"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Federal law says anyone fleeing persecution may request asylum once they reach U.S. soil, no matter how they got there. Successive administrations have attempted to restrict that simple rule, however, desperate to reduce record numbers of crossings that have overwhelmed the immigration system, leaving many to live for years in the United States without a decision in their cases.
. . . .
One border, two realities
The perceived success of Biden’s approach depends on which side of the border the migrants are on.
Brownsville, an American city of 200,000 on the other side of the Rio Grande from Matamoros, Mexico, is officially under a state of emergency. But that emergency has dissipated in recent months.
The streets are quiet, thanks to a 70 percent drop in illegal border crossers since the new asylum rule and other Biden policy changes took effect. City workers greet the relatively small number of newcomers released from holding facilities and escort them to a curtained-off parking garage and to the first bus out of town.
In Matamoros, however, migrants trying to navigate the new rules are squeezing into shelters, sharing hotel rooms, curling up in a large camp on the dry riverbank or under pop-up tents at a grimy former gas station.
On a pedestrian bridge one hot morning in late June, Mexican authorities shooed away those who did not have an appointment through the app — including some Mexicans, even though the rule change is not supposed to apply to them.
“Let’s go, please,” one officer said to migrants who gathered at the Matamoros edge of the bridge. “Now.”
Advocates for immigrants say it is unlawful for officials to block migrants from crossing borders in search of protection — and unfair to presume they can easily navigate U.S. asylum law and appointments via smartphone apps. The process of requesting asylum is supposed to be simple, they said, because lives are at stake.
But advocates are powerless to navigate around the new rules until the court case is resolved.
In the sweltering heat one recent day, Christina Asencio, a lawyer with Human Rights First, tried to explain to migrants in the Matamoros camps how the system is supposed to work.
. . . .
**************************
Read Maria’s full article, one of the more balanced treatments I have encountered, at the link.
A few thoughts:
Even this fine article misses the biggest point: Most asylum seekers want to “do things the right way.” But there has been no “right way” for years because ofthe unlawful and bogus use of Title 42 by both the Trump and Biden Administrations. It’s still being unlawfully restricted by the arbitrary Biden Administration regulations. Yet, remarkably, asylum seekers are willing to risk their lives waiting in Mexico for an opportunity to apply in an orderly, legal manner under a broken and biased system unfairly “rigged” against them!THAT’S the “real big takeaway” about the reduction in unauthorized border crossings. It’s one that that nobody except experts and advocates are willing to fully acknowledge! Indeed, during the Title 42 charade, an asylum seeker’s only chance of getting into the system was to cross without authorization. Otherwise, they would have been summarily returned without any chance to present their claims.
Some asylum seekers will qualify for protection, some won’t. That’s what the legal, asylum system is supposed to determine — in a fair, expert, and timely manner. That our asylum system has become dysfunctional and ludicrously backlogged lies squarely with poor performance by Congress, the Executive, and the Courts, in many cases “egged on” by right-wing nativists’ myths and distortions. Blaming the victims — asylum seekers — for massive USG failures over decades is totally disingenuous!
Statistically, it’s true that most asylum applicants from the Southern Border do not achieve asylum under our current dysfunctional system. But, the question we should be asking is why aren’t more qualifying, given the horrible conditions in “sending countries” and the generous legal standards — including a presumption of future persecution based on past persecution — that are supposed to apply, but often don’t in practice.
One of the most egregious EOIR-led anti-asylum “scams” is abuse and misuse of the “nexus” requirement for asylum to send legitimate refugees back into harm’s way.See, e.g., immediately preceding reference. “Persecution” must relate to race, religion, nationality, membership in a particular social group, or political opinion. But, the asylum statute does NOT require that that be the sole or even the primary motivation for the persecution. It just has to be “at least one central reason.” And, usually, persecution is carried out by the persecutor for a variety of reasons. It’s called “mixed motive analysis” and EOIR Judges, particularly at the precedent-setting BIA, routinely ignore or mis-apply it to deny grantable claims.
Harm resulting from things like “work, poverty, natural disaster, and bad governments” does not automatically qualify an individual for asylum. But, contrary to what many suggest, neither do these circumstances preclude asylum. For example, while a “natural disaster” might not make an individual a “refugee” under law, if that individual were forced to live in a known danger zone or denied life-saving assistance at least in part because of religious, ethnic, or political identity, that WOULD qualify. Was the infamous “Kristallnacht” in Nazi Germany systemic persecution of Jews for ethic and religious reasons? Or was it “mere vandalism, random violence, and hooliganism?” I would say clearly the former. But, I can imagine today’s BIA attributing it to the latter, to deny protection to a large group of individuals. I adjudicated thousands of asylum cases as both a trial and an appellate judge during 21 years at EOIR. I found that harm where a “protected ground” was “at least one central reason” was the rule, not the exception as EOIR tries so hard to make it.
Other often “trumped up” methods EOIR uses for denying valid asylum claims include bogus “adverse credibility” findings; unreasonable “corroboration” requirements; fabricated “reasonable internal relocation” opportunities; nonsensical, ahistorical “changed circumstances” conclusions; ignoring or misconstruing expert testimony; “selective reading” or mis-reading of country background reports; coercive detention in substandard conditions; and restricting or limiting access to counsel. If you think this sounds like a national disgrace on “Garland’s watch,” you’re absolutely right!
Undoubtedly, under a properly functioning system, with true expert adjudicators and judges — those whose career experiences demonstrated sound scholarship and understanding of the life-threatening circumstances of asylum seekers and the inherent limitations of both the Asylum office and EOIR — many more asylum cases from those applying at the Southern Border and elsewhere would be granted.So, Government policies based largely on “deterrence” or on the self-fulfilling prophecy that “few will qualify” should be viewed as fatally flawed. Without a better EOIR and an asylum adjudication system run by well-qualified experts, we can’t possibly formulate rational and humane border policies or indeed workable immigration policies at all. Tragically, we’re a long way from that right now!
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Black Mauritanians and other asylum seekers of color find that the scales of justice are systemically weighted against them when on trial for their lives in AG Garland’s “courts!” Public RealmDanae King Faith & Values & Immigration Reporter Columbus Dispatch
“This data further confirms concerns raised about implicit racial and other bias in credibility determinations in US asylum adjudications,” the report states.
The report notes that Black asylum seekers face different treatment in the immigration system than others, including longer than average detention times, trouble finding accurate and adequate interpreters, different treatment in court, lack of access to counsel, purposefully rushed proceedings, biased judges, wrongful denial of asylum and more.
Lynn Tramonte has seen all those scenarios happen in Ohio.
“In immigration court, it’s almost like you’re guilty until proven innocent and they would rather err on the side of deporting a refugee who was tortured than granting asylum to someone who might be lying,” said Tramonte, director of the Ohio Immigrant Alliance, a group of Ohio immigrants and citizens who work to protect the dignity and rights of all through activism.
Nemecek has also seen judges and government attorneys “team up on (immigrants) and ask all kinds of questions and find them not credible.”
From 2002 to 2022, 713 Mauritanians went before immigration judges in Cleveland, and 443 were denied asylum. Another 28 had another form of relief, such as withholding of removal, and 242 were granted asylum, according to TRAC.
Tramonte wishes judges would do more research on the nations where asylum seekers are coming from.
“They have zero knowledge of documents from other countries or even what it’s like to be tortured,” she said.
A spokesperson for the Executive Office for Immigration Review (EOIR) disputed those claims.
. . . .
***********************
Read Danae’s full article at the link!
“Courtside” and others have been raising these issues for a long time! Yet, Garland has neither spoken out nor taken action to “clean up” courts that every expert would say are “broken” and need major changes, including better-qualified judges who have true expertise in asylum and human rights!
Assistant Attorney General for Civil Rights Kristen Clarke is totally “MIA” on this serious issue and on the racially-driven travesties in DOJ’s “wholly-owned” court system, in immigration detention centers, and at the Southern Border! Associate AG Vanita Gupta, once a civil rights icon, has “vaporized” on perhaps the biggest, potentially solvable, civil rights/racial justice issue facing America! What’s happening here?
