⚖️🗽🧑🏻‍⚖️👩‍💼 MODELING EOIR’S POTENTIAL IN DENVER! — Judge Brea C. Burgie & Attorney Alexandra Katsiaficas Show How Good Judging & Effective Advocacy Can Combine For A Gender-Based Asylum Grant To Female Refugee From El Salvador!

Violence Against Women — “The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.”
PHOTO: Creative Commons 4.0

Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:

*********************************

Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.

This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?

While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.

Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.

Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!

I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!

Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.

So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit. See Bah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).

Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!

More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.

Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.

Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.

But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.

And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.

Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expert IJ handling a non-detained docket.

That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”

As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.

But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”

That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing for upcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.

🇺🇸 Due Process Forever!

PWS

02-06-23

⚖️🗽 HUMAN RIGHTS FIRST FILES PUBLIC COMMENTS POINTING OUT DUE PROCESS ERODING FLAWS IN BIDEN ADMINISTRATION’S NEW ASYLUM REGULATIONS!

Most experts view the Biden Administration’s approach to refugees, asylum, human rights, and racial justice in America as disturbingly short-sighted!
Mr. Magoo
PHOTO: Gord Webster
Creative Commons License

From Human Rights First, June 1, 2022:

Human Rights First yesterday submitted a public comment on the Biden administration’s Interim Final Rule that creates a new process for adjudication of some asylum claims.

Under the rule, asylum seekers who are placed in the expedited removal process and who establish a credible fear of persecution may be assessed in an initial full asylum interview with the U.S. Citizenship and Immigration Services. Cases not granted by the Asylum Office will be referred to immigration court removal proceedings, as will other asylum cases that are not granted by the Asylum Office.

Courtesy Getty

Asylum seekers and U.S. Customs and Border Protection agents at the US-

Mexico border near Yuma, Arizona.

While Human Rights First welcomes some aspects of the rule, we expressed our concern about unreasonably fast deadlines that would sacrifice fairness, thwart efficiency, and exacerbate backlogs. We also oppose provisions that threaten asylum seekers’ right to a full and fair hearing on their asylum claims.

The rule guts a crucial safeguard in the credible fear process: it provides that the new asylum process will be conducted after subjecting asylum seekers to the fundamentally flawed expedited removal process, which has been shown to return refugees to persecution and death.

In our public comment on the rule and a factsheet on its concerning provisions, we have recommended changes to help asylum seekers receive timely, fair, and accurate adjudications.

********************

The full HRF comment is available at the above link!

As with most Government immigration/civil/human rights programs, a large part of the problem is WHO is making these decisions, WHO is setting precedents, and WHO is overseeing the process and enforcing accountability.

The Biden Administration is still operating EOIR and large portions of the immigration bureaucracy at DHS with Trump-era “holdovers” who were improperly “programmed to deny” asylum.
There is a dearth of positive precedents from the BIA on gender-based asylum and other types of common asylum applications at the border that are routinely and wrongfully mishandled and denied.
There are cosmic problems resulting from failure to provide qualified representation of asylum seekers at the border.
Detention continues to be misused as a “deterrent” to legal claims and “punishment” for asserting them.
Despite “touting” a much larger refugee admissions program beyond the border, the Administration has failed to deliver a robust, realistic, refugee admissions program for Latin America and the Caribbean which would take pressure off the border.
Racism and White Nationalism continue to drive the Administration’s dramatically inconsistent approach to White refugees from Ukraine compared with refugees of color at the Southern Border.

In plain terms, because of what the Biden Administration hasn’t done over the past 17 months, the new asylum regulations are “programmed for failure.”

🇺🇸 Due Process Forever!

PWS

06-06-22

🤮☠️ GARLAND’S EOIR STAR CHAMBERS CONTINUE TO GRIND OUT ANTI-ASYLUM TRAVESTIES! — Read What Passes For “Justice” In Garland’s Deadly Parody Of A Court System!

Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Kangaroos — “Miller’s Mob” is still alive and well at Garland’s EOIR. Legal asylum seekers — not so well, not so alive!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Four Horsemen — BIA Asylum Panel In Action — At Garland’s BIA, a “Miller-trained and inspired” Asylum Panel can, and does, kill dozens of unarmed asylum seekers in a single day to “make quota.” Despite being thoroughly discredited for judicial use, Garland has inexplicably continued due-process-denying, corner-cutting, quality-killing “production quotas” for his assembly line worker/judges in Immigration Courts!
Albrecht Dürer, Public domain, via Wikimedia Commons.

Dan Kowalski reports for LexisNexis Immigration Community:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

CA9 on Credibility: Munyuh v. Garland

Munyuh v. Garland

“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”

[Hats off to Ronald D. Richey!]

****************

Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.

Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:

On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”

But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.

No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.

Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”

The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!

“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!

While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!

Star Chamber Justice — Just look the other way, it’s the Garland way! “Justice”
Star Chamber
Style

Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?

🏴‍☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!

https://immigrationcourtside.com/2021/08/18/%F0%9F%97%BDcourtsides-instant-analysis-bidens-proposed-asylum-regs-advocates-beware-%E2%9A%A0%EF%B8%8F%E2%98%B9%EF%B8%8F-despite-a-potentially-workable-framework-adminis/

Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!

Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.

It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!

More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!

And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”

I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!

🇺🇸Due Process Forever!

PWS

08-26-21

🛡⚔️⚖️ROUND TABLE (WITH LOTS OF HELP FROM OUR FRIENDS @ AKIN GUMP) CONTINUES TO AID NDPA ⚖️🗽🦸🏽‍♂️🦸‍♀️IN TAKING IT TO THE EOIR CLOWN SHOW🤡🧟! — The Forces Of Bigotry, White Nationalism, “Dred Scottification,” & Malicious Incompetence Will Be Driven From The Field & Removed From The Power They Have So Grossly & Disgracefully Abused! — Read Our Latest Amicus Brief ⚖️🗽👍👨🏽‍⚖️🤵🏻‍♀️👩‍⚖️ In Pangea II Here!

2020.12.30 DE 41 Admin Motion for Leave to File Amicus Brief

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

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Thanks to our friends Steve Schulman 😇 and Michael Stortz 😇 at Akin Gump for their truly outstanding pro bono assistance on this brief. Couldn’t do it without you!😎

Such an honor to be “fighting the good fight” for due process and fundamental fairness with my colleagues on the Round Table🛡⚔️👩‍⚖️🧑🏽‍⚖️👨🏻‍⚖️. We have made a difference in the lives of some of the most vulnerable and deserving among us. 🗽We have also helped educate the Federal Courts and the public on the ugly realities of our failed, unjust, and totally dysfunctional Immigration “Courts” ☠️🤡🦹🏿‍♂️, modern day “Star Chambers” ☠️⚰️😪that have become weaponized appendages of “White Nationalist 🤮🏴‍☠️⚰️👎🏻 nation.”

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

⚖️🗽Due Process Forever!

Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸

PWS

12-31-20

⚠️⚠️PRACTICE ALERT FOR ASYLUM SEEKERS FROM NDPA ALL-STAR PROFESSOR LINDSAY HARRIS! — Filing for Asylum Before January 11, 2021!

Alert for Asylum Seekers – Consult with an Immigration Attorney if you Haven’t Filed your Case before January 11, 2020

Over the summer, the U.S. government proposed a set of regulations that will dramatically change asylum law. In response, the public and immigrant advocates submitted close to 90,000 public comments. The Government changed some of the proposed rules, slightly, but the new rules are set to go into effect on January 11, 2021. There will likely be legal challenges (lawsuits) to try to stop the regulations from going into effect. But, it’s always hard to tell what will happen. One of the changes made between July 15, 2020 and December 2020 to the proposed rules is that they will not be retroactive. This means that they will not apply to anyone who has filed their I-589 Application for asylum before January 11, 2021. The Government is saying that the new rules will apply now and despite any legal challenge to any sections that the Government views as simply codifying existing case law. But, it is likely much better for asylum seekers to have their applications filed prior to January 11, 2021. This is especially for people fleeing harm from non-government actors, for asylum seekers fleeing gender-based harm, and for individuals who have spent time in another country before coming to the U.S. If you are seeking asylum, please consult with an immigration attorney as soon as possible. An I-589 asylum application takes hours to properly fill out and you will need to have time to work with an attorney to prepare your application and get it mailed before January 11, 2021. If you are an asylum seeker in need of assistance, please contact Lindsay.harris@udc.edu, Vice-Chair of the American Immigration Lawyers Association’s National Asylum & Refugee Committee and Associate Professor and Director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.

Lindsay M. Harris (she/her/hers)

Associate Professor of Law

Director, Immigration & Human Rights Clinic

University of the District of Columbia

David A. Clarke school of Law

********************

Thanks Lindsay, my friend!

One of the points that I can’t overemphasize is the importance of getting legal assistance to fully, carefully, and accurately fill out the asylum application (Form I-589).

Variances between the written application and supporting documentation and testimony before the Asylum Office or Immigration Court have always been problematic.

But, under the current White Nationalist restrictionist regime, Asylum Officers and Immigration Judges are encouraged to “fly speck” asylum applications for any variances, no matter how minor, that can be used to find the applicant “not credible.” While this is both a violation of the statute and the case law in most Circuits, it’s a reality that asylum applicants must deal with.

It’s a particular problem given the hiring of many new Immigration Judges with no expertise in asylum laws, no sympathy for asylum seekers, no experience representing asylum seekers, subject to production quotas that encourage them to use “any reason to deny” an asylum application, and basically imbued with the “propaganda” that most asylum applications are without merit.

My own experience, although now in the past, is that many asylum seekers incorrectly assume that the Form I-589 is just a “rough outline” of the claim and that they will be allowed to fill in blanks, obtain additional documentation, and explain problems in full at a later time. That wasn’t true in the past, and is even less so now.

What and how things are said in the written asylum application can have a determinative effect before both the Asylum Office and the Immigration Court! “First instance denials” by Immigration Judges are very hard to reverse on appeal, particularly when based on “adverse credibility rulings.”

So, preparing the application carefully with assistance from someone who understands exactly how the Immigraton Court system works (or doesn’t) is essential!

Due Process Forever!

PWS

12-14-20

⚔️🛡SIR JEFFREY ON THE LIFE-SAVING IMPORTANCE OF COMMENTING: Yeah, Preparing Regulatory Comments Is A Royal Pain In The Butt, Particularly When You Know The Malicious Incompetents In The White Nationalist Regime Won’t Pay Any Attention — But, Federal Judges 🧑🏽‍⚖️⚖️ Often Do!

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/12/2/pangea-v-dhs-the-power-of-comments&source=gmail-imap&ust=1607531177000000&usg=AOvVaw2vQATGEpuX0Oss0KcQPyVx

Pangea v. DHS: The Power of Comments

The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules. Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded. For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.

As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump. In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment. Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality. They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.

In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea. The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum. Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.

Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious. The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family). These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection. In publishing the final rule, the Departments did acknowledge these concerns raised in the comments. However, as explained above, more than mere acknowledgement was required.

Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required. As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”

In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes? Is that what you thought we said? We meant they were similar to particularly serious crimes. Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”

That section which the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum. The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law. That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.

But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion. The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”

Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection. But thanks are also due to those who took the time and effort to submit comments. Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished by permission.

***************************

While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions.

Imagine all the positives for America that could be accomplished if all of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.

Ultimately, better qualified, more scholarly, human, and humane Justices — judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.

Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!

Due Process Forever!

PWS

12-03-20

ROUNDTABLE NEWS: Judge Jeff Chase & I Quoted By Nicole Narea In Law360 On How Trump’s Latest Assault On Immigrants’ Rights Could Go Belly Up Even With Some Statutory Support!

https://www.law360.com/immigration/articles/1182014/deportation-rule-may-violate-due-process-procedural-law

Deportation Rule May Violate Due Process, Procedural Law

By Nicole Narea

Law360 (July 25, 2019, 8:31 PM EDT) — The Trump administration’s recent expansion of its power to fast-track deportations is likely to invite legal challenges if the new process is seen as a violation of administrative law and the Constitution’s due process guarantees.

Under a rule published Monday, unauthorized noncitizens across the entire U.S. — not just those apprehended within 100 air miles of a land border — who arrived in the last two years via a land border could be subject to expedited removal proceedings and deported without an immigration court hearing. The American Civil Liberties Union has vowed to challenge the rule, which went into effect Tuesday and, by the U.S. Department of Homeland Security’s estimates, will affect more than 20,000 immigrants a year.

Contrary to the Trump administration’s claims, however, the rule may not qualify for an exception to the Administrative Procedure Act’s public notice requirements that allows the DHS secretary to unilaterally change the scope of the agency’s expedited removal authority. It also raises due process concerns for individuals who may not be able to prove their period of residency in the U.S. and for asylum-seekers who might be erroneously subject to expedited deportation.

“Unleashed expedited removal undermines our immigration system and the rule of law,” said Shoba Wadhia, a professor at Penn State Law in University Park.

Administrative Procedure Act

To justify the rule, acting DHS Secretary Kevin McAleenan invoked his authority under the Immigration and Nationality Act to have “sole and unreviewable discretion” to alter the scope of expedited removal proceedings. The rule is therefore exempt from the Administrative Procedure Act’s requirement to give the public an opportunity to comment on it before it goes into effect, DHS said in its announcement.

But Paul Schmidt, former chairman of the Board of Immigration Appeals during the Clinton administration, said there “does not appear to be any legitimate reason” for noncompliance with the APA’s notice-and-comment requirements, especially given that the rule had such a long gestation period. Trump has been considering such a rule since the first days of his administration.

Wadhia said opponents of the rule could argue that the government failed to show “good cause” that invoking notice and comment is in fact “impracticable, unnecessary, or contrary to the public interest” as the APA requires.

“The government’s position that there is a ‘good cause’ lacks integrity,” she said.

Most lawsuits that have succeeded in challenging Trump immigration policies have brought claims under the APA, including the recent challenge to a question about citizenship status on the 2020 census. The U.S. Supreme Court ultimately found that the decision to include the question on the census did not abide by the APA’s requirement that agencies provide a reasoned explanation for their actions.

Due Process Issues

Ken Johnson, dean of University of California, Davis School of Law, said the new rule could also be subject to due process challenges in light of the Supreme Court’s 1982 case Landon v. Plasencia, in which the justices applied a balancing test of interests in deciding the constitutionality of immigration admission procedures. That decision established that the interests of a noncitizen who has lived in the country for two years are much weightier than the interest at stake for a noncitizen who has been in the country for only two weeks because they have stronger ties to their community, he said.

Since the new rule expands expedited removal to apply to individuals who have lived in the U.S. for up to two years, they may be entitled to a higher standard of due process. Trump’s expansion of expedited removal also appears to exceed the limits provided by the Immigration and Nationality Act, resulting in further due process concerns.

Jeff Chase, a former legal adviser to the BIA and immigration judge, said the original intent of expedited removal was to stem an increase of inadmissible noncitizens arriving at airports in the 1990s who were paroled into the U.S. after announcing they were seeking asylum. The new rule, however, far surpasses that purpose.

“The present rule extends the application well beyond the purpose of controlling entry to the country, and now threatens to deprive those already here of their rights to apply for relief,” he said.

He said he also anticipates that expedited removal will be mistakenly applied to those beyond the scope of the rule, impacting those with a period of residence longer than two years, whose “attempts to stay under the government’s radar will create difficulty meeting their burden of establishing their period of residence in the U.S.”

Wadhia said that genuine refugees may also be erroneously denied due process, turned away as opposed to referred to an asylum officer to determine whether they have fear of persecution in their home countries, as required by law. Even if they have a credible fear interview, they are unlikely to pass in light of reports that asylum officers have been pressured to significantly lower their credible fear approval rates, Chase said.

Even U.S. citizens, lawful permanent residents, unaccompanied children and others who are exempt from expedited removal by statute could be unfairly and unlawfully targeted by the DHS, Wadhia said.

“The opportunity for profiling and violations of due process by DHS is rampant,” she said.

–Editing by Breda Lund and Kelly Duncan.

**************************************

The Government’s case for an “emergency” exemption to the APA is laughable. This bogus “immigration emergency” is actually a human rights tragedy that has been unfolding in “super slow motion” before us since before last Thanksgiving. Virtually every part of it is a predictable result of Trump’s “maliciously incompetent” racist-driven approach to migration situations. To say that it now requires an “emergency” exemption, when Trump announced the proposed policy change in an Executive Order over two years ago, and his incompetent agencies have been fiddling around with it ever since, is simply absurd.

The Constitutional problem raised by Dean Johnson and others is very real.

And, there is no question that Trump’s DHS will misuse this authority to detain and deport lawful permanent residents and even U.S. citizens. Indeed, it’s already happening even without the regulatory change. See, e.g., “Texas-Born Student Held In Immigration Custody For Weeks Released,” https://www.huffpost.com/entry/texas-student-immigration-custody-detention_n_5d36f637e4b020cd99498588.

Yes, some Federal Judges can be tone deaf to the plight of ordinary individuals, particularly when they wrongly think that they are “above the fray.”

Perhaps we need to hope that the DHS wrongfully detains a Federal Judge, a Federal Judge’s spouse, or the child of a Federal Judge so that the message about how Trump’s misguided policies affect ALL of us gets through to the “Judicial Ivory Tower” sooner, rather than later.

PWS

07-26-19

DHS OFFICIAL ON TRUMP’S LATEST RACIST ATTACK ON ASYLUM: “IT’S F***ED Up!”— Racists Are Running Our Country With “Malicious Incompetence” — That’s a BIG Problem For Everyone, Not Just Those Targeted By Their Outrageous White Nationalist Attacks!

https://www.buzzfeednews.com/article/hamedaleaziz/trump-asylum-central-americans

Hamed Aleaziz reports for BuzzFeed News:

The US will end asylum protections for Central Americans and others who cross through Mexico to reach the southern border, the Trump administration announced Monday, a sweeping, unprecedented move that will quickly be challenged in court.

The new move, which bars asylum for any individual who crosses through a third country but does not apply there for protection before reaching the US southern border, takes effect Tuesday in the form of a regulatory change.

It becomes the latest in a series of attempts by the Trump administration to actively deter asylum seekers from reaching the border. The details of the plan and efforts to implement it were first reported by BuzzFeed News in May, and experts say it would keep hundreds of thousands of people fleeing violence from entering the US.

“With one regulation the US is nearly entirely turning its back on this asylum flow,” Sarah Pierce, an analyst at the Migration Policy Institute, told BuzzFeed News.

Multiple Department of Homeland Security officials who spoke with BuzzFeed News voiced concerns about the administration’s move.

“It’s fucked up,” one official said. “There’s a reason people apply for asylum in the US — we have a robust asylum system. Other countries on the route to the southern border don’t.”

Rodrigo Abd / AP

Another said it would be blocked in court.

“Flatly inconsistent with our treaty obligations. Flies in the face of decades of case law. Destined to be enjoined and or struck down immediately,” the official said.

Another DHS official said the move was not only mistaken, but it would backfire on the administration.

“This administration continues to pervert the 1980 Refugee Act and its later amendments by passing regulations that burden its own employees with overly cumbersome, ill-conceived new ‘standards,'” the official said. “This rule will effect all those who reach our southern land border but may have fled from anywhere in the world. It does nothing to fix our broken immigration system, which is at its breaking point because the administration’s mismanagement.”

Administration officials have been working on the plan for weeks, considering it a potential solution to the high rate of families crossing the border.

“Until Congress can act, this interim rule will help reduce a major ‘pull’ factor driving irregular migration to the United States and enable DHS and [the Department of Justice] to more quickly and efficiently process cases originating from the southern border, leading to fewer individuals transiting through Mexico on a dangerous journey,” said acting DHS Secretary Kevin McAleenan.

Advocates said they would move to sue immediately.

Lee Gelernt, deputy director of the Immigrants’ Rights Project of the American Civil Liberties Union, said the group would immediately sue.

“The Trump administration is trying to unilaterally reverse our country’s legal and moral commitment to protect those fleeing danger. This new rule is patently unlawful and we will sue swiftly,” he said.

The ACLU previously filed a lawsuit over the administration’s attempt to ban asylum for those who crossed the border without authorization. The policy was later blocked in federal court and has since not been implemented.

Oliver De Ros / AP

The new regulation would make anyone traveling through Mexico by land to the southern border ineligible for asylum if they did not first seek protection before reaching the US. Immigrants could attempt to receive protection through a process that would be much more difficult.

The ban would apply not just to Central Americans but other non-Mexican nationalities, including Cubans, Haitians, and Venezuelans who in recent months have applied for asylum at the southern border in higher numbers.

The new rule allows for a few exceptions, including if an immigrant was a victim of severe human trafficking or if they traveled through a third country that did not have adequate asylum protections. The person could also avoid the new ban if they can prove that they applied for protection in a third country and later were ordered a final denial. It’s unclear how many people could fit these categories.

“This latest regulation is an attempt to close down one of the few remaining avenues for people in need of protection,” said Ur Jaddou, former chief counsel for the US Citizenship and Immigration Services. “The only ray of light for those seeking safety is that Congress was clear when it enacted the asylum law and this attempt to circumvent it by regulation will likely see the same fate of other Trump administration attacks on the law and result in a federal court injunction.”

**************************************

Only the Article III Courts can stop this continuing outrage. But, will they do their job before the country descends into total chaos and the race wars that Trump and the GOP are openly promoting?

PWS

07-16-19

RACIST SCOFFLAWS TRUMP, BARR, McALEENAN MOUNT VICIOUS ATTACK ON VULNERABLE CENTRAL AMERICAN REFUGEES — SEEK TO ELIMINATE ASYLUM STATUTES, TREATIES, CONSTITUTIONAL DUE PROCESS PROTECTIONS BY REGULATION!

https://www.huffpost.com/entry/trump-issues-new-rule-to-end-asylum-protections-for-central-americans_n_5d2c7a8fe4b0bd7d1e1fee42

Colleen Long reports for AP in HuffPost:

WASHINGTON (AP) — The Trump administration on Monday moved to end asylum protections for most Central American migrants in a major escalation of the president’s battle to tamp down the number of people crossing the U.S.-Mexico border.

According to a new rule published in the Federal Register , asylum seekers who pass through another country first will be ineligible for asylum at the U.S. southern border. The rule, expected to go into effect Tuesday, also applies to children who have crossed the border alone.

There are some exceptions: If someone has been trafficked, if the country the migrant passed through did not sign one of the major international treaties that govern how refugees are managed (though most Western countries have signed them) or if an asylum-seeker sought protection in a country but was denied, then a migrant could still apply for U.S. asylum.

But the move by President Donald Trump’s administration was meant to essentially end asylum protections as they now are on the southern border.

The policy is almost certain to face a legal challenge. U.S. law allows refugees to request asylum when they arrive at the U.S. regardless of how they did so, but there is an exception for those who have come through a country considered to be “safe.” But the Immigration and Nationality Act, which governs asylum law, is vague on how a country is determined “safe”; it says “pursuant to a bilateral or multilateral agreement.”

Right now, the U.S. has such an agreement, known as a “safe third country,” only with Canada. Under a recent agreement with Mexico, Central American countries were considering a regional compact on the issue, but nothing has been decided. Guatemalan officials were expected in Washington on Monday, but apparently a meeting between Trump and Guatemalan President Jimmy Morales was canceled amid a court challenge in Guatemala over whether the country could agree to a safe third with the U.S.

The new rule also will apply to the initial asylum screening, known as a “credible fear” interview, at which migrants must prove they have credible fears of returning to their home country. It applies to migrants who are arriving to the U.S., not those who are already in the country.

Trump administration officials say the changes are meant to close the gap between the initial asylum screening that most people pass and the final decision on asylum that most people do not win. But immigrant rights groups, religious leaders and humanitarian groups have said the Republican administration’s policies amount to a cruel and calloused effort to keep immigrants out of the country. Guatemala, Honduras and El Salvador are poor countries suffering from violence .

Along with the administration’s recent effort to send asylum seekers back over the border , Trump has tried to deny asylum to anyone crossing the border illegally and restrict who can claim asylum, and Attorney General William Barr recently tried to keep thousands of asylum seekers detained while their cases play out.

Nearly all of those efforts have been blocked by courts.

Meanwhile, conditions have worsened for migrants who make it over the border seeking better lives. Tens of thousands of Central American migrant families cross the border each month, many claiming asylum. The numbers have increased despite Trump’s derisive rhetoric and hard-line immigration policies. Border facilities have been dangerously cramped and crowded well beyond capacity. The Department of Homeland Security’s watchdog found fetid, filthy conditions for many children. And lawmakers who traveled there recently decried conditions .

Immigration courts are backlogged by more than 800,000 cases, meaning many people won’t have their asylum claims heard for years despite move judges being hired.

People are generally eligible for asylum in the U.S. if they feared return to their home country because they would be persecuted based on race, religion, nationality or membership in a particular social group.

During the budget year for 2009, there were 35,811 asylum claims, and 8,384 were granted. During 2018 budget year, there were 162,060 claims filed, and 13,168 were granted.

___

Associated Press writer Michael Balsamo contributed to this report.

************************************************

The Trump Administration launches its most brazen attack yet on the rule of law, our Constitution, and American Democracy. But, ultimately it’s likely to fail for the following reasons:

As usual, the Trump Administration fails to comply with the Administrative Procedures Act (“APA”) in publishing a major policy change without advance opportunity for notice and comment;
The regulation violates the Immigration and Nationality Act’s (“INA’s”) guarantee of a right to apply for asylum except in very limited circumstances not applicable here;
A similar regulation purporting to end asylum rights for those applying between ports of entry was immediately halted by the Federal Courts;
Even under the regulation, refugees arriving in the U.S. retain the right to apply for mandatory “withholding of removal” under the INA and the Convention Against Torture (“CAT”) — although the standard is higher, those showing “past persecution” are entitled to a regulatory presumption of future persecution for purposes of withholding of removal under the INA;
Smugglers eventually can develop (more dangerous and expensive) water routes to the U.S. which do not require passing through any other “signatory country” on the way;
Smugglers could eventually shift their “business model” to higher risk more expensive schemes designed to avoid the U.S. asylum system completely and deposit individuals in the interior of the U.S. where most of them will be able to “lose themselves” among the millions of other foreign nationals residing and working in the U.S. without documentation.

We are diminishing ourselves as a nation, but that won’t stop human migration.

And, remember, YOUR legal and Constitutional rights might be the next casualty of Trump and his out of control band of scofflaws.

Join the New Due Process Army and fight for the legal and Constitutional rights and the human dignity of everyone in America!

PWS

07-15-19

Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:

🇺🇸 Due Process Forever!

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From Human Rights First, June 1, 2022:

🇺🇸 Due Process Forever!

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⚖️🗽Due Process Forever!

Happy New Year! 🍾🥂🎉Looking forward to Jan. 20 and the end of the kakistocracy!👍🏼⚖️🗽😎🇺🇸

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Join the New Due Process Army and fight for the legal and Constitutional rights and the human dignity of everyone in America!

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