, and objectively with the public and which utilizes panels with some members from outside the Federal Government who practice before the Immigration Courts.
An Appellate Division that functions like a true independent Appellate Court, with a diverse membership, that will rein in those judges who are biased against asylum seekers and not applying Cardoza-Fonseca.
As I’ve pointed out before, things simply can’t happen under the highly biased, xenophobic Jeff Sessions. He is the “perfect storm” of why the Immigration Judiciary must be removed from the DOJ.
As a historical aside, an unfortunate harbinger of things to come, the BIA actually misapplied their own “immutability/fundamental to identity” test to the facts in Acosta!
Of course “taxi drivers in San Salvador” were a PSG! Ask any New Yorker whether being a taxi driver is “fundamental to identity!”
Occupational identification, at all levels of society, is one of the most powerful indicators of self-identity and one that we seldom ask individuals to involuntarily change. Think that “truck drivers” aren’t a “PSG?” Just walk into the next Pilot Truck Stop you see on the Interstate in your little black judicial robe and shout that next to the Drivers” Lounge or rest rooms. I think you would find some “strong dissenters.”
Or how about going before a group of judges and telling them that being a judge isn’t “fundamental to identity!” I remember when a somewhat “tone-deaf” (but in retrospect, perhaps clairvoyant) invited speaker at one of our past Annual Immigration Judges’ Conferences referred to us as “just highly paid immigration inspectors working for the Attorney General.” He barely got out alive!
The BIA ruling in Acosta was “doubly absurd” in the context of 1985. The U.S. was then actively engaged in supporting the Government of El Salvador against the guerrillas. The BIA suggested that the taxi drivers in San Salvador could merely quit their jobs en masse or participate in the guerrillas taxi strike called by the guerrillas. Both of which would have crippled the country of El Salvador and seriously undermined the government we were supporting!
In short, the BIA has a long ugly history of twisting the law and the facts against legitimate asylum seekers, particularly those from Latin America.
Jeff Sessions, well-known for his long history of xenophobia, racially charged attitudes and actions, and bias against nearly every non-White-male-straight-right-wing-Christian social group in America is on the cusp of making things even worse for vulnerable refugees entitled to our protection by abusing his power as AG and stripping the hard earned asylum rights from abused women — who had to labor through 15 years of wrong BIA decisions, outrageous political maneuvering at the DOJ, and task avoidance at the BIA to win their hard-earned rights in A-R-C-G- in the first place!
Only cowards pick on the vulnerable and the dispossessed!
Eventually, long after I’m gone, I’m sure the “truth will out.” However, that will be little help to those currently being railroaded through the travesty that passes for justice in today’s U.S. Immigration Courts or those who have been denied justice in the past.
The “caravan” of asylum-seeking migrants that has finally arrived at the U.S.-Mexico border is a test of American character and purpose — a test President Trump wants us to fail.
I put caravan in quotation marks because the group that reached Tijuana hardly qualifies for the term. Just a few dozen would-be entrants presented themselves at the Port of San Ysidro on Sunday — only to be told that U.S. immigration officials were too busy to attend to them. Another several hundred were reported to be in the general area, waiting their turn to attempt to cross the border.
Trump has spoken of these people as if they were some kind of rampaging horde. Attorney General Jeff Sessions has accused them of “a deliberate attempt to undermine our laws and overwhelm our system.” The truth is that this sort of thing happens every year: Would-be migrants seek safety in numbers as they make the long and perilous trek north through Mexico.
Sessions probably understands this context; Trump probably doesn’t. But I believe both are sincere in their desire to stanch the flow of Latino immigration — not, I strongly suspect, because of drugs or crime, but because they loathe the demographic and cultural change that is taking place.
While he and his administration were being appropriately roasted at the White House Correspondents’ Associationdinner on Saturday evening, Trump was at a rally in Michigan saying that our immigration laws are “corrupt . . . so corrupt” and that the motives of those who defend our nation’s traditional role as a haven for asylum seekers are political. “The Democrats actually feel, and they are probably right, that all of these people that are pouring across are going to vote for Democrats, they’re not going to vote for Republicans.”
They’re not going to vote for anybody, of course, since they’re not citizens. Truth doesn’t matter to Trump. But you knew that.
What seems to really drive the president crazy is that the United States remains a haven for those fleeing persecution. Trump laid out his complaint Saturday: “If a person puts their foot over the line, we have to take them into our country, we have to register them. We then have to ask them a couple of questions. Lawyers are telling them what to say. How unsafe they are. And once they say that, we have to let them go, to come back to court in like a year. Only one problem: They don’t come back, okay. That’s the end. Welcome to the United States.”
You will have noticed that missing from Trump’s rant is any sense of morality or mission.
There is a reason the law makes provision for those seeking asylum. In 1939, Congress rejected a bill that would have admitted 20,000 German Jewish children. Later that year, authorities refused to allow the St. Louis, a ship carrying about 900 German Jews, to dock in Miami; the Coast Guard sent out patrol boats to warn the ship away. The St. Louis was forced to return to Europe, and 254 of its passengers later perished during the Holocaust.
That shameful history led to changes in immigration policy that prohibit rejecting claims of asylum out of hand. The bar is high, but many of the Central American asylum seekers probably clear it.
In El Salvador, Honduras and Guatemala, the major threat comes from rampant gang violence. Boys are often offered a stark choice: Join a gang or be killed. Girls are threatened with rape. It is easy to say this is a problem local elected officials and police ought to solve, but government institutions are weak, and corruption is widespread. What choice does a family under imminent threat have but to flee? What would you do?
It is of course true that not every Central American who asks for asylum truly merits it. That’s why each case is examined and evaluated, with all the time needed to reach a proper determination — which is how the migrants now at the border must be handled, despite what Trump and Sessions might prefer.
To close our eyes and hearts to legitimate claims of persecution would be to repeat the shameful and tragic mistakes of the World War II era. If the subjects of Trump’s demagoguery were summarily denied entry, as he apparently would like, most would be forced to go home and some would be killed. That would be a terrible stain on the nation’s conscience.
I’m tempted to add that it would be a stain on Trump’s conscience as well, but it’s not clear that he has one.
I remember walking through the “St. Louis Exhibit” at the Holocaust Museum (on an EOIR-sponsored tour, no less, for a long ago and far away Annual Judges Conference — my how official racism & xenophobia have changed things) and asking myself how we could have done that to our fellow human beings.
Then, we had a “special session” explaining the catastrophic failure and cowardice of the German Judiciary during the Nazi rise to power. Judge after judge “adhered to the rule of law” even when those laws unfairly disenfranchised Jews, deprived them of their properly and lawful occupations, and eventually sentenced them to mass death!
I’ve now come to the unhappy realization that the St. Louis might have represented the norm, rather than the exception, to the reality of American democracy and its serious anti-Semitic and racially biased undertones. And, the actions of the corrupt & cowardly German judges of that era are certainly what Trump, Sessions, and their cronies are referring to when they disingenuously pontificate about “the rule of law” and looking for judges, Government officials, and lawyers who are committed to applying it in a biased and one-sided fashion
It’s their rule of law, as they consistently misconstrue it to protect only their favored political and racial groups, and misuse it “punish enemies” and to carry our their increasingly racist, White Nationalist agenda.
And yet 40% of our fellow countrymen are enthusiastically supportive of this heinous agenda. What’s wrong with them? Why ask ourselves how Nazism could have overtaken Germany when we’re in the process of trying to repeat that sordid history here? It’s pretty easy to see Hitler rallies of the 1930s in the Trump rallies of today. The same vicious disregard of both the truth and humanity, scapegoating, and an attacks on the true rule of law and on those who stand up for democracy, all wrapped in an appeal to false religious nationalism!
We’re failing as a nation on both a moral and a legal basis. It remains to be seen whether the resistance to Trump, his supporters, and his enablers will be sufficient to preserve democracy and human decency in America.
