BIA – Page 21 – immigrationcourtside.com

🤯GARLAND BIA’S SLOPPY WORK, ANTI-ASYLUM SLANT CONTINUES TO ROIL WATERS IN NORMALLY PRO-GOV 5TH CIR!

Dan Kowalski reports for LexisNexis Immigration Community:

Yahm v. Garland, unpublished, 5th Cir., 05-31-22

https://www.ca5.uscourts.gov/opinions/unpub/20/20-60914.0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/unpub-ca5-credibility-remand-yahm-v-garland#

“Elvis Njenula Yahm, a citizen of Cameroon facing removal, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his pro-Anglophone political opinion. An immigration judge denied all three avenues for relief, and the Board of Immigration Appeals (BIA) dismissed Yahm’s appeal. … A recent decision supports Yahm’s view that an adverse credibility finding does not relieve the agency of its obligation to also consider documentary support for a CAT claim. See Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). … Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive. See Arulnanthy, 17 F.4th at 598. Yahm’s petition for review is GRANTED and these proceedings are REMANDED for the BIA to address the CAT claim consistent with Arulnanthy.”

[Hats off to Keith S. Giardina!]

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

Way to go, Keith! Congrats! Winning justice for asylum seekers in the 5th Circuit is no mean feat!

The 5th Circuit decision in Arulnanthy sounds very much like the 4th Circuit’s decision in Camara v. Ashcroft, 378 F. 3d 361 (4th Cir. 2004). Camara actually changed for the better the preparation, presentation, and most of all results in asylum cases in the 4th Circuit.

I consider it the “precursor” to the REAL ID provision now incorporated in the INA requiring IJ’s and the BIA to consider the “the totality of the circumstances, and all relevant factors,” in making credibility determinations. If that is actually done, which it isn’t in far too many cases in today’s broken Immigration Courts, the results are likely to be far more positive for asylum seekers and other respondents seeking relief in Immigration Court.

The “Camara effect” was real. For example, in 2004, on the “eve of Camara,” the asylum denial rate at the Arlington Immigration Court, where I sat, in the 4th Circuit, was in excess of 70%. By the time I retired in 2016, it was the polar opposite. The asylum grant rate exceeded 70%! SOURCE: TRAC Immigration.

Of course, no one factor is responsible for that positive change. And, I acknowledge that in the Charlotte Immigration Court, also in the 4th Circuit, where several judges were reknowned for their hard-core anti-asylum attitudes, the denial rates remained disturbingly above the national average. And, of course, the “institutionalized anti-asylum bias” ushered in and promoted at EOIR by the Trump regime resulted in another dramatic, totally unjustified, downturn in asylum grants by EOIR across America after 2016.

Nevertheless, positive appellate guidance on asylum is a major factor in establishing and maintaining due process in the Immigration Courts. Unfortunately, almost none of that expert positive guidance on asylum and other forms of relief comes from Garland’s BIA precedents. Additionally, although some of his appointments have been welcome, overall, Garland has done a very poor job of bringing in dynamic progressive expert leaders and judges to reverse the anti-asylum, anti-due-process, anti-immigrant “culture” that continues to haunt EOIR at all levels.

The “results” of his dysfunctional courts speak for themselves. Backlogs build, Circuit Courts struggle with EOIR’s poor “haste makes waste” work product, and decisional consistency on asylum is shockingly, “tragicomically” lacking!

In almost all ways, this system has seriously regressed in the past decade, even while eating up more resources! That’s about as much of an “engineered lose-lose” as one can imagine! Yet, Biden, Harris, and Garland appear impervious to this glaring, “fixable” problem that threatens our entire justice system!

Meanwhile, could even the conservative judges of the 5th Circuit be tiring of substandard work product inflicted on them by Garland’s dysfunctional EOIR? Reprehensibly, this is by no means the first “bogus asylum denial” by Garland’s EOIR involving a Cameroonian claim to be soundly rejected by the 5th. https://immigrationcourtside.com/2022/05/20/%f0%9f%8f%b4%e2%98%a0%ef%b8%8fassembly-line-injustice-eoir-most-conservative-u-s-circuit-court-faults-bogus-asylum-denial-for-cameroonian-that-garlands-doj-defended/

Shouldn’t racial justice advocates be all over Garland, Monaco, Gupta, and Clarke for the EOIR’s disgraceful performance on asylum claims involving Cameroonians and other applicants of color! If not, why not? The entire “progressive social justice community” should be expressing “collective outrage” to the Biden Administration about the Garland DOJ’s disgraceful performance at EOIR and on other human rights issues involving race and immigration.

It’s also worthy noting, as my Round Table colleague retired Judge Jeffrey Chase has pointed out before, that the Biden Administration has granted TPS to Cameroonians in the U.S. So, there is really no issue about the truly miserable human rights conditions there. That is, apparently, except in Garland’s Immigration Courts where the “programmed to deny” and “good enough for government work” mentalities continue to prevail — even where the stakes are life or death!

Additionally, the regulations implementing the Convention Against Torture (“CAT”) at EOIR initially became effective on Mar. 22, 1999 — over two decades ago. I remember that at one of the next Immigration Judge Conferences, probably in 1999 or 2000, the training specifically instructed that because of the country-conditions related nature of CAT, adverse credibility rulings against a respondent were not determinative of CAT claims.

Yet, more than two decades later, Immigration Judges and, worse yet, the BIA are still making that same fundamental error! How does this make the idea that EOIR is an “expert court” or that “constitutional due process is being protected at EOIR” anything other than a “sick joke.” Yet, the mockery of justice continues and nobody at Justice, from the top down, is being held accountable for stomping on life-determining legal and Constitutional rights! Why?

🇺🇸Due Process Forever!