I spent years doing Mauritanian asylum cases on the EOIR Ohio Docket (and, to a lesser extent, in the “Legacy” Arlington Immigration Court). Most were clear grants of asylum! Few were appealed by ICE! Almost none were reversed by the BIA! I doubt that conditions have improved materially since then.
Unfortunately, mistreatment of Black Mauritanian asylum seekers by EOIR is nothing new. It has a long and disreputable history going back decades.
In the late 1990’s, my now Round Table colleague Judge Lory Diana Rosenberg and I frequently dissented from wrong-headed denials of Mauritanian asylum claims by our BIA colleagues. See, e.g., Matter of M-D-, 23 I&N Dec. 1180, 1185, 1189 (Schmidt, Chairman, Rosenberg, Board Member dissenting), rev’d sub nom, Diallo v. INS, 232 F.3d 279 (2d Cir. 2000). There, the Circuit, in a decision written by Chief Judge Walker, agreed with many of the points raised by Judge Rosenberg and me in our respective dissents: “[T]he BIA failed to: (1) rule explicitly on the credibility of Diallo’s testimony; (2) explain why it was reasonable in this case to expect additional corroboration; or (3) assess the sufficiency of Diallo’s explanations for the absence of corroborating evidence.”
Judge Rosenberg and I were later “rewarded” by AG John Ashcroft by being “purged” from the BIA, along with a minority of other colleagues who had the temerity to stand up for the legal and human rights of migrants! Folks at EOIR “got the message” that standing up for immigrants’ rights and due process could be “career threatening!”
That, in turn, unleashed a crescendo of sloppy, anti-migrant, dehumanizing decisions emanating from EOIR. Things got so bad so fast that subsequent Bush II AGs Gonzalez and Mukasey were finally forced, under extreme pressure from the Article IIIs, to intervene and put a stop to the most glaring abuses.
But, in fact, the EOIR system never recovered from that debacle. From then on, the BIA has been largely a “captain may I rubber stamp” (credit “Sir Jeffrey” Chase) for DHS Enforcement and each Administration’s political agenda. It’s been a continuous downward spiral, with subsequent AGs either actively encouraging abuses of asylum seekers and other migrants or being “willfully indifferent” to the ongoing legal and human rights disasters on their watches.
It’s interesting how when the “powers that be” ignore abuses, they don’t go away. They just fester and get worse. Garland’s “what me worry” stewardship over EOIR is a classic example.
As for EOIR’s claim that they are providing IJs with “robust” asylum training, in the words of my friend, Kansas City attorney (and former Arlington intern) Andrea Martinez, “I call BS!” The proof is in the results!
My friend and Round Table colleague Judge “Sir Jeffrey” Chase puts it more elegantly:
In stating that the program is “robust” (i.e. fine as is), who among EOIR’s upper-level leadership is enough of an expert in the topic to make that determination? There are actually recent IJ hires with a great deal of expertise in asylum and CAT, but to my knowledge, they are not the ones creating or presenting the trainings.
EOIR’s asylum and CAT training remains insufficient, and the evidence of this can be found in the deluge of Circuit Court reversals, or even from simply reviewing hearing transcripts. Just compare the USCIS Asylum Officer training program with EOIR’s IJ training materials. A particular problem is the failure to properly train new IJs in the case law of the specific circuit in which they sit. Immigration Judges are largely left to their own devices to learn the law properly.
Another example of superior asylum training available “on the market” is that developed by Professor Michele Pistone (a true asylum expert who has taught and inspired generations of attorneys now serving in and out of government) at VIISTA Villanova. I am sure that EOIR could have arranged with Professor Pistone to create a “world class” asylum training program for both new and experienced IJs. Indeed, she would have been a logical choice for Garland to have recruited for a senior position at EOIR.
The talent to fix EOIR exists on the open market. However, EOIR can’t be fixed with the senior management team Garland has put, or in some cases left, in place.
In the meantime, the stunningly poor quality, blatant racial insensitivity, and inept judicial administration Garland tolerates at EOIR will continue to be a millstone around the neck of American Justice and the Democratic Party. To what depths Garland will drag both remains to be seen.
Garland’s dysfunctional and systemically biased Immigration “Courts” are a millstone around the neck for American Justice and Dems! Creative Commons license
Finally, where are progressive human and civil rights stalwarts like Sen. Corey Booker (D-NJ) on this issue? Why haven’t they demanded some accountability from Garland? And, whatever happened to our first African-American Veep Kamala Harris? Does she still exist? What’s more important than racial justice in “life or death courts” wholly controlled by her Dem Administration?
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
Two items from Professor Austin Kocher on Substack:
Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported
Omaha is now the toughest court in the country for asylum seekers, MPI hosts discussion on immigration courts in crisis, interview with an immigration judge, and more.
Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported austinkocher.substack.com • 1 min read
New Research by AILA Reveals Anatomy of an Asylum Case + Online Event
Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden admin’s attempts to speed up asylum cases may be ignoring this reality.
…see more
New Research by AILA Reveals Anatomy of an Asylum Case
J.D. Candidate at Georgetown University Law Center
3d •
Through my internship at the Florence Immigrant and Refugee Rights Project, I observed master calendar hearings in the detained docket in the Florence Immigration Court. I was back in Florence, Arizona, because the court itself is located within the barbed wire of the detention center. Observing the Florence Immigration Court emphasized how dehumanizing removal proceedings can be for detained immigrants. Master calendar hearings are often immigrants’ first interaction with the Court. To start, a guard brought a group of men in jumpsuits to the courtroom and lined them up. The judge read them their rights and then called them individually to discuss their case. Twice I witnessed the wrong person being brought into court where they sat through proceedings until the guards realized and switched them out for the correct person.
The vast majority of Respondents in removal proceedings are unrepresented. There is a blatant information imbalance in immigration court when the immigrant is unrepresented. Oftentimes, pro se detained immigrants do not have access to the resources represented or released Respondents have during their proceedings. Respondents may not know their legal options unless organizations like the Florence Project can speak to them before their hearing and provide them with pro se information packets or represent them. During the hearing, the men did not even have a pen and paper to take notes. Meanwhile, the immigration judge and government attorney have access to technology and a wealth of experience to pull from to make legal arguments.
This is just one example of many – my colleagues and I also observed translation issues and pushback against some men who wished to continue fighting their case. Above all, I’ll leave with this very simple observation: the judge and guards called each man up by his court docket number before his name. If we are to support and uphold the dignity of all people, we must do so especially in systems that look to strip it from them. Providing immigrants with access to a lawyer, if they’d like one, can ensure that people have access to information that allows them to make informed decisions about their case. The Florence Project is one of the organizations working tirelessly to expand access to representation throughout Arizona, and I hope to continue this work after graduating from Georgetown University Law Center next year. #EJAFellowUpdate | Equal Justice America
********************
Congrats to Lauren Iosue, and thanks for becoming a member of the NDPA! 😎 The scary thing: As an L-3, Lauren appears to have more “hands on” Immigration Court experience and a far deeper appreciation of the material, sometimes fatal, flaws in the EOIR system, than Garland and his other “top brass” in the DOJ responsible for operating and overseeing this tragic mess!
Why isn’t “real life” immigration/human rights experience representing individuals in Immigration Court were an absolute requirement for appointment to AG, Deputy AG, Associate AG, Solicitor General, and Assistant AG for Civil (in charge of OIL) in any Dem Administration, at least until such time as the Immigration Courts become an Article I Court removed from the DOJ?
30-years ago, when I was at Jones Day, we were budgeting a minimum of 100 hours of professional time for a pro bono asylum case! That was before the “21st century BIA” added more unnecessary, artificial technicalities to make it more difficult for asylum seekers to win. It’s not “rocket science!” 🚀
Lucy McMillan ESQUIRE Chief Pro Bono Counsel Arnold & Porter Washington, D.C. PHOTO: A&P
All Garland would have to do is reach back into his “big law” days at Arnold & Porter (“A&P”). He should pick up his cell phone and call Lucy McMillan, the award-winning Chief Pro Bono Counsel @ A&P.Ask Lucy what needs to change to get EOIR functioning as a due-process-focused model court system! Better yet, reassign upper “management” at EOIR, and hire Lucy to clean house and restore competence, efficiency, and excellence to his currently disgracefully-dysfunctional “courts!”
As Austin’s posts and the reports he references show, Garland’s indolent, tone-deaf, mal-administration of the Immigration Courts is a national disgrace that undermines democracy and betrays core values of the Democratic Party! How does he get away with it? Thanks to Austin, AILA, Lauren, and others exposing the ongoing “EOIR charade” in a Dem Administration!
As shown by recent “Courtside” postings about the “Tsunami” 🌊 of Article III “rejections” of lousy BIA decisions, throughout America, many, many more asylum cases could be timely granted with a properly well-qualified, expert BIA setting precedents and forcing judges like those in Omaha to properly and generously apply asylum law or find other jobs!Maximum protection, NOT “maximum rejection,” is the proper and achievable (yet unrealized) objective of asylum laws!
Asylum law, according to the Supremes and even the BIA is supposed to be generously and practically applied — so much so that asylum can and ordinarily should be granted even where the chances are “significantly less” than probable. SeeMatter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA 1987).
The problem is that the BIA and EOIR have never effectively implemented and followed the Mogharrabi standard. In recent years, particularly during the Trump debacle, they have moved further than ever away from this proper legal standard while still giving it lip service! Clearly, the IJs in Omaha and other “Asylum Free Zones” are operating outside the realm of asylum law with deadly and destructive consequences. Yet, Garland, a former Federal Judge himself, permits it! Why?
The assumption that most asylum seekers who pass credible fear should ultimately lose on the merits is false and based on intentionally overly restrictive mis-interpretations and mis-applications of asylum law! It’s a particular problem with respect to asylum seekers of color from Latin America and Haiti — a definite racial dimension that DOJ and DHS constantly “sweep under the carpet.” Because of the extraordinarily poor leadership from EOIR, DOJ, and DHS, this “fundamental falsehood of inevitable denial” infects the entire asylum debate and materially influences policies.
A dedicated long-time “hands-on” asylum expert, someone who actually met some of the “Abbott/DeSantis busses,” said that over 70% of those arriving from the border had potentially grantable asylum claims. That’s a far cry from the “nobody from the Southern border will qualify” myth that drives asylum policy by both parties and has even been, rather uncritically, “normalized” by the media.
Fixing EOIR is a prerequisite to an informed discussion of immigration and development of humane, rational, realistic immigration policies. That would be laws and policies based on reality, not myths, distortions, and sometimes downright fabrications.
Competent representation is also an essential part of fixing EOIR. There are ways to achieve it that Garland is ignoring and/or inhibiting. See, e.g., VIISTA Villanova. No excuses!
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
On Saturday, Roger Gregory concluded his tenure as chief judge of the U.S. Court of Appeals for the 4th Circuit. Judge Gregory has ensured the court expeditiously, inexpensively and fairly decided several thousand appeals annually.
President Bill Clinton nominated Judge Gregory in June 2000, but GOP senators ignored the nomination, so Clinton granted him a recess appointment that December. President George W. Bush nominated Judge Gregory in May 2001, and he won confirmation. Judge Gregory was the court’s initial Black jurist, becoming its first Black chief judge in July 2016.
Gregory ensured efficacious implementation of administrative tasks, notably investitures for new active, and retirements for senior, jurists on the 15-member appeals court, plus the nine districts’ many trial court, magistrate and bankruptcy judges. He facilitated professional development of 150 judges and 1,600 court staff.
Judge Gregory also discharged complex, delicate responsibilities, namely investigating and resolving ethics complaints and claims of discrimination, which involved jurists and court personnel. Other complicated, sensitive duties were maintaining the court’s effective disposition of substantial appeals and collegiality as it transitioned from the most conservative to a more progressive appellate court. A crisis arising in Judge Gregory’s tenure was the coronavirus pandemic. He expeditiously organized the 4th Circuit response, skillfully navigating public health dangers and politicization of remedies for those risks.
Judge Gregory exhibited diligence, wisdom and appreciation, showing respect for history, customs and norms, as well as the 1,750 dedicated public servants who assiduously help the court efficaciously resolve large cases. Individuals across the 4th Circuit are indebted to Judge Gregory for his exceptional administration.
Carl Tobias, Richmond
The writer is the Williams chair in law at the University of Richmond School of Law.
************************
Very well-deserved tribute! Thanks for writing it!
The totally dysfunctional U.S. Immigration Courts need leadership like that provided by Judge Gregory. Perhaps, Judge Garland could call Judge Gregory and get him to take over and straighten out EOIR, America’s worst important “court” system. Sadly, to date, Garland has shown little interest in making good on the constitutional guarantee of due process for all persons in the U.S., including immigrants!
Judge Gregory, the first African-American judge on the Circuit, is succeeded by Chief Judge Albert Diaz a 2010 Obama appointee. Judge Diaz becomes the first Hispanic to serve as the Circuit’s Chief Judge!
“The United States’ war in Afghanistan required regional allies willing to aid the effort. One such ally was Shaker Ullah, a Pakistani businessman who sold supplies to coalition forces. This invoked the wrath of the Pakistani Taliban, which demanded exorbitant payments from Ullah under threat of death. Ullah repeatedly refused, and the Taliban attempted to carry out its threat, promising to hunt him until it succeeded. After losing his business, home, and nearly his life, Ullah fled to the United States seeking asylum. The Immigration Judge and Board of Immigration Appeals both recognized that Ullah suffered past persecution entitling him to a presumption that the Taliban would continue to target him if he returned to Pakistan. But they agreed with the government that because Ullah lived in Islamabad (the capital of Pakistan) for a few weeks without the Taliban finding him, he could live in a new area of the country without fear of reprisal. We disagree. Ullah’s brief sojourn to Islamabad—where he never left the house— doesn’t rebut the presumption that a notorious terrorist organization continues to imperil his life. Since the record would compel any reasonable adjudicator to conclude Ullah faces a well-founded threat of future persecution, we grant Ullah’s petition for review, reverse the Board’s denial of Ullah’s preserved claims, and remand with instructions that the agency grant relief.”
[Hats way off to superlitigator Ben Winograd! Listen to the oral argument here.]
“Petitioner Zuowei Chen is a native of China admitted to the United States on a student visa in 2009. Chen now seeks review of a Board of Immigration Appeals order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. If removed to China, Chen fears, he will be persecuted and tortured by Chinese authorities, who in 2008 allegedly imprisoned and violently beat him because of his Christian beliefs and practices. We find there are aspects of the agency’s decision that require clarification before we can meaningfully review Chen’s claims. Accordingly, we vacate the decision of the Board of Immigration Appeals and remand for further explanation, consistent with this opinion.”
Notably, and refreshingly, in Ullah, the 4th Circuit took the unusual step of directing the BIA to grant asylum, rather than just remanding for the BIA to screw it up again! In Chen, Trump appointee Circuit Judge Marvin Quattlebaum was part of the unanimous panel! Condemnation of EOIR’s deficient performance is uniting Article III jurists across ideological lines!
The GOP is “out for Garland’s scalp” for all the WRONG reasons! It’s actually Dems who should be demanding an accounting for his inexcusable, miserable, democracy-eroding (non)performance at EOIR!
Garland’s mess at EOIR isn’t “theoretical,” “academic,” or “speculative!” It’s ACTUALLY endangering lives, eroding democracy, and creating unnecessary chaos on a daily basis! His intransigence is also diverting HUGE amounts of resources that could be used to DEFEND American democracy, rather than seeking to hold a tone-deaf Dem Administration accountable!
In the meantime, Dems are fecklessly moaning and groaning about a lawless and ethics-free Supremes. Yet, a Dem Administration is operating a huge, nationwide “court” system presenting these same problems, in spades!♠️
And, the victims of EOIR’s substandard judging are overwhelmingly people of color, literally fighting for their lives in a dysfunctional system that the Biden Administration is unwilling and/or unable to fix. In these cases, the victims were fortunate enough to be represented by two of the “best in the business,” Ben Winograd and Tamara Jezic. But, too many others face this biased and unfair system unrepresented, a situation that Garland not only has failed to remedy, but has made worse in some ways.What “message, does this send, particularly to the younger cohort of “social justice” voters whom the Dems are counting on for the future?
Following the 2020 election, human rights advocates and experts expected and deserved dramatic, long overdue progressive improvements in justice at EOIR. Instead, Garland inexplicably has retained many of the most regressive features of injustice at EOIR, developed and reinforced during the Trump years. Frustration abounds, while justice for the most vulnerable among us suffers under a Dem Administration! Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
How bad is EOIR under Garland? One informed observer put it this way:
BIA staff attorneys are rewarded for the number of signed decisions per month. With the present make-up of the Board, their only incentive is to crank out denials.
Dems love to talk about “change!” The GOP actually achieves it, even though the results are overwhelmingly negative, regressive, and existentially damaging to democracy! Something’s got to give here!
The 2022 Term ended last week but there already are new immigration cases on the Supreme Court’s docket for the 2023 Term.
Law 360 reports that the Supreme Court on the last day of the 2022 Term agreed to review 1) if Board of Immigration Appeals decisions denying cancellation of removal for exceptional hardship are subject to judicial review and 2) consolidated cases on the sufficiency of notice in removal proceedings.
Issue: Whether an agency determination that the statutory standard of “exceptional and extremely unusual hardship” is a mixed question of law and fact reviewable under 8 U.S.C. § 1252(a)(2)(D), or whether this determination is a discretionary judgment call unreviewable under Section 1252(a)(2)(B)(i) (and not subject to judicial review).
The Court continues to deal with the ripple effects of Pereira v. Sessions (2018), which addressed the sufficiency of notice in removal proceedings.
Issue: Whether the government provides notice “required under” and “in accordance with paragraph (1) or (2) of” 8 U.S.C. § 1229(a) when it serves an initial notice document that does not include the “time and place” of proceedings followed by an additional document containing that information, such that an immigration court must enter a removal order in absentia and deny a noncitizen’s request to rescind that order.
KJ
*******************************
Aleksandra Gontaryuk ESQ Managing Partner AG Law Newark, NJ PHOTO: AG Law
From: Aleksandra Gontaryuk
Sent: Monday, July 3, 2023 4:29 PM
To: AILA New Jersey Chapter Distribution List <newjersey@lists.aila.org>
Subject: Precedential Decision — 3rd Circuit
Hot off the presses. No supplemental notice allowed to cure defective NTA unless there is a change or postponement of time and place in NTA. In this case, my client had a defective NTA, so 3rd Circuit ruled there can be no change or postponement from a defective NTA in the first place when DHS didn’t issue new NTA!! In absentia remanded.
[The case is Madrid-Mancia v. AG, available in full text at the above link.]
Aleksandra N. Gontaryuk, Esq.
AG Law Firm
*******************
Actually, Dems need an AG who WILL WORRY about systematic denials of due process, fundamental fairness, and failure to install best-qualified progressives in the disastrously dysfunctional Immigration Courts! PHOTO: Wikipedia Commons
The notice issue presented by Campos-Chaves and Singh has been to the Supremes, albeit in different forms, twice before recently. The BIA/DOJ position has been emphatically “stuffed” by the Supremes both times! Yet, here we are again with the same backlog-enhancing, due-process-denying nonsense, this time from a Dem AG who was supposed to act like a “real” Federal Judge, not a “stooge” for DHS Enforcement.
The long and short of it is that this third trip to the Supremes on the notice issue was avoidable. That is, if Garland had appointed immigration experts, individuals not afraid to enforce the statute even where it benefits the individual, as it often will if properly and fairly interpreted, to the BIA, long a hotbed of anti-immigrant interpretations of law. Garland continues to enable a system “packed” with anti-immigrant and anti-asylum judges promoted under Trump and largelyretained by Garland. This should outrage all progressives!
Dems continue to fecklