"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Before Trump, Arlington was a “model court” where Immigration Judges, with the help of the ICE Chief Counsel and the private bar, developed “best practices” and asylum seekers got a fair shake. In just a few short years under the Trump regime, it has moved steadily in the other direction toward the type of “denial factory” that the Trump regime wants to be the model for all Immigration Courts. Of course, Arlington isn’t close to the 100% denial rate that the regime wants and that is close to realization in some other courts. But, the deterioration of due process and fairness in Arlington is still disheartening.
We should always remember that the unconstitutional “weaponization” of the Immigration Courts is continuing to happen right under the noses of a feckless Congress and Article III Judges who should long ago have ended this abomination. Everyone responsible for this life-threatening mess will have much to answer for in the “Court of History.”
In the meantime, congratulations and appreciationto those judges who keep interpreting and applying asylum law in the generous way dictated by Cardoza-Fonsecaand Mogharrabi. You are heroes in an age that where all too many show cowardice and a willingness to “go along too get along” in the face of great tyranny!
Due Process Forever! Judges Who Won’t Stand Up For Asylum Seekers, Never!
WASHINGTON — Seattle’s immigration court will close down as the nation continues to grapple with managing the coronavirus pandemic, and several other large immigration courts will postpone certain hearings for immigrants who are not detained that often involve large groups.
The court in Seattle was temporarily shut down earlier this week over a report of a second-hand exposure to the virus and will remain shut until April 10. Seattle is among the areas hardest hit so far, with a cluster of deaths and dozens sickened. The number of cases in the U.S. was put at around 1,700 Friday, with about 50 deaths. But by some estimates, at least 14,000 people might be infected.
According to a statement obtained by The Associated Press from the Executive Office for Immigration Review, which manages the immigration court system, other courts will remain open where the virus has struck, including Boston, Los Angeles, New York City, San Francisco, Newark, New Jersey, and Sacramento, California. But “master calendar” dates for those who are not detained will be postponed. Those hearings can include dozens of people in a single courtroom.
“The agency continues to evaluate the dynamic situation nationwide and will make decisions for each location as more information becomes available,” according to the statement from EOIR, which is a division of the U.S. Department of Justice.
There are 68 immigration courts nationwide; the others will operate as scheduled but officials with EOIR said they are evaluating and will adjust as needed.
There have been no confirmed cases of COVID-19 within the immigration system, but it’s not clear how frequently tests are being performed, if at all.
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Associated Press Writer Cedar Attanasio contributed to this report from El Paso, Texas.
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I suppose some action is better than none.
But, let’s take a more rational and practical look at this. The regime’s own expert, Dr. Anthony Fauci, and other public health experts have been all over the media this weekend with a straightforward message: This is going to get worse before it gets better, so take advance precautions.
There is a “zero percent” chance that those appearing in Immigration Court have had access to coronavirus testing. Consequently, there is no way of knowing who or how many might be infected.
We also know that a significant number of those appearing in Immigration Court will be seniors or those with pre-existing conditions.
Therefore, closing down the non-detained dockets at all Immigration Courts right now shouldbe a “no brainer.” There are few, if any, genuine “emergencies” on an out of control “non-detained docket” of over one million cases with hearing dates stretching into 2024 and beyond in some locations.
By moving too slowly, EOIR virtually guarantees that by the time it finally gets around to the inevitable, many individuals and their families, fearing EOIR’s often mindless penchant for “in absentia hearings,” will not get the news in time. They will have already traveled and made arrangements to stay near Immigration Courts. Also, a disproportionate number of those appearing in Immigration Court must rely on public transportation, another health risk in addition to the disruption or curtailing of service in many localities.
Thus, EOIR’s inadequate response, notably released late on Friday when attention was focused elsewhere, combined with the regime’s total lack of credibility on all things immigration, is likely to make things worse.
There are all sorts of reasons why we need an independent Article I Immigration Court with competent, professional management focused on the public good. This is just the latest example of of how politicized, dysfunctional “courts” (that aren’t courts at all, as they are controlled by the prosecutor) hurt America and endanger all of us.
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired Judges
Round Table superstar Judge Joan Churchill reports:
The letter has been addressed to the Chairs and Ranking Members of both the Senate and HR Judiciary Committees, as well as to the HR Immigration Subcommittee, and to Senator Whitehouse of the Senate Judiciary Committee, who sent a letter last month to the AG, cosigned by several other members of the Senate Judiciary Committee, expressing concerns about due process at the Immigration Courts. There are 7 letters, attached below for your records.
Because all seven letters are similar in content, I’m linking and reprinting only the one to Chairwoman Zoe Lofgren of the House Subcommittee on Immigration & Citizenship.
1401 Longworth House Office Building Washington, D.C. 20515
Dear Representative Lofgren:
In your role as Chair of the House Committee on the Judiciary’s Subcommittee on Immigration and Citizenship, the National Association of Women Judges [NAWJ] writes in support of the creation of an independent Immigration Court. We respectfully call on Congress to establish an Article I Immigration Court system that is independent of the Department of Justice, or any other prosecutorial agency, in order to guarantee due process and a fair hearing with justice for all.
Currently, the Immigration Courts are housed in the U.S. Department of Justice’s Executive Office for Immigration Review [EOIR], which manages Immigration Courts at both the trial and appellate levels.
1
This structure presents an inherent conflict of interest. The Immigration Courts are adjudicatory bodies
tasked with providing due process hearings to respondents in removal proceedings. It is essential that its judges be neutral adjudicators who are not subject to the policy making chain of command of an executive agency, or to direction by a party to the cases before them.
NAWJ has been the leading voice of women jurists across the country for over forty years. Founded in 1979, our non-partisan membership includes over 1,000 judges, women and men, serving at all levels of the state and federal judiciary. Our membership includes judges on administrative, military, tribal, and other specialized courts, in addition to the regular state and federal courts. NAWJ has, since our founding, championed the advancement of women and minorities in the legal profession, the independence of the judiciary, and equal access to justice.
NAWJ’s support for an independent Immigration Court outside the Department of Justice is long standing. We adopted a resolution in support on April 16, 2002 stating that:
1 The appellate level of the Immigration Court system is known as the Board of Immigration Appeals or BIA.
Chair Zoe Lofgren Page Two
“The NAWJ supports an independent structure for the Immigration Courts (at both the trial and appellate levels) outside the Department of Justice, to assure fairness and equal access to justice, and to assure both the appearance and reality of impartiality.”
We followed up with another resolution adopted on October 18, 2008 stating:
“The National Association of Women Judges supports the enactment of federal immigration legislation that provides for full and fair administrative adjudication and review of deportation orders.”
We are pleased to hear that Congress is currently considering introduction of legislation on this important topic.
Due process by adjudicatory tribunals requires case by case adjudication in which a neutral decision maker, using his/her independent judgment, renders a decision based entirely on the record before him/her, the facts of the case, the submissions of the parties, and the governing law and regulations, without direction from above or consideration of outside (ex parte) influences. The current structure of the Immigration Courts, however, presents a systemic problem to neutral adjudication, as the structure allows:
(1) a supervisory role regarding the content of Immigration Judges’ rulings and
decisions, as a factor in their performance evaluations, and
(2) participation in the adjudicatory process by policy makers who are, in turn,
answerable to one of the parties, an executive agency of the Government.
We respectfully urge Congress to establish an independent Immigration Court system, under Article I of the United States Constitution, that would assure due process and judicial independence.
Thank you for consideration of our views. Sincerely,
The Honorable Bernadette D’Souza President
National Association of Women Judges
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For those of you who don’t already know my long-time friend and colleague Judge Joan Churchill, here is a little background.
Joan and I worked together as Attorney Advisors at the BIA in the early 1970s. She was the leader of the movement to start an employees’ union at the BIA, largely to insure fair and respectful treatment of our support staff. I was a “charter member,” and Joan served as our first President.
Later, after becoming one of the first women Immigration Judges at the “Legacy INS,” Joan served as the President of the Immigration Judges’ Association, the predecessor to the National Association of Immigration Judges. Among her many accomplishments, Joan successfully, and almost single handedly, argued the “Due Process case” against an INS proposal to take asylum cases out of Immigration Court and assign them exclusively to the newly created Asylum Office.
Later in our careers, Joan and I were “reunited” as colleagues at the Arlington Immigration Court. I was the “keynote speaker” at her retirement ceremony.
Following retirement, Joan hasn’t missed a beat. She served as President of the NAWJ and has actively and effectively pressed the case for Article I status as a member of the ABA National Conference on the Administrative Judiciary (of which I also am a member). Undoubtedly, Joan’s efforts were a key factor in getting such strong support for the Article I proposal from the ABA.
All of us who served as Immigration Judges and believe in the fundamental value of Due Process under law owe a debt of gratitude to Joan for her courageous, effective, pioneering work and her continued involvement in fulfilling the one-time “EOIR vision” of “through teamwork and innovation, being the world’s best administrative tribunals insuring fairness and due process for all.”
I might add, that it wasn’t always easy for Joan who has constantly demonstrated courage, an incredible work ethic, and “grace under fire.” But, that’s another story.
For now, I’m just thankful to be able to call Joan a friend and colleague and to continue to benefit from her wisdom, scholarship, and hard work in behalf of all of us in the Round Table of Former Immigration Judges.
NDPA NEWS: Even In Times Of Systemic Dysfunction, Fairness, Scholarship, Timeliness, Respect, & Teamwork Among Conscientious Immigration Judges, Fair-Minded ICE Assistant Chief Counsel, & Caring, Well-Prepared Advocates From the NDPA Continue to Save Lives of the Most Vulnerable Among Us! — “I don’t know how much longer I’ll be alive, but my children will always thank you,” Says Critically Ill Respondent to Arlington Immigration Judge Cynthia S. Torg, Who Had Just Granted Her Asylum!
Paulina Vera Professorial Lecturer in Law GW Law
NDPA stalwart (and former Arlington Immigration Court Intern) Professor Paulina Vera reports:
Good afternoon,
The above is what our client said to Immigration Judge Cynthia S. Torg after she granted her asylum claim this afternoon. A-A-‘s husband was politically involved in their home country of Venezuela, actively protesting against Nicolas Maduro. Because of his political involvement, both A-A- and their 11-year-old son were targeted by security forces and threatened with their lives should the political opposition continue. Additionally, A-A- has been diagnosed with stage 4 breast cancer and feared that she would not be able to get medical treatments in her home country due to a shortage of medical supplies there.
After a 15 minute hearing, the Immigration Judge (IJ) agreed to grant relief, which the trial attorney did not oppose. Both the IJ and trial attorney commended student-attorney, Halima Nur, JD ‘20, for her preparation. The IJ commented that because of the amount of documentation and the legal arguments presented, she was able to issue a decision quickly. In addition to their 11-year-old son, the couple has a 1.5 year old son, who was born in the United States. With this grant, the family will remain together in the U.S.
Please join me in congratulating Halima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for all their hard work on the case.
Best,
—-
Paulina Vera, Esq.
Acting Director, GW Law Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
Professorial Lecturer in Law
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These are the moments that everyone, judges, lawyers, interpreters, respondents, families, “live for” in Immigration Court. It’s what “kept me going” for 13 years on the trial bench. “Building America, one case at a time,” I used to say!
It’s the “polar opposite” of the “haste makes waste gimmicks” that unqualified politicos and administrators who don’t handle regular dockets have forced on judges and parties in a system where “docket control” has effectively been disconnected from its proper objectives of achieving due process and fundamental fairness.
Unfortunately, as Miller and the restrictionists seek to farther skew the regulations to screw asylum seekers, just results like this are likely to be even harder to achieve. That means that more and more asylum applicants will have to appeal to the Article III Courts, flawed as they have become, for any chance whatsoever of achieving a fair and unbiased outcome. I also discussed this unhappy likely future development in my post at the preceding link.
Thanks again to Judge Torg, the ICE Assistant Chief Counsel, Paulina, and GW Clinic Student AttorneysHalima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for being inspiring examples of how the Immigration Court system could work to achieve “due process and fundamental fairness with efficiency” under “different management” and an “independent structure” in the future.
I am excited to announce two recent Immigration Clinic wins!
1) On December 4th, Judge Deepali Nadkarni of the Arlington Immigration Court granted administrative closure in an Immigration Clinic case. The client, A-M-, and his wife, P-M-, are both represented by the Clinic in their respective cases. P-M- has pending U and T visa applications before USCIS, which are for victims of crimes and trafficking victims, respectively. P-M-‘s applications are based on horrific childhood sexual abuse she suffered at the hands of her stepfather. A-M- is a derivative on P-M-‘s application; however, A-M- is in removal proceedings and Immigration Judges do not have jurisdiction over these types of applications.
Judge Nadkarni commented on student attorney, Samuel Thomas, JD ’20, “very large” filing and issued a written decision a few weeks after a brief hearing. A-M- will now be able to stay in the U.S. with P-M- and their three small U.S. citizen children while they wait for a decision on the U and/or T visas.
Please join me in congratulating student-attorneys Samuel Thomas, who filed the motion for admin closure, and Madeleine Delurey, JD ’20, who filed the U and T visas for P-M-!
2) On December 23, 2019, I won a hearing for Cancellation of Removal for Certain Permanent Residents for our client, M-D-C-. M-D-C-, born in Chile, has been a permanent resident for over 29 years but was put into removal proceedings because of several criminal convictions in his record, the last of which took place 15 years ago. M-D-C- is currently on a heart transplant list and has very close relationships with his U.S. citizen wife and daughter. In fact, his daughter, C-D-C-, stated in her affidavit, “I owe a lot of the woman I have become and am to [my dad] and I love him with my whole heart.” Immigration Judge Wynne P. Kelly called the case “close” and said that he was “granting by a hair” after a three-hour hearing where both wife and daughter testified.
Please join me in congratulating Clinic alum, Chris Carr, JD ’17, and student-attorney, Amy Lattari, JD ’20, who both worked on the case with me. A special shout-out goes to Clinic alumna, Anam Rahman, JD ’12, who assisted in mooting M-D-C- and family.
Best,
—
Paulina Vera, Esq.
Professorial Lecturer in Law
Acting Director, Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
The George Washington University Law School
2000 G St, NW
Washington, DC 20052
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Many congrats Paulina, Samuel, Madeline, Chris, Amy, and Anam! Due Process is indeed a team effort!
As a number of us in the Round Table of Former Immigration Judges have observed, even under today‘s intentionally adverse conditions, justice is still achievable with 1) access to well-qualified counsel, and 2) fair, impartial, and scholarly Immigration Judges with the necessary legal expertise.
Unfortunately, the Trump Regime, in its never-ending “War on Due Process,” has worked tirelessly to make the foregoing conditions the exception rather than the rule.
Hats off once again to Judge Deepali Nadkarni who resigned her Assistant Chief Judge position to go “down in the trenches” of Arlington and bring some much-needed fairness, impartiality, scholarship, independence, and courage to a system badly in need of all of those qualities!
This also shows what a difference a courageous Circuit Court decision standing up against the scofflaw nonsense of Jeff Sessions and Billy Barr, rather than “going along to get along,” can make. One factor greatly and unnecessarily aggravating the 1.3 million + Immigration Court backlog is the regime’s mindlessly filling the docket with re-calendared and other “low priority/high equity” cases that should be closed and remain closed as a proper exercise of prosecutorial discretion. Sessions’s Castro-Tum decision, soundly rejected by the 4th Circuit inZuniga Romero v. Barr, is one a number unconscionable and unethical abuses of authority by Attorney Generals Sessions and Barr.
Angelina Jolie Actress, Writer, Human Rights Advocate
Angelina Jolie writes in Time:
Angelina Jolie: The Crisis We Face at the Border Does Not Require Us to Choose Between Security and Humanity
Angelina Jolie
Jolie, a TIME contributing editor, is an Academy Award–winning actor and Special Envoy of the U.N. High Commissioner for Refugees
We Americans have been confronted by devastating images from our southern border and increasingly polarized views on how to address this untenable situation.
At times I wonder if we are retreating from the ideal of America as a country founded by and for brave, bold, freedom-seeking rebels, and becoming instead inward-looking and fearful.
I suspect many of us will refuse to retreat. We grew up in this beautiful, free country, in all its diversity. We know nothing good ever came of fear, and that our own history — including the shameful mistreatment of Native Americans — should incline us to humility and respect when considering the question of migration.
I’m not a lawyer, an asylum seeker, or one of the people working every day to protect our borders and run our immigration system. But I work with the UN Refugee Agency, which operates in 134 countries to protect and support many of the over 70 million people displaced by conflict and persecution.
We in America are starting to experience on our borders some of the pressures other nations have faced for years: countries like Turkey, Uganda and Sudan, which host 6 million refugees between them. Or Lebanon, where every sixth person is a refugee. Or Colombia, which is hosting over 1 million Venezuelans in a country slightly less than twice the size of Texas. There are lessons — and warnings — we can derive from the global refugee situation.
The first is that this is about more than just one border. Unless we address the factors forcing people to move, from war to economic desperation to climate change, we will face ever-growing human displacement. If you don’t address these problems at their source, you will always have people at your borders. People fleeing out of desperation will brave any obstacle in front of them.
Second, countries producing the migration or refugee flow have the greatest responsibility to take measures to protect their citizens and address the insecurity, corruption and violence causing people to flee. But assisting them with that task is in our interest. Former senior military figures urge the restoration of U.S. aid to Honduras, Guatemala and El Salvador, arguing that helping to build the rule of law, respect for human rights and stability is the only way to create alternatives to migration. The UN Refugee Agency is calling for an urgent summit of governments in the Americas to address the displacement crisis. These seem logical, overdue steps. Our development assistance to other countries is not a bargaining chip, it is an investment in our long-term security. Showing leadership and working with other countries is a measure of strength, not a sign of weakness.
Third, we have a vital interest in upholding international laws and standards on asylum and protection. It is troubling to see our country backing away from these, while expecting other countries, who are hosting millions of refugees and asylum seekers, to adhere to a stricter code. If we go down this path, we risk a race to the bottom and far greater chaos. An international rules-based system brings order. Breaking international standards only encourages more rule-breaking.
Fourth, the legal experts I meet suggest there are ways of making the immigration system function much more effectively, fairly and humanely. For instance, by resourcing the immigration courts to address the enormous backlog of cases built up over years. They argue this would help enable prompt determination of who legally qualifies for protection and who does not, and at the same time disincentivize anyone inclined to misuse the asylum system for economic or other reasons. The American Bar Association and other legal scholars and associations are calling for immigration court to be made independent and free from external influence, so that cases can be fairly, efficiently and impartially decided under the law.
There are also proven models of working with legal firms to provide pro-bono legal assistance to unaccompanied children in the immigration system without increasing the burden on the U.S. taxpayer. Expanding these kinds of initiative would help to ensure that vulnerable children don’t have to represent themselves in court, and improve the effectiveness, fairness and speed of immigration proceedings. Approximately 65% of children in the U.S. immigration system still face court without an attorney.
We all want our borders to be secure and our laws to be upheld, but it is not true that we face a choice between security and our humanity: between sealing our country off and turning our back to the world on the one hand, or having open borders on the other. The best way of protecting our security is by upholding our values and addressing the roots of this crisis. We can be fearless, generous and open-minded in seeking solutions.
TIME Ideas hosts the world’s leading voices, providing commentary on events in news, society, and culture. We welcome outside contributions. Opinions expressed do not necessarily reflect the views of TIME editors.
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Wow! Great thoughts on how caring people might actually help to constructively address human migration issues rather than cruelly making them worse through “malicious incompetence.”
It’s painfully clear that we have the wrong “celebrity” leading our nation. But, Jolie wasn’t on the ballot (not will she be). Nevertheless, in a saner and more law-abiding Government, there should be a place for ideas and leadership from Jolie and others like her.
HISTORICAL NOTE: If my memory serves me correctly, Angelina Jolie once appeared before my esteemed retired colleague U.S. Immigration Judge M. Christopher Grant, as an expert witness in an asylum case before the Arlington Immigration Court.
I am pleased to report that at tonight’s GW Latinx Excellence Awards ceremony – https://mssc.gwu.edu/latinx-leader-awards – our friend, colleague, and alum Professor Paulina Vera, pnvera@law.gwu.edu, won the Alma Award. Please see below. The nominees for this award are charismatic individuals who continuously make a difference and lead by example, not only within the Latinx community, but also throughout our broader community. These individuals, often unsung heroes of our community, inspire others to make a difference and assume their leadership potential.
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Paulina is a former Legal Intern at the Arlington Immigration Court. So proud of her and her many achievements. Paulina is totally brilliant and could have done anything; she has chosen to devote this part of her career to helping humanity, inspiring aspiring lawyers to “be the best that they can be,” and serving as a role model for others.
Thanks, Paulina, for all you do. You are truly inspiring others and bringing out the best in America!
The panel granted in part a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Cameroon, and remanded.
The panel rejected petitioner’s contention that she was deprived of her due process right to a full and fair hearing based on the denial of her right to retained counsel and an unbiased fact finder. The panel held that the IJ in this case provided petitioner reasonable time to locate an attorney, where the IJ provided several continuances so she could do so, warned her repeatedly that he would not grant further continuances, and attempted to call her attorney when he failed to appear on the day of her merits hearing. The panel also held that although the IJ was rude and harsh with petitioner, petitioner failed to establish that the IJ’s conduct prejudiced her, where the IJ held a complete hearing and made a thorough decision that fully examined the underlying factual matters, and any potential prejudice caused by the IJ’s questionable adverse credibility determination was cured by the Board’s subsequent decision assuming the credibility of petitioner’s testimony in full.
The panel held that the Board committed three legal errors in its application of the firm resettlement bar, which precludes asylum relief if an applicant was firmly resettled in another country prior to arriving in the United States. First, the panel held that the Board erred by failing to consider whether the conditions of petitioner’s offer of resettlement in South Africa were too restricted for her to be firmly resettled. Second, the panel held that the Board erred by applying the firm resettlement rule not as a mandatory bar to petitioner’s asylum claim, but instead as a limitation on the evidence the Board considered in support of her claim for relief from removal to Cameroon, thus causing the Board to improperly ignore evidence of the abuse petitioner suffered in Cameroon before fleeing to South Africa, as well as evidence of the nature of her relationship with her abuser. Third, the panel held that the Board erred by applying the firm resettlement bar to petitioner’s withholding of removal claim, which is not subject to the firm resettlement bar.
Turning to petitioner’s CAT claim, the panel held that substantial evidence did not support the Board’s determination that petitioner could avoid future harm through internal relocation in Cameroon.
The panel remanded petitioner’s asylum, withholding, and CAT claims for further proceedings consistent with its opinion.
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
PANEL: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,* District Judge.
* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation.
OPINION BY: Judge Gould
KEY QUOTE:
Petitioner Delphine Arrey petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision dismissing her appeal of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We conclude that the IJ did not deny Arrey her due process rights to counsel and an unbiased factfinder. As to Arrey’s asylum and withholding of removal claims, we conclude that the Board erred as a matter of law in its analysis and application of the “firm resettlement” rule. As to Arrey’s claim for relief under CAT, we conclude that substantial evidence does not support the Board’s determination that Arrey could safely relocate in another area of Cameroon. We grant the petition in part and remand for reconsideration of Arrey’s claims consistent with our opinion.
Even the 9th Circuit “blew” the fundamental issue here: No matter how annoying the respondent’s conduct might have been, there was no way to conduct a fair hearing in a case of this complexity without counsel present.
From this recitation of facts, it’s pretty obvious that the respondent had no idea what “firm resettlement” was or how the process for proving or disproving it worked. Going ahead with the hearing created a miscarriage of justice that simply wasted time by going all the way the 9th Circuit and then being returned for competent judicial adjudication applying the correct standards. Haste makes waste.
And the overwhelming backlog that obviously was on the judge’s mind here was not created by this respondent and her attorney; no, it primarily results from “aimless docket reshuffling,” poor administration, Congressional neglect, and “designed to fail policies” by politicos in the DOJ (under the improper and unethical political influence of the DHS) which went into “overdrive” under Sessions.
Getting to the merits, beyond apparently correctly setting forth the respondent’s name and “A number,” the Immigration Judge and the BIA got largely everything else in this case wrong! The basic errors range from a “clearly erroneous” adverse credibility ruling, to a legally incorrect standard for “firm resettlement,” to an idiotically nonsensical ruling that “threats and one attempted assault of rape” did not “rise to the level of persecution” (cases involving these facts were routinely granted by the BIA during my tenure and, to my knowledge, were uniformly granted by IJs in Arlington; indeed, I can’t even imagine an ICE Assistant Chief Counsel during my tenure in Arlington arguing the contrary), to wrong evidentiary determinations, to another completely nonsensical finding on internal relocation.
In other words, this was a “rubber stamp” by BIA “judges” of a staff attorney’s writeup with canned “any reason to deny” language. It was not a fair and impartial adjudication by an “expert” group of appellate judges.
Far from it. If a student had turned this in as an exam answer to a hypothetical case on my Georgetown Law final exam, it would have received “zero credit.” So, how is it “OK” to have a system where individuals in what are supposed to be senior judicial positions, requiring great expertise in immigration, asylum, and human rights law, perform in a manner that would have been deemed unacceptable for L2s and L3s?
It isn’t; and it’s up to the Article III Courts and Congress to get some backbone and some integrity and put an end to this travesty. Yeah, this is “only one case.” But, it involves a human life. Cameroon is a horrible country; credible Cameroonian asylum cases were routinely granted in the Arlington Immigration Court, normally without appeal by ICE.
And for every case where a respondent is lucky enough to get a “Court of Appeals intervention,” dozens of individuals, many without lawyers or the faintest knowledge of what’s happening, are “railroaded” through this fundamentally unfair and constitutionally defective system. This, rather than the bogus wall, or an influx of desperate refugee families seeking asylum, is our true “national emergency” involving immigration: The disdain by our current Administration for the rule of law, human rights, judicial quality, simple human decency, and Due Process of Law under our Constitution!
Congrats to Attorney Ron Richey, an “Arlington Immigration Court regular,” who appeared before me many times, for fighting for due process and justice in another jurisdiction. You are an inspiration to all of us in the “New Due Process Army!”
Kate Morrissey writes in the San Diego Union-Tribune:
Constantin Bakala and his family have survived kidnapping, torture, rape, poison and a shipwreck.
Now, faced with the complexities of the U.S. immigration system, they may be on the verge of defeat.
Bakala, 48, and his family fled their home in the Democratic Republic of Congo in late 2016 after they were targeted for Bakala’s participation in an opposition party that promoted democracy in the country, according to his wife.
After traveling through more than 10 countries, the family arrived at the San Ysidro Port of Entry in November 2017. Bakala was separated from his wife and seven children and sent to an immigration detention center in Georgia while they were released to live in the San Diego area, a common practice at the time. He hasn’t seen them since.
Because they were separated physically, their cases were also handled separately in immigration court. Since the federal government prioritizes detained cases, Bakala’s finished before the family’s even began, according to their attorney.
Unable to find an attorney to represent him at the detention center in rural Georgia and with little money to even pay for phone calls to the outside world to try to get help, Bakala faced by himself an immigration court known for being tough on asylum seekers. Judge Michael Baird, who heard his case, granted 11 of the 152 asylum cases that he decided between fiscal 2013 and 2018, records show.
Bakala lost.
He tried to appeal the case by himself and was denied that as well, according to court records. Now the family, with the help of a San Diego church, has found an attorney to help him, but it may be too late.
He is convinced that if he returns to the Democratic Republic of Congo, he will be murdered by his own government.
Bakala’s party membership card shows he was part of the Rassemblement des Congolais Démocrates et Nationalistes, or RCDN, which opposed former president Joseph Kabila’s maneuvers to stay in power past his term limit. When Bakala wasn’t at his job at the Ministry of Health, he worked with the party’s youth and advised them on how to demonstrate peacefully against the ruling party, his wife Annie Bwetu Kapongo said.
Bwetu Kapongo tells their story slowly, haltingly, sometimes with painful detail and sometimes in circles, a symptom of the trauma she carries from what happened.
She remembers when her husband first told her about getting threatened, and she remembers the day he went missing in 2016.
When she went to the police to ask for help finding him, she was locked in a room that reeked of urine. Later, three policemen came in, beat her and raped her. She tried to stop them and pointed out that she was pregnant.
The men didn’t care, she said. She ended up losing the baby.
When she was eventually able to return home, her husband was still missing. The two stores she owned, one that sold fish and one that sold cakes and juice, were broken into and robbed by people looking for her husband, who had by this point escaped where he had been imprisoned and tortured, according to his attorney.
One night, Bwetu Kapongo woke up to the family dog’s aggressive barking before hearing it abruptly stop. They found the dog dead the next day.
Another night, she and the children got sick. Their heads were spinning, and they were vomiting. Eventually, they found a tool someone had used to release poison into the house, she said.
Finally, one night she heard a knock on her window. It was her husband.
Aided by people he’d brought to help the family, they scooped the children out of their beds while they were sleeping and fled in a boat down a river to the Republic of Congo, where the people helping them paid for their hotel, Bwetu Kapongo said.
They waited a couple of months there until they had travel documents to get to Brazil and left in early 2017 to begin a grueling journey to the U.S. border.
“We came because America respects the law, and they know how to protect people,” Bwetu Kapongo said through a translator.
In each of the countries they passed through, officials told them that they could not stay, she added. They were sent from Panama back to Colombia when they tried to get across the border by boat and ended up having to make the grueling 6- to 7-day walk through the jungle to Costa Rica.
In Costa Rica, they found a boat that would take them to Nicaragua.
After they’d been on it for about 45 minutes, Bwetu Kapongo heard shots fired at them. She told her children to lay down. Then, the boat broke, she said, and it began to sink.All of a sudden, her youngest child Joseph, who is now 5, was no longer in her arms.
She started to drown.
“Is this a nightmare? Is this real? Is this happening?” she recalled asking the darkness that surrounded her.
She felt other bodies in the water, hands pushing her head down as they tried desperately to reach the surface. She felt someone clutch her neck. It was David, her 12-year-old son.
When a rescue boat pulled her to safety, she found her 17-year-old daughter Marie Louise. Bwetu Kapongo began to pray, crying out the names of her five other children and asking God to find them. Her husband was soon rescued from the water and prayed with her.
When rescuers noticed bubbles moving in the water, they found Joseph along with 8-year-old Moses and 10-year-old Augustine clinging to a rope and pulled them to safety.
Emmanuel, her 15-year-old son, had been carried further away into the water with 14-year-old Daniel. They found a life preserver that had been thrown into the water and clung to it, bringing with them two girls from another family who were also nearly drowning.
When Emmanuel used the last of his strength to cry out, rescuers found them, Bwetu Kapongo said. Two people who had been on the boat died, one adult and one child.
Though the family survived, all of the documents and photos that could have been used as evidence were lost in the water.
They would have to journey by boat two more times between Costa Rica and Nicaragua before successfully making it the rest of the way up to the U.S. border.
Bwetu Kapongo said she expected to receive “protection and respect” when they arrived. Instead, her husband was quickly taken away.
It is only when she reaches this point in the story that she begins to cry.
She wouldn’t hear from him for about a month. He told her that he didn’t know how to find her, that it took that long for officials to give him information about where she was.
The family’s attorney Julie Hartlé said the family’s story is “horrific but not unusual.” Other attorneys she knows have had similar cases.
“This family meets every criteria. They were persecuted for being democracy activists, kidnapped and tortured by their own government,” Hartlé said. “It meets the exact definition of asylum for political persecution. It should’ve been straightforward. They were able to use the detention system against them.”
Bakala had to fill out his asylum application in English, a language he does not speak well. Though he told the judge verbally about three times he was taken by police, how he was beaten, interrogated and held without food, he only put information about one of the incidents in his application.
“That sounds like a pretty bad event,” the judge said in his ruling of one of the incidents Bakala described. “Unfortunately, it is never mentioned anywhere in the respondent’s application for asylum.”
The evidence that Bakala was able to gather and present — including a notice from his political party about his disappearance, another notice that the ruling party was looking for him, his voter ID card and party membership card — was not translated into English, so the judge said he couldn’t consider it, according to court records. He found Bakala’s story not credible.
The Executive Office for Immigration Review said it does not comment on judges’ decisions.
Neither Immigration and Customs Enforcement nor Customs and Border Protection were able to respond to request for comment in time for publication.
As immigration officials prepared to deport Bakala, attorneys filed emergency motions to temporarily keep him in the U.S. to try to reopen his case with new evidence. Last week, the 11th Circuit granted him a stay until Friday.
In the meantime, members of the church helping the family here in San Diego are planning a protest outside of the federal building at noon on Thursday in support of Bakala.
Bwetu Kapongo said the most important thing for her is protection for her children.
“He sacrificed his life to protect his kids,” she said in French. “If we hadn’t done what we did, they would already be dead.”
Beyond that, she wishes for her husband’s return. She tries to hide her exhaustion and her tears from her children, but she doesn’t think she can raise them alone.
“After the mountain I went through, I’ve got no more strength,” she said.
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So, how might a real judge, one committed to guaranteeing fundamental fairness, due process, and properly applying the generous dictates of U.S. asylum law have approached this case?
First, Bakala comes from a country, the Democratic Republic of Congo (“DRC”) which is one of the most repressive regimes in the world, where persecution is rampant. For example, the DRC received a score of 17 on a scale of 100 in the latest Freedom House freedom rankings.
Here’s a quote from the most recent U.S. State Department Country Report summarizing the daily horrors of life in the DRC:
The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.
Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.
Therefore, knowing that Bakala comes from a notorious “refugee producing country,” the Immigration Judge should have insisted as a matter of due process and fundamental fairness that the case be continued until the respondent could get the assistance of a competent lawyer to fully and fairly present a case for saving his life.
Asylum law has been made intentionally and unnecessarily complicated by a politicized system run with a strong enforcement bias; statistics, as well as experience, show that unrepresented individuals have virtually no realistic chance of success, particularly in a system run by an Administration clearly prejudiced against them. Human lives become mere “case completions.”
Second, Bakala’s wife also appears to have a strong asylum claim in her own right. If granted, he could also have been protected as a derivative asylee under his wife’s application. Therefore, unless ICE were basically willing to stipulate to an asylum grant, proceeding with the cases separately was presumptively unfair. A judge committed to fairness, would have “pushed” the ICE Counsel on why this family’s cases were not being heard together.
Third, to justify an adverse credibility finding under the statute and BIA precedents, the judge’s ruling must demonstrate significant discrepancies or omissions, provide cogent reasoning, and carefully consider and give reasons for not accepting the respondent’s explanations for any problems. This judge’s ruling appears to have “flunked” all of those tests. The idea that a detained unrepresented individual’s omission of an event from the asylum application is a cogent basis for finding him not credible is facially absurd. That’s particularly true where the respondent is not a native English speaker and is held in detention where his ability to prepare, or, indeed, to even understand what is required for a successful asylum application, is intentionally impaired.
Moreover, a simple reference to the most current State Department Country Report (quoted above) would have shown the judge that the respondent’s testimony was highly plausible in light of known country conditions. Indeed, persecution, torture, and abuse are daily occurrences in the DRC.
Additionally, the judge violated due process by requiring a detained individual to get translations of key corroborating documents. It’s simply not possible in most cases. How is a detained unrepresented individual going to find a qualified foreign language translator in the Stewart prison? A judge doing his job fairly would have asked the respondent to summarize the documents and accepted a “proffer;” or he could have had the documents read into the record by the interpreter.
For the purpose of a detained adjudication, I would have assumed that the documents were what the respondent said they were and acted accordingly. If the DHS wanted to challenge the decision, they could have the documents translated. Just one of many problems in purporting to conduct “due process hearings:” in place where due process often can’t really be achieved.
Then, the “rubber stamp” BIA (a/k/a the “Falls Church Adjudication Center”) also “tanked” by not applying its own precedents which should have resulted in a finding that the Immigration Judge’s specious reasoning was “clearly erroneous.”
I heard a number of asylum cases from the DRC during my time on the bench in Arlington. I doubt that I denied any except for individuals who were aggravated felons, engaged in persecution of others, or had provided material support to a terrorist organization. Even those who failed to establish asylum eligibility often had valid claims for protection under the Convention Against Torture, given the prevalence of government sponsored or endorsed torture in the DRC. Most DRC asylum cases in Arlington were well-represented, well-documented, and either largely unopposed or not appealed by ICE.
Even without a lawyer, it appears that Bakala’s testimony was credible under the circumstances and that he suffered harm that should have warranted a grant of asylum on account of political opinion based on known country conditions. At one time in Arlington, a case like this with representation probably could have been granted largely by stipulation, with brief testimony, on a “short docket.”
That’s how cases can “move” on the Immigration Court’s crowded dockets without compromising due process or fundamental fairness. Instead, this Administration encourages a biased “haste makes waste” approach, issues statements of strong prejudgment against asylum seekers and their attorneys, motivates judges to cut corners, and enables judges to look for “any reason” to deny asylum and crank out final orders of removal. It’s a “cavalcade of worst practices!”
While some judges courageously resist and insist on “doing the right thing,” others choose or feel compelled to “go along to get along” with the Administration’s unethical (and incompetent) administration of these so-called “courts.” Indeed, today’s Immigration Judges are not even properly trained on how to correctly adjudicate and grant asylum under the generous standards mandated by the law, the Supreme Court, and even the BIA’s (seldom followed) precedent supposedly implementing generous standards following the Supreme Court’s admonishment. It’s an exercise in extreme intellectual dishonesty.
Allowing serious, “life or death” cases to be tried in places like Stewart, notorious for being the home of unsympathetic judges and an inherently coercive atmosphere, intentionally located in and out-of-the-way place where it is hard for attorneys to participate, is a stain on America.
The DOJ has abandoned any semblance of running its “wholly owned courts” in a fair and constitutional manner. Congress, ultimately responsible for creating and countenancing this mess, has long abdicated its duty to establish an independent system that complies with Due Process.
Article III Judges also have been largely complicit in allowing this pathetic imitation of a “court” system to continue operating in a fundamentally unfair and unreasonable manner and spewing forth skewed, unjust, often unlawful, and sometimes deadly results. It’s a national disgrace!
Sadly, the individuals being abused by the Immigration Court system are some of the weakest and most vulnerable among us. That’s what allows such systematic injustice to operate “largely below the radar screen.” However, the individuals who are participating in and enabling such outrageous contempt for the rule of law and human dignity, and thereby violating their oaths of Federal office, will not escape the judgment of history.
Fixing this unfair and intentionally broken system is well within our power as a country. It could be done for much less than $5.7 billion. Put an end to the “New American Gulag” and the “theater of the absurd” masquerading as a “court” that operates within its bowels!
🤡”CLOWN COURT REPORT” — “ADR [“Aimless Docket Reshuffling”] is the watchword” — Yeah, it’s hard times under the Big Top (particularly if you’re in search of elusive and officially maligned Constitutionally-required Due Process!)
An inherently reliable, highly anonymous source deep within America’s most dysfunctional court system tells Courtside: “ADR is still the watchword. No telling how many cases are off calendar at this point.”
Origins of the term “Clown Court” 🤡 (it actually preceded the Trump Administration):
Once upon a time, when I was an Immigration Judge, I was assigned to do a 100-case Master Calendar by televideo to a court in another state. Slight problem: All of the files were in a third place. Another hitch: All of the ICE Assistant Chief Counsel’s files had been sent to the wrong office. In other words, no “government files” of any kind for 100 cases. Adding to the degree of difficulty: EOIR sent me a Spanish interpreter; but almost everyone on the calendar actually spoke French or a West African language (something clearly shown in the EOIR “computer system,” such as it was). I “finished” with this circus about 5 pm. But, none of my colleagues was around. They were in the conference room. I burst through the door and yelled “This is ——————— Clown Court.” Unfortunately, the then Chief Immigration Judge was making one of his rather infrequent visits to our Court. Needless to say, he wasn’t amused by my sudden outburst of unvarnished truth. Fortunately, he happened to be a long-time friend who owed his original hiring at the “Legacy INS” as well as several “up-ladder career moves” largely to me when I was the Deputy General Counsel/Acting General Counsel. So, I survived to “perform under the big top” another day. And remember, this was back when the Immigration Court was actually better managed by comparison with today’s intentional “man-made disaster.” Then, it was “quirky,” but not necessarily “beyond the pale.” It’s been straight downhill since. Every time we think it’s hit bottom, DOJ and EOIR management seem to dig a little deeper.
Here are two redacted “post-Matter of A-B-” decisions from U.S.Immigration Judges correctly interpreting the law to grant relief to refugee women from Central America who have been victims of gender-based persecution in the form of domestic violence.
Assistant Chief U.S. Immigration Judge Deepali Nadkarni of the Arlington Immigration Court granted this case based on a PSG of “women in Honduras.”
Compare the outstanding organization, methodical scholarly analysis, proper use of country conditions, and logical conclusions of these decisions written by fair and impartial judges with the pages of legal gobbledygook and anti-asylum screed set forth by xenophobic politico Jeff Sessions in Matter of A-B-, 17 I&N Dec. 316 (BIA 2018).
In a properly functioning system, decisions like these would be the published precedents, not the misleading, inaccurate, and confusing decision of the Attorney General which has already been firmly rejected by U.S District Judge Sullivan in Grace v. Whitaker. Decisions like these two, if used as models, could actually help speed along the grant process in both the Asylum Office and the Immigration Courts, thus expediting justice without sacrificing Due Process.
As it is, these decisions should be helpful to counsel presenting cases of abused women in Immigration Court.
Assistant Chief Judge Nadkarni and Judge Hayward show what the U.S. Immigration Court system could be if the improper political meddling and enforcement bias were removed and the Immigration Court were allowed to operate independently. Unfortunately, there are some Immigration Judges out there who are intent not on judicial excellence, but on using Matter of A-B- to railroad refugees through the system into the “deportation mill” without Due Process. That’s why we need a diverse and independent appellate body that can reinforce “best practices” while keeping those judges who aren’t fairly and correctly applying asylum law in line and, perhaps, encouraging them to find other careers.
Congratulations to both Assistant Chief Judge Nadkarni and Judge Hayward for having the courage to stand tall for the rule of law, Due Process, and fundamental fairness for the most vulnerable in our society — the actual (if now largely discarded) mission of the U.S. Immigration Courts. I should know, since I helped draft that now-forgotten “vision statement.”
Also, many congrats to counsel Mark Stevens (who appeared before me many times in Arlington) and Kelly Engel Wells for their outstanding work and to the unnamed but still critically important ICE Assistant Chief Counsel who appear to have done an outstanding job of presenting these cases.
NOTE: Judge Miriam Hayward recently retired and has joined “Our Gang” now numbering at least 32 retired U.S. Immigration Judges and Appellate Immigration Judges.
Cortez-Mendez v. Whitaker, 4th Cir., 01-07-19, Published
PANEL: WILKINSON and AGEE, Circuit Judges, and James P. JONES, United States District Judge for the Western District of Virginia, sitting by designation.
OPINION BY: Judge Agee
KEY QUOTE:
Cortez-Mendez disputes the IJ and BIA’s conclusion that he was threatened because of “general criminal gang activity” in his hometown. A.R. 3; see A.R. 65–66. He asserts the gangs persecuted him because his father’s disabilities caused Cortez-Mendez to be poor, “vulnerable,” and “an easy mark [without] the backing and advice of a father.” A.R. 148. Cortez-Mendez argues his persecution was pointedly discriminatory because he “knew many of his persecutors[ ] and had heard them ridicule his father and the rest of his family.” Opening Br. 11; see A.R. 56. We find his arguments unpersuasive.
Cortez-Mendez presented no direct or circumstantial evidence that the gangs harassed him “on account of” his father’s disabilities as opposed to his own rejection of gang membership. See 8 U.S.C. § 1101(a)(42). He provided no direct evidence that the gangs intimidated him because he was his father’s son. His only evidence of linkage to his father is that non-gang neighborhood harassers had “made fun of” him because of Marcial Cortez’s disabilities, A.R. 146–47, and the gang members who called his mother in 2005 “remembered [him] as a son of a mute and dumb person,” A.R. 176. Even if either of these groups of taunters knew about Marcial Cortez’s disabilities, it does not follow that they intimidated Cortez-Mendez because of his relation to his disabled father.See Hernandez-Avalos, 784 F.3d at 950 n.7 (“[N]ot . . . every threat that references a family member is made on account of family ties.”).
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Indeed, the circumstantial evidence in the record reflects a different reason for Cortez-Mendez’s harassment: he rejected the gangs’ recruitment efforts. Cortez-Mendez testified that he feared the gangs would harm him “if [he] did not become a gangster” or “if [he] did not [agree] to become part of the gangs.” A.R. 175. Substantial evidence supports the IJ’s and BIA’s conclusions that the “neighborhood gangs observed the family’s poverty and concluded they could easily recruit” Cortez-Mendez, A.R. 56, and that it was after Cortez-Mendez refused to join the gangs that they threatened him, A.R. 3–4, 66. Cortez-Mendez even admitted that he left El Salvador because had rejected gang membership: “they kept asking me to join them and be a member of the gang, and that is why I fled.” A.R. 140. At most, Cortez-Mendez demonstrated that the gangs may have targeted him because of his poverty but only threatened him because he would not join their ranks. Flight from gang recruitment is not a protected ground under the INA. See Zelaya v. Holder, 668 F.3d 159, 166–67 (4th Cir. 2012); Matter of S-E-G-, 24 I. & N. Dec. 579, 589 (B.I.A. 2008). Consequently, Cortez-Mendez’s own testimony of his circumstantial fears defeats his argument that a protected ground like his relation to his disabled father was “at least one central reason for” his treatment in El Salvador.Crespin-Valladares, 632 F.3d at 127.
Furthermore, while it is not dispositive, Cortez-Mendez testified that his father and other family members still live in El Salvador and have suffered no harm. Our decision relies on whether Cortez-Mendez—and not some other person—was persecuted because of his relation to his father, see Hernandez-Avalos, 784 F.3d at 950; Crespin-Valladares, 632 F.3d at 127 n.6, but a fact we may consider with the rest is whether other family
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members have been persecuted because of their identical family ties, see Mirisawo, 599 F.3d at 398 (“The fact that family members whose political opinions Mirisawo fears will be imputed to her have not themselves faced harm fatally undermines her claim that she will suffer persecution because of her association with them.”). The evidence in the record that Cortez-Mendez’s family—including his disabled father—remains unharmed suggests that Cortez-Mendez’s relation to his father is not the reason for the persecution he fears.
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Primarily a failure of proof. Had there been evidence that: (1) the gang’s threats were because of the respondent’s father’s disabled status; (2) his father or other members of the family had been harmed or threatened; or (3) gangs in El Salvador had a particular antipathy toward disabled individuals and their families, the result could have been different.
Still, the fact-based nature of this outcome, and the Fourth Circuit’s carefully articulated analysis, give lie to Session’s attempt to create a “de facto presumption” against the granting of asylum cases based on domestic violence and/or harm from gangs. Each case must be separately analyzed on its facts. That will take considerable time and careful analyses by U.S. immigration Judges and the BIA — the polar opposite of Sessions’s prejudicial “judicial quotas” and his urging that Immigration Judges cut corners by prejudging gang-related cases against respondents as he suggested in Matter of A-B-.
With the backlog growing exponentially by the day as a result of Trump’s mindless shutdown, the Immigration Courts can’t possibly carry out their mission consistently with Due Process as long as they are controlled by politicos like Sessions, Whitaker, and Trump.
HISTORICAL NOTE: Both Miriswano and Crespin-Valladares, cited by the Fourth Circuit cases were my cases when I was at the Arlington Immigration Court.
Immigration Court Operating Status During Lapse in Appropriations
During the current lapse in appropriations, the following operating status is in place for EOIR:
Detained docket cases will proceed as scheduled.
Non-detained docket cases will be reset for a later date after funding resumes. Immigration courts will issue an updated notice of hearing to respondents or, if applicable, respondents’ representatives of record for each reset hearing.
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The above “official notice” from EOIR is a striking reminder that we have idiots running our Government, starting at the very top. These are folks who can invent a “national emergency” over a few thousand desperate migrants waiting for routine legal processing at our border. But, the same folks can’t come up with a rationale for keeping the vast bulk of the nation’s already collapsing Immigration Courts operating. Since the system isn’t automated either, the result will be more backlog and more of the “Aimless Docket Reshuffling” for which DOJ and EOIR are infamous.
Notably, most of DHS appears to be “up and running” even without appropriations.
In my thirteen years a the Arlington Immigration Court, I was usually “nonessential,” but occasionally “essential” during various shutdowns, depending on the whims of the politicos at DOJ and the EOIR front office. So, the problem pre-existed this Administration. Indeed, mindless shutdowns over the years helped contribute mightily to both backlog and morale problems at the U.S. Immigration Courts. There’s no better way to “demotivate” people than to tell them that their work is “non-essential.”
During the 2013 “shutdown,” then D.C. Mayor Vincent Gray, never known as the most creative politician to hold office, simply declared every D.C. employee “essential” — and he got away with it.
The next time that this or any other Administration, or Congress, tries to blame their bogus, self-created Immigration Court “backlog” on migrants, their lawyers, Immigration Judges, or EOIR line court employees, just “call B.S.” Know and remember who’s causing the real problems in this beleaguered, politicized, and totally mismanaged mess of a “court” system (a/k/a “Clown Court”)!
Sophia writes in an article that was published at LexisNexis:
Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution – Sophia Genovese
Sophia Genovese, Dec. 10, 2018 – “Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”
As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.
The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.
As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.
It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.
As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.
Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.
Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.”
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Sophia is absolutely correct!
Like Sessions, Whitaker combines a White Nationalist agenda with some poor intellectual and lawyering skills. Not surprising, because lawyers advancing a racially biased restrictionist agenda are obviously driven by something outside, and usually not even very closely related to, the law and conventional human values.
Their arrogant and outrageous disregard of the law and facts provides a good opportunity for asking Article III Courts and Congress to finally adopt and enforce a legally appropriate, generous, humanitarian approach to asylum law as was directed by the Supremes back in INS v. Cardoza-Fonseca. Notwithstanding some meaningful advances over the three decades since that decision, the “promise of Cardoza” for U.S. asylum law has never been fully recognized.
And this Administration is hell-bent on rolling back even the modest advances that had been painstakingly made. Now is the time to make asylum law work as it was supposed to! Human lives and our integrity as a nation of laws and values depend upon it!
Join the New Due Process Army and fight to hold the “Department of Injustice” and its biased and deviant officials accountable to the law and to history for their naked racism, extreme intellectual dishonesty, failure to uphold the rule of law, and cowardly contempt for human life! Yes, it’s annoying. Yes, it’s hard work! But, in the end it will be worth it to know that you did something worthwhile in your life. And there are few things more worthwhile than protecting the rights and saving the lives of the most helpless, exploited, and vulnerable among us.
For those of you new to “Courtside,” both Judge Jeffrey Chase and I have previously written about how the BIA stood the law of causation on its head to deny a very grantable asylum claim in Matter of L-E-A-. https://wp.me/p8eeJm-UI
Indeed, the Fourth Circuit later absolutely trashed the BIA’s L-E-A- rationale on nexus in Salgado-Sosa v. Sessions, without mentioning L-E-A- by name. https://wp.me/p8eeJm-2aS.
The Fourth and other Circuits have also been very strong in recognizing “family” as a PSG. Indeed, one of the seminal “family-based” cases was Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). That was a case where the Fourth Circuit reversed and slammed the BIA while affirming my finding as an Immigration Judge that a family-based PSG was cognizable. In other words, I was right and the BIA was wrong. But, hey, who’s keeping track?
Now, Whitaker seeks to make things even worse. We should all be totally outraged that the Immigration Courts are under the control of the DOJ and political officials who are completely unqualified to sit in a quasi-judicial capacity. It’s “Clown Court;” but, in this case, the “clowns” are threatening innocent people’s lives!🤡
🤡🤡🤡🤡🤡