PWS

06-01-22

🗽🧑🏻‍⚖️ BIA APPELLATE JUDGES LIEBOWITZ, BROWN, MANUEL WITH STRONG REVERSAL OF HIGH-DENYING IJ IN FIFTH — Nexis, PSG — Roberto Blum Reports! — “This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent,” Says Says Brooklyn Law Associate Dean Stacey Caplow!

Roberto writes:

Hello Judge,

Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.

P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

Best,

DPF!

RB

Here’s the panel decision:

BIA APPEAL REMAND (Redacted)

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

Thanks, Roberto.

As Roberto says:

This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.

That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!

Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?

I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?

Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!

The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.

It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?

Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!

Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?

These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”

When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.

The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.

Stacy Caplow
Associate Dean of Experiential Education & Professor of Law
Brooklyn Law
PHOTO: Brooklyn Law website

As Dean Caplow cogently points out:

Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/the-pathos-of-patel-v-garland

While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!

As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!

There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”

Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence). All of us who care about the future of American justice should be asking why he isn’t doing his job!

🇺🇸 Due Process Forever!

PWS

05-31-22

🗽”My heart is full! My heart is full.” ❤️ — GW IMMIGRATION CLINIC SAVES ANOTHER LIFE!😎

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Paulina Vera

Please join me and Professor Vera in congratulating Immigration Clinic client, R-A-, from Nigeria, and his student-attorneys, Olivia Russo, LinLin Teng, Kennady Peek, Lea Aoun, and Megan Elman. The client’s asylum application was filed on December 3, 2018, his interview at the Asylum Office was on September 3, 2021, and he was granted asylum on May 18, 2022. We received the approval notice yesterday. The above-captioned is what R-A- said upon learning about his asylum grant.

R-A- is a gay man and LGTBQ+ activist. Throughout his entire life, R-A- experienced bullying and threats and had to keep his dating life a secret. However, things got even worse for him once he started an LGTBQ+ online magazine that received international attention. His family disowned him. A former classmate also set him up and he was physically beaten, sexually assaulted, called derogatory names, blackmailed, and outed. Since coming to the U.S., R-A- has continued to work on his online publication and volunteer for other LGBTQ+ initiatives. He hopes to one day attend law school in the U.S.

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

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…

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

Thanks for the update and for all you and your student attorneys do for American justice! Once again this shows the effect of expert representation of asylum seekers and the critical importance of winning cases at the first possible level, in this case the USCIS Asylum Office. Who knows what might have happened if this had been sent over to the “EOIR roulette wheel,” where life or death justice for immigrants has become a “high-stakes game of chance?” 🎰

Incredibly, three years ago, during the depths of the Trump regime, EOIR Executives actually misdirected agency resources into assembling bogus claims and misinformation intended to minimize and downplay the importance of representation in Immigration Court as well as to cover up the gross violations of due process that had become routine at EOIR. See, e.g., https://immigrationcourtside.com/2019/05/13/multiple-organizations-call-bs-on-eoirs-lie-sheet-no-legitimate-court-would-make-such-a-vicious-unprovoked-disingenuous-attac/

Perhaps even more remarkably, most of the folks who participated in that “intentional misdirection” remain on the agency payroll under Garland, a number in their same positions.

The lack of an Attorney General who “gets it” (apparently a staple of Dem Administrations) and who is willing to clean house and make the necessary aggressive progressive reforms to restore due process at EOIR and throughout the Immigration bureaucracy is yet another reason why the work of clinics and other battalions of the NDPA remains so critical! With a Government whose contempt for Due Process is amply illustrated by foot-dragging on Title 42 revocation, bogus, justice-denying “Dedicated Dockets,” and an appellate body that cuts corners while eschewing positive asylum guidance that would save lives, advocates for respondents are the only folks seriously interested in carrying out our Constitution and insuring that the rule of law is honored.

If that sounds like an indictment of Garland’s “leadership” on human rights, racial justice, and immigrant justice, that’s because it is!

🇺🇸 Due Process Forever!

PWS

05-30-22

🇺🇸🗽⚖️😎🌟🏆NDPA SUPERSTAR LAUREN WYATT WINS AWARD!

Lauren Wyatt Award — NY City Bar
Legal Services Award
Lauren Wyatt

Lauren Wyatt

Lauren Wyatt is an attorney with Catholic Charities Community Services, Archdiocese of New York, where she provides direct representation to immigrants before the Immigration Court, Board of Immigration Appeals, USCIS, and New York family courts. As the Lead Project Attorney for the Immigration Court Helpdesk (ICH), she coordinates pro se application workshops, Know-Your-Rights presentations, legal screenings, and pro bono case placements for unrepresented immigrants in removal proceedings. She also prepares and supervises the implementation of specialized ICH programming in response to emergencies (such as family separation) and changes in law and policy (such as in domestic violence- and family-based asylum claims) She recruits and trains volunteers to provide free legal information and assistance to low-income immigrants. She also supervises and mentors pro bono volunteer attorneys in representing clients before the Immigration Court.

Prior to joining Catholic Charities, Lauren was a Program Associate at the Vera Institute of Justice administering the Legal Orientation Program for detained immigrants. Before moving to New York City, Lauren was an Equal Justice Works AmeriCorps Fellow at Catholic Charities Archdiocese of Washington. At Catholic Charities DC, she represented unaccompanied children in immigration and state court proceedings, as well as in affirmative applications before USCIS. She also trained and mentored pro bono attorneys to represent clients in immigration and family court cases.

Lauren is licensed to practice in New York and Maryland, as well as before the U.S. District Court for the Eastern District of New York. She earned her J.D. from Howard University School of Law in 2014, and her B.A. from the University of Pennsylvania in 2010. She has studied in Seville, Spain, Buenos Aires, Argentina, and Havana, Cuba. She is fluent in Spanish and conversational in Italian.

Refugee Women

SOURCE: I-ARC

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

Congrats, Lauren!😎👍🏼

As we can see, eight years out of law school, Lauren has basically “done it all!” When are we going to see Lauren on the Federal Bench?

Like Vice President Kamala Harris, Lauren is a distinguished grad of Howard Law! So, why hasn’t Harris actively recruited her for a judicial or senior management position at EOIR, where due process, racial justice, practical problem solving, and a positive attitude toward human rights are in total tatters and need “big time” change and redirection?

Why are Dems blowing the opportunity to recognize, promote, and empower “the best and the brightest” that the “upcoming generation” of American lawyers has to offer?

Why is EOIR still a “due process wasteland” rather than a model, due process focused, best practices oriented, “progressive judiciary of the future?”

Somebody with some “pipelines” into the Biden Administration should be asking these questions and insisting on positive progressive actions!

🇺🇸Due Process Forever!

PWS

05-27-22

☠️👎🏽DEM’S CATASTROPHIC DUE PROCESS FAILURE: AS PREDICTED, GARLAND’S “DEDICATED DOCKETS” ARE “ASYLUM FREE ZONES” TARGETING CHILDREN!🤮

“Floaters” — Garland’s vision of “justice” for refugee children appears to be little different from that of Stephen Miller and his White Nationalist predecessors at DOJ!
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

Cindy Carcamo reports for the LA Times:

BY CINDY CARCAMO STAFF WRITER

MAY 25, 2022 11:56 AM PT

After drug traffickers killed his little brother, William and his 6-year-old son, Santiago, fled Colombia last September to seek asylum in the United States.

Unbeknownst to William, who ended up in Los Angeles with a friend, he and his son immediately became part of a cohort of thousands of families in a “dedicated docket” program that the Biden administration established in 11 cities, including Los Angeles, in May 2021.

In response to a sudden rise of apprehensions last spring of families and children at the Southwest border, Biden promised the accelerated docket would resolve cases “more expeditiously and fairly.” These sorts of programs have existed in various forms under previous administrations; Biden’s program pushes immigration judges to resolve cases in 300 days, significantly shorter than the 4.5-year average of asylum cases in immigration court.

But according to a new Center for Immigration Law and Policy at UCLA Law report, the docket’s fast-track timeline has imposed new hardships on many asylum seekers and created additional obstacles that ultimately lead to higher rates of deportation orders, sometimes based on legal technicalities.

For William — who didn’t want his last name published, fearing reprisal against his family still living in Colombia — the docket’s expeditious nature meant he had only six weeks to secure legal representation before his first court hearing, leaving him to navigate a complex and often confusing system without an attorney. Immigration officials provided him with documents heavy with legal jargon in English. He could read only in Spanish.

In addition, those on the docket are released with “alternatives to detention,” which means they are monitored, either with an ankle bracelet or via a phone application. Immigration officials shackled William with a GPS monitor on his ankle before releasing him and his son.

Ultimately, an immigration judge ordered William and his 6-year-old to be deported in “absentia” when they didn’t show up for their court hearing at U.S. Immigration Court in downtown Los Angeles. In fact, at the time the judge gave the order, William was in the building, but was three floors below the courtroom in a waiting area at the direction of an Immigration and Customs Enforcement official. By the time William was told he was in the wrong place, the judge had already ordered the father and son’s removal from the U.S.

In Los Angeles, an estimated 99% of the 449 cases completed on the dedicated docket as of February of this year resulted in removal orders and about 72% of those cases were issued to people who missed their court hearing — “in absentia” — according to a report released Wednesday by the Center for Immigration Law and Policy and Immigrants’ Rights Policy Clinic at UCLA School of Law

Perhaps most striking, the report shows that almost half of those in absentia removal orders are for children, many 6 and younger.

In addition, court data analyzed in the report show that an estimated 70% of people on this particular docket don’t have legal counsel. In contrast, an estimated 33% of those on the Los Angeles court’s non-accelerated docket lack legal counsel.

The nature of the accelerated dockets made it nearly impossible for asylum-seekers to get a fair hearing, the report’s authors concluded. The high absentia rate, the report concluded, is a red flag that the dedicated docket isn’t working as it should.

. . . .

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

Read the rest of Cindy’s totally disturbing article at the link!

Sadly, this news will come as no surprise to readers of “Courtside.” Having watched these types of efforts to co-opt the Immigration Courts as a vehicle of unfair, racially motivated “deterrence” and “enforcement,” I could see that this program was going to be an unmitigated disaster at EOIR, given Garland’s failure to install progressive judicial leadership and human rights and due process expertise into the broken and biased system he inherited from Sessions and Barr.

The NDPA is going to have to “dig in” and fight Garland and Mayorkas every step of the way, at every level of the system, to save as many lives as possible from their disgraceful continuation of a “Miller Lite” White Nationalist, anti-immigrant program of abusing and dehumanizing asylum seekers — most individuals of color and many of them children or other “vulnerable individuals.”

🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!

PWS

05-26-22

POLITICS: KURT BARDELLA @ LA TIMES: WHAT “DEMS DON’T GET” THREATENS AMERICAN DEMOCRACY☠️: “They should do what the Republicans would do given a chance: Refuse to compromise and go on the attack. This difference, of course, is that the Democrats are going after the insurrectionist machine and defending democracy while the GOP is tearing it down.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=8323fc34-a52b-46ef-9c44-5be1f107c380

By Kurt Bardella

The question I get asked the most as someone who went from being a Republican to a Democrat is: “What’s the biggest difference between the two parties?”

The answer: Every impulse Democrats have is defensive and every impulse Republicans have is offensive.

A report in the Washington Post this week showed these dynamics at play perfectly between Democrats and Republicans on the House Jan. 6 select committee. As the Post described, Democratic Rep. Stephanie Murphy (Fla.) insisted that the committee focus less on former President Trump and more on the security and intelligence failures that allowed the attack on the Capitol. In response, Republican Vice Chair Liz Cheney (Wyo.) argued that the committee should keep its focus on the former president.

This is the best illustration I have come across that demonstrates how different Republicans and Democrats approach things on a tactical and, I’d say, cellular level.

When Republicans have the reins of power, they do not hesitate to go after the very top. From Barack Obama’s birth certificate to Hillary Clinton’s emails and potentially Hunter Biden’s laptop, the GOP is unapologetic about pursuing witch hunts for political gain.

Democrats, on the other hand, are always pursuing lines of legitimate oversight reluctantly. At times, it feels like they are apologizing for doing the right thing.

I think back to Trump’s first impeachment and the hesitant posture displayed by the Democrats during those proceedings. It was almost as if they were forced into it, regretted that it came to this, and moved as fast as possible to get it over with.

Democrats controlled the House majority but never forced Trump administration officials with firsthand knowledge of the events that were at the center of the impeachment inquiry to testify, such as John Bolton, Mick Mulvaney or Rick Perry, and the Republican-controlled Senate predictably torpedoed any effort to compel them to testify.

History repeated itself during Trump’s second impeachment as firsthand witnesses like Mike Pence, Mark Meadows, Jared Kushner, Ivanka Trump, Rudolph W. Giuliani, etc., were never called to testify. Hillary Clinton, of course, was grilled by the Republican-led Benghazi committee for more than 11 hours.

It’s almost as if Democrats believe there is some prize awaiting them for showing what they would characterize as restraint. There isn’t.

. . . .

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

Read the complete article at the link.

This has been obvious in the Dems’ feckless approach to Immigration, and particularly the Immigration Courts, over the years.

Without enacting any significant legislation, the GOP instituted an overtly racist/nativist/restrictionist program. They negated existing laws, scorned the Constitution, abrogated log-standing international agreements, and aggressively and blatantly stacked the Federal Judiciary at all levels with far-right zealots. And they have gotten away with it!

Yet, even after successfully running on programs promising a restoration of the rule of law and the Constitution in immigration and human rights, Dems have been from feckless, to timid, to complicit in the GOP’s vile programs.

The GOP did not hesitate to “stack” the Immigration Court system at all levels with questionably qualified judges who lacked perspective, expertise, and a commitment to due process. The result was a dramatic plunge in the grant rates for asylum seekers, even though conditions in the primary sending countries have continued to worsen dramatically over the years.

No justification for what the GOP did, and no hesitation or self-doubts about doing it! Amid tons of criticism, they just plowed ahead and did it! They “played to the most extreme elements of their base” — nobody else! They weren’t scared to take extreme actions that most polls showed the majority of American’s didn’t favor!

By contrast, the Dems approach to immigration and human rights policy is a complete mess. And, worst of all, the Immigration Courts and EOIR remain largely as the Trump regime left them. Indeed, the backlog is growing at an astounding rate, as Garland flails and fails to bring on board the “best and brightest” judges and intellectual leaders to reform EOIR into the due-process oriented “model judiciary” that it was once intended to be!

🇺🇸Due Process Forever!

PWS

05-22-22

⚖️👩🏽‍⚖️NOLAN RAPPAPORT @ THE HILL: THE EOIR BACKLOG IS GETTING WORSE — GARLAND DOES NOT APPEAR TO HAVE THE ANSWER — I’m Quoted In The Article!

Nolan Rappaport
Contributor, The Hill

Immigration courts are overrun with cases, and it’s only getting worse

Nolan Rappaport, opinion contributor

The immigration court has a backlog of more than 1.7 million cases. This means that the number of people waiting for a hearing is larger than the population of Phoenix, Ariz., or of Philadelphia, Pa., the fifth and sixth largest cities in the United States.

This isn’t a new problem, but it has gotten much worse recently. According to TRAC, a data distribution organization at Syracuse University, the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden administration when it was “only” close to 1.3 million cases.

What is the administration doing to reduce the backlog?

Hiring more judges: Recent administrations have prioritized hiring more judges to lower the backlog. From fiscal 2014, to fiscal 2021, the number of judges has more than doubled, rising from 249 to 559. At the end of the first quarter in fiscal 2022, there were 578.

According to the Congressional Research Service, the backlog probably would continue to grow even if 100 more judges were hired. An additional 200 could reduce the backlog to just under 1.1 million, but it wouldn’t reach that level until fiscal 2031. It would take an additional 500 judges to eliminate the backlog entirely, and it wouldn’t happen until fiscal 2030.

Accelerated dockets: In May 2021, DHS announced a “dedicated docket” program to “more expeditiously and fairly” render decisions in the cases of certain families who are apprehended after making an illegal entry.

These families are placed in removal proceedings and then released into the interior of the country under the “Alternatives to Detention” program. This program currently is monitoring more than 227,508 families and single individuals.

The Florence Project claims that the Obama and Trump administrations attempted these “dedicated dockets” to reduce the backlog and it not only failed, but led to widespread due process violations and undermined access to legal counsel.

The Vera Institute of Justice opposes the program because it “forces newly arriving, asylum-seeking families through rushed ‘rocket docket’ court proceedings without guaranteeing legal representation for all, depriving families of fairness and due process.”

In any case, it just speeds up the processing of new additions to the immigration court caseload. It does nothing to reduce the size of the backlog, and it is very unfair to migrants who have been waiting for a hearing for up to five years.

It also may hamper efforts to reduce the backlog. Georgetown law school professor Paul Schmidt points out that when dedicated docket judges are not available for cases on the general docket, it places extra burdens on their judicial colleagues who are handling the general docket cases.

Read more at https://thehill.com/opinion/immigration/3492751-immigration-courts-are-overrun-with-cases-and-its-only-getting-worse/

Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://nolanrappaport.blogspot.com

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

Go over to The Hill at the above link to read the complete article.

Thanks Nolan for continuing to “shine the light” on this critical issue that might appear to be “below the radar screen” but actually threatens the stability of our entire legal system!⚖️

As I’ve said many times, Aimless Docket Reshuffling (“ADR”), engaged in to some extent by Administrations of both parties, is NOT the answer. It’s a huge part of the problem!

🇺🇸Due Process Forever!

PWS

05-21-22

🏴‍☠️ASSEMBLY LINE INJUSTICE @ EOIR! — MOST CONSERVATIVE U.S. CIRCUIT COURT FAULTS BOGUS ASYLUM DENIAL FOR CAMEROONIAN, THAT GARLAND’S DOJ DEFENDED! — Nkenglefac v. Garland, 5th Cir., 05-18-22, published

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.ca5.uscourts.gov/opinions/pub/19/19-60647-CV0.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca5-on-due-process-credibility-nkenglefac-v-garland#

“Petitioner Giscard Nkenglefac, a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge (“IJ”), Agnelis Reese, denied Nkenglefac’s application for relief from removal and ordered him removed to Cameroon after determining that Nkenglefac was not credible. The Board of Immigration Appeals (“BIA”) subsequently affirmed the IJ’s determination, and Nkenglefac was removed to Cameroon. Nkenglefac now petitions for review of the BIA’s dismissal of his appeal from the IJ’s denial of application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Nkenglefac challenges the IJ’s reliance on his U.S. Customs and Border Protection (“CBP”) and asylum credible fear interviews that were not entered into the hearing record of the removal proceeding, nor, indeed, raised in that hearing at all, to make an adverse credibility finding. … Nkenglefac argues that the IJ erred as a matter of law by drawing negative credibility inferences from summaries of his CBP and credible fear interviews because neither interview was submitted into the record during his proceeding, much less adverted to. Nkenglefac also argues that he did not waive this argument because he could not have raised the issue before the IJ given that he had no notice the IJ would rely on these documents prior to issuance of her decision. … [A]t no point during the hearing before the IJ was Nkenglefac provided with the opportunity to explain any apparent inconsistencies or dispute the accuracy of the records in question, or cross examine the individuals who prepared the interview summaries, much less object to their introduction, or offer views on weight to be given to the evidence. Inspection of the hearing record confirms that Nkenglefac was not given the opportunity to explain perceived inconsistencies in the government summaries of his prior uncounseled interviews.5 Indeed, the voluminous testimonial record, including extensive government cross-examination and IJ direct inquiry, gives no indication that Nkenglefac had previously made any inconsistent statements, yet the IJ, three months later, determined that “inconsistencies and omissions . . . undermine critical parts of Respondent’s claim” to such an extent that the court denied “Respondent’s application based on lack of credibility.” … The BIA majority—affirming the IJ’s decision—also determined that Nkenglefac’s argument regarding the absence of the CBP and credible fear interviews from the record was “waived” because “the [trial] transcript reflects that [Nkenglefac’s] former counsel never requested that these records . . . be made a part of the record.” However, we fail to understand why Nkenglefac’s counsel should have introduced these government summaries into the record to anticipate and explain later-perceived inconsistencies when they were never identified, referenced, or discussed. It is also worth noting that there is no evidence—beyond the statement of the BIA majority—that Nkenglefac’s counsel failed to preserve this issue on appeal. The issue was discussed at length in Nkenglefac’s appeal brief to the BIA and again in his brief to this court. Furthermore, this observation stands in contravention to existing BIA law that “an adverse credibility determination should not be based on inconsistencies that take an alien by surprise.” Matter of Y-I-M-, 27 I. & N. Dec. 724, 726-29 (BIA 2019) (quote at 726). Notably, the Government’s brief on appeal does not argue that Nkenglefac has waived this argument. … We GRANT the petition for review and REMAND this case to the BIA for further proceedings consistent with this opinion.”

[Hats waaaayyyy off to Homero López, Jr., who reports that he is in touch with his client and is hopeful of bringing him back to the USA. Audio of the oral argument is here.]

—

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Once again, credibility, the problematic issue in this case, is not a profound legal concept. It’s supposedly the “bread and butter of Immigration Judging.” Yet, both the IJs and the BIA continue to often get it wrong. Perhaps “dead wrong” in the cases of asylum seekers! Why isn’t this fundamental flaw at the all-important “retail level” of our justice system receiving the necessary attention and corrections from Garland and the Biden Administration?

As one “Courtside Commenter” said:

I think this is the IJ who retired with a 100% asylum denial rate [actually it was 99.4%, denying 155 of 156 claims she “heard” — but didn’t listen to — over a career that lasted far too long]!And Cameroon is now a TPS country.

This decision is proof perfect of EOIR’s deportation assembly line approach.And I’ve mentioned a number of times the alarming problems with CBP arrival statements noted by the US Commission for International Religious Freedom, an internal government component, which has repeatedly flagged the fact that the resulting “statements” are not the verbatim transcripts they appear to be, and often contain questions that were never actually asked of the respondent.

How bad was this now retired Judge who has been the subject of frequent adverse publicity? See, e.g., https://www.topic.com/your-judge-is-your-destiny; https://www.motherjones.com/crime-justice/2019/07/inside-the-courtroom-where-every-asylum-seeker-gets-rejected/.

As pointed out in the above comment, Cameroon is now a TPS country. Additionally, one of the “five top nationalities” that came before this “asylum denial machine” were asylum seekers from Eritrea. Although they found no success with her, the EOIR statistics for FY 2022 show that that every “merits decision” on Eritrean asylum was granted. There were exactly ZERO, “0” merits denials. See https://www.justice.gov/eoir/page/file/1107366/download.

Thankfully, Judge Reese has retired. But the endemic problems she symbolized, the lack of effective appellate review, and disdain for due process for asylum seekers by the BIA remain overarching problems that Garland has stubbornly failed to effectively address.

Additionally, in another “under the radar yet highly significant problem,” Garland’s OIL within the USDOJ Civil Division continues to “defend the indefensible” coming out of the BIA. This wastes Government and private sector litigation resources, not to mention precious Article III Court time. It also turns due process and immigrant justice in the U.S. into a random game of chance.

Obviously, there is a severe lack of leadership all over the USDOJ under Garland. Moving toward the “halfway point” in the Biden Administration, there still is no appointed and confirmed Assistant Attorney General for the Civil Division!

🇺🇸Due Process Forever!

PWS

05-20-22

🤮INEFFECTIVE ASSISTANCE/DEFECTIVE COURTS — 3rd Cir. Exposes Massive Due Process Failure @ Garland’s EOIR! — St. Ford v. A.G.

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

From Judge Roth’s opinion:

The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers.

Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

Arckange Saint Ford will get a second shot at canceling the Government’s order of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full.

But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing.

. . . .

Here, though it was reasonable to request Saint Ford corroborate his testimony about the identity and motive of his harassers, the IJ did not tell him what corroboration she needed or give him a chance to present that evidence. There is no indication she engaged in the Abdulai inquiry as required before skipping straight to “hold[ing] the lack of corroboration against [Saint Ford].” Id. (alterations adopted). She went from first to third across the pitcher’s mound. Our Abdulai inquiry is there to ensure these important corners aren’t cut.

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

What’s wrong with this picture? Going on two decades after the enactment of the REAL ID Act, this IJ gets basic corroboration wrong on a life or death asylum case. Then, she compounds the error by failing to apply a two-decades old circuit precedent. The case sails through the BIA. Then, Garland’s OIL defends the indefensible. “Corner cutting” has become institutionalized, permitted, and even encouraged in today’s broken EOIR!

Meanwhile, it’s left to Circuit Judge Ambro to do the jobs of Garland, his failed BIA, and an IJ badly in need of remedial training! This is an expert tribunal? This is justice? This is due process? Gimmie a break!

This is squarely on Garland! He enables and defends defective, due-process-denying decisions by EOIR. His grotesque failure to appoint and empower a BIA that will end this nonsense and insist on competent legal performance from ALL Immigration Judges in these life or death cases is disgraceful!

Cases like this also “give lie” to the bogus claims that today’s EOIR is comprised of “experts” who can be trusted to remedy due process defects, model best practices, or (perhaps most absurdly) insure that the rights of all respondents, including the unrepresented, are protected. Why is a Dem Administration running a “due process denial machine?” Why is OIL defending the indefensible? Why is Garland still the AG, despite showing little interest and scant skill in creating a due process/fundamental fairness oriented tribunal at the “retail level” of our staggering justice system!

You don’t have to be a “rocket scientist” to trace the disrespect for the Constitutional, statutory, and human rights of migrants, largely individuals of color, to hate crimes, misogyny, curtailment of voting rights, and disrespect for equal justice and racial justice throughout our nation. The stunningly poor performance of the U.S. Immigration Courts under Garland also sets an unfortunate tone for the staggering and highly politicized Federal Court system from bottom to top!

🇺🇸 Due Process Forever!

PWS

05-19-22

😢SUPREMES SLAM DUNK ON ADJUSTMENT APPLICANTS WITH “NO JURISDICTION” RULING, OVER SPIRITED DISSENT FROM JUSTICE GORSUCH! — Patel v. Garland (5-4)

Associate Justice Neil Gorsuch — Associate Justice Neil M. Gorsuch; photograph by Franz Jantzen, 2017.

https://www.supremecourt.gov/opinions/21pdf/20-979_h3ci.pdf

Held: Federal courts lack jurisdiction to review facts found as part of dis- cretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i). Pp. 6–17.

From Justice Gorsuch’s dissent (joined by Justices Breyer, Kagan, & Sotomayor):

The majority concludes that courts are powerless to cor- rect an agency decision holding an individual ineligible for relief from removal based on a factual error, no matter how egregious the error might be. The majority’s interpretation has the further consequence of denying any chance to cor- rect agency errors in processing green-card applications outside the removal context. Even the government cannot bring itself to endorse the majority’s arresting conclusions. For good reason. Those conclusions are at war with all the evidence before us. They read language out of the statute and collapse the law’s clear two-step framework. They dis- regard the lessons of neighboring provisions and even ig- nore the statute’s very title. They make no sense of the statute’s history. Altogether, the majority’s novel expan- sion of a narrow statutory exception winds up swallowing the law’s general rule guaranteeing individuals the chance to seek judicial review to correct obvious bureaucratic mis- steps. It is a conclusion that turns an agency once account- able to the rule of law into an authority unto itself. Perhaps some would welcome a world like that. But it is hardly the world Congress ordained.

***********************
Justice Barrett wrote the majority opinion.

Interestingly, neither the Respondent nor the Solicitor General defended the 11th Circuit’s decision. So, the Court appointed Taylor A.R. Meehan as amicus to defend that decision. Her “no jurisdiction” statutory argument prevailed.

Looking at rulings like this, the makeup of the Supremes, and the bleak prospects for Article I in an ideologically divided Congress, the composition of the Immigration Courts and the BIA becomes even more significant.

As Justice Gorsuch points out, in many important cases, even the most obvious and egregious mistakes from EOIR Judges will go uncorrected by the Article IIIs. So, getting the results right in the first place and having higher quality appellate review at the BIA becomes even more “life determining.”

As judicial vacancies arise, it’s critical that NDPA members who are eligible to apply do so in large numbers! That also goes for the U.S. Magistrate Judges and the Article IIIs!

🇺🇸Due Process Forever!

PWS

05-16-22

⚖️IMMIGRATION COURTS: Article I Bill Passes Out Of House Judiciary On Party Line Vote!

From ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2022/05/bill-creating-independent-immigration-court-passes-in-house.html

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ImmigrationProf Blog

Saturday, May 14, 2022

Bill creating independent immigration court passes in House

By Immigration Prof

After years of advocacy from theNational Immigration Judges Association (here and here), immigration attorneys (from ABA and AILA), and scholars, Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA), introduced the Real Courts, Rule of Law Act of 2022 (H.R. 6577) that has passed House Judiciary Committeewith a vote of 24-12. It will next move to the House floor.

An section-by-section analysis of the full text legislation is here.

MHC

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

Unfortunately, without any GOP support, this Article I Bill will be DOA in the Senate.

🇺🇸Due Process Forever!

PWS

05-16-21

🗽⚖️ANOTHER BITE OF JUSTICE FOR DV VICTIM: BIA Temporary Appellate Immigration Judge Gabe Gonzalez With An A-B-/A-R-R-G- Remand!

Roberto Blum reports from Houston, TX:

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

Thanks, Roberto!

Just think how much better this system would work if Immigration Judges were getting guidance from the BIA to get these correct in the first place.

Also raises additional questions of why: 1) cases like this aren’t precedents; and 2) so-called “Temporary” Appellate Immigration Judges like Judge Gabe Gonzalez are “outperforming” most “permanent” BIA Judges?

🇺🇸Due Process Forever!

PWS

05-16-22

⚖️🧑🏻‍⚖️BIA APPELLATE JUDGE BETH LIEBMANN ISSUES MATTER OF A-B- REMAND, PROVIDES USEFUL GUIDANCE!

Here’s the decision (unfortunately unpublished):

https://drive.google.com/file/d/15v7-tVnh-eqBWDWgwBE-Wxqx4rNCH_f8/view?usp=drivesdk

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

There is more helpful, practical guidance in Judge Liebmann’s “two-pager” than in most BIA precedents. So, why isn’t this a precedent?

A.G. Garland overruled Session’s abominable, wrong-headed precedent nearly one year ago. Yet, there has been no further guidance from the BIA on the meaning of the “reinstated A-R-C-G-.” Nor, have the so-called “gender-based regulations” ordered by Biden and referenced by Garland ever seen the light of day.

Meanwhile, there are many cases like this out there in the backlog. Most of them could be granted with proper guidance and supervision from a “Better BIA.” No wonder the backlog continues to grow!

My prediction that the “ascension” (she was a “mere TBM” at the time of this particular decision) of Judge Liebmann to join Judge Saenz on the BIA would be a “breath of fresh air” for practitioners appears to be gaining at least some traction. But, it’s going to take more than two well-qualified judges to pull the BIA out of its current “death spiral.”

🇺🇸Due Process Forever!

PWS

05-13-22

⚖️😎GARLAND REVERSES BIA: Mental Health Evidence SHOULD Be Considered In “Particularly Serious Crime” Determination! — Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022)

https://www.justice.gov/eoir/page/file/1504486/download

Matter of B-Z-R-, Respondent

Decided by Attorney General May 9, 2022

U.S. Department of Justice Office of the Attorney General

(1) Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014), is overruled.

(2) Immigration adjudicators may consider a respondent’s mental health in determining whether an individual, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” 8 U.S.C. § 1158(b)(2)(A)(ii); see id § 1231(b)(3)(B)(ii).

***************************************
Notably, the problem with the BIA’s poor decision-making here goes back to the Obama Administration. Their indolent, tone-deaf approach to EOIR helped “set the table” for the later weaponization and abuses by the Trump DOJ!

As A.G. Garland, and several Circuits, point out, there was no discernible rationale for the BIA’s wrong-headed decision to exclude mental health evidence from the case-by-case determination.

What’s the cost of poor decision making by the BIA?

8 years of wrongly decided cases;
Unnecessary circuit splits;
Avoidable remands;
Lack of uniformity;
Wasteful and unnecessary litigation;
Wrongful deportations.

What if the BIA were composed of experts, committed to due process and best interpretations? Wouldn’t the whole system work better?

🇺🇸Due Process Forever!

PWS

05–10-22

🙁“CAT-ASTROPHE” — GARLAND’S EOIR FLUNKS “CAT 101” — Coast-to-Coast Failures in 9th and 1st Cir Show A “Judiciary” With Life or Death ☠️ Authority Lacking In Basic Legal Skills & Competence!🤮

Bob Egelko reports for the SF Chron:

An immigration judge ordered a gay Nigerian man deported over a minor discrepancy. The Ninth Circuit just reversed in a fiery ruling https://www.sfchronicle.com/bayarea/article/An-immigration-judge-ordered-a-gay-Nigerian-man-17151459.php

When a local security brigade in Nigeria learned Peter Udo and his boyfriend were seen having sex in a hotel room, they seized and beat the couple for six hours and later told Udo he should be put to death.

Udo’s mother used her family savings to enable him to flee the country and he wound up in California, where an immigration judge rejected his plea for asylum and ordered him deported because his description of the events gave a false name for the hotel where he had been captured. That order has now been firmly rejected by a federal appeals court.

The judge and the Board of Immigration Appeals, which upheld the deportation order, failed to give any “reasoned consideration” to the evidence Udo presented, the Ninth U.S. Circuit Court of Appeals in San Francisco said Wednesday in a ruling requiring the board to review his claim that he would be tortured if returned to Nigeria.

That evidence included an “excommunication notice,” signed by leaders of the community’s Council of Traditional Rulers, notifying Udo and his family that anyone engaging in homosexual acts is “subjected to public execution” and that his mother and five other relatives were no longer considered citizens of the community.

“Remarkably, the (Board of Immigration Appeals) did not reference the excommunication notice at all” in its ruling that would have returned Udo to Nigeria, Judge M. Margaret McKeown said in the appeals court’s 3-0 decision, which included a copy of the notice.

Udo’s lawyer, David Casarrubias, said the ruling was a victory for asylum seekers.

“The opinion stands for the proposition that although Congress may enact laws that make it harder for asylum seekers to prevail as a result of minor discrepancies in their applications, there are other international laws like the Convention Against Torture that still have teeth,” Casarrubias said.

. . . . .

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

Read the rest of Bob’s article at the link.

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

And things are just as bad on the other side of the country. Here’s what the 1st Circuit had to say about the latest mis-step from Garland’s “Star Chambers” on a life or death CAT matter:

http://media.ca1.uscourts.gov/pdf.opinions/21-1296P-01A.pdf

. . . .

The government does again urge us to construe the BIA as having merely affirmed a finding that it attributed to the IJ

10 For this reason, we need not resolve whether, as Ali contends, the IJ violated 8 C.F.R. § 1208.16(c)(3) by failing to consider all relevant evidence through the way the IJ treated the evidence from Harper in her testimony and March 2020 declaration that bears on Ali’s “security forces”-related ground for CAT-based deferral of removal.

– 30 –

regarding whether it was “more likely than not” that Ali would be subject to abuse severe enough to constitute torture rather than a finding that it attributed to the IJ regarding the limited severity of the abuse that Ali had shown that he was likely to suffer. But, as we explained in connection with Ali’s challenge to the BIA’s “other private actors”-related ruling, the IJ did not make that finding either. And, in any event, as we have noted, that is a strained reading of the BIA’s opinion, given that the opinion expressly quotes only from the portion of the relevant regulations that purports to define how severe abuse must be to constitute torture, see 8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman treatment . . . .”), rather than a regulation concerning how “likely” it must be that the noncitizen will be subjected to abuse that is severe enough to constitute torture, see, e.g., id. §§ 1208.16(c)(2), (4).11

Finally, the government contends that we still must affirm the BIA’s ruling because, although Harper described violence, “she did not describe the injuries to the Somalis she

11 To the extent that the government means to argue here, too, that the BIA itself considered the Harper evidence in question because of the portion of the BIA’s opinion in which the BIA states, “after considering the risk of torture from all sources in the aggregate,” we cannot agree. That statement concerns only what the BIA determined that the IJ considered in making the finding about the severity of the abuse that Ali would face that the BIA attributed to the IJ. But, as we have explained, the IJ made no such finding.

– 31 –

witnessed being beaten or kicked . . . such that the agency could reasonably conclude she provided insufficient detail to show that such abuse by Somali security forces rose to the level of torture or that Ali was at risk that it likely would rise to the level of torture.” But, the IJ did not find that Ali had failed to meet his burden to show that he would likely be tortured by security forces in Somalia on any such basis. Rather, the IJ rejected his “security forces”-related ground for requesting deferral of removal pursuant to the CAT solely because the IJ found that “Harper indicated that the main motivation” of the security forces who “mean to do the respondent harm” is “they are either too busy to protect themselves and therefore they cannot protect other people” or to “harass people based on cultural differences,” such that they would not be acting “with the consent or acquiescence of a public official or other person acting in an official capacity” in visiting any abuse on Ali.

. . . .

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

These are complicated cases. Indeed, the 1st Circuit spent 33 pages analyzing this particular case.

By contrast, a supposedly (but, clearly not) “expert” BIA appears to have taken about 5 minutes to “rubber stamp” the clearly defective denials prepared by staff attorneys in these life or death matters! How is this due process or fundamental fairness? No way!

If this were a law school exam, rather than a life or death “court” case, the BIA’s effort probably would have received a “D-“ or an “F.” Yet, Garland finds this ridiculously deficient level of performance acceptable where “only” the rule of law, constitutional due process, and human lives are at stake!

One might expect this from a GOP AG. But, is this really what human rights advocates and progressives elected Biden to churn out?

I say “No.” This is NOT acceptable performance by the BIA! Nor is it acceptable professional performance by Garland, Monaco, Gupta, Prelogar, and the other members of the “Clueless Crew” supposedly in charge of the DOJ!

⚖️Due process for migrants is due process for all in America!

🇺🇸 Due Process Forever!

PWS

05-08-22

Dan Kowalski reports for LexisNexis Immigration Community:

Yahm v. Garland, unpublished, 5th Cir., 05-31-22

🇺🇸Due Process Forever!

Related posts:

Roberto writes:

🇺🇸 Due Process Forever!

Related posts:

🇺🇸 Due Process Forever!

Related posts:

Lauren Wyatt

Congrats, Lauren!😎👍🏼

🇺🇸Due Process Forever!

Related posts:

Cindy Carcamo reports for the LA Times:

🇺🇸 Due Process Forever! Garland’s dysfunctional, biased, leaderless, soul-less, ethically challenged EOIR, never!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

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Dan Kowalski reports from LexisNexis Immigration Community:

🇺🇸Due Process Forever!

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From Judge Roth’s opinion:

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

🇺🇸 Due Process Forever!

Related posts:

From Justice Gorsuch’s dissent (joined by Justices Breyer, Kagan, & Sotomayor):

🇺🇸Due Process Forever!

Related posts:

From ImmigrationProf Blog:

🇺🇸Due Process Forever!

Related posts:

Roberto Blum reports from Houston, TX:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

🇺🇸Due Process Forever!

Related posts:

Bob Egelko reports for the SF Chron:

And things are just as bad on the other side of the country. Here’s what the 1st Circuit had to say about the latest mis-step from Garland’s “Star Chambers” on a life or death CAT matter:

🇺🇸 Due Process Forever!

Related posts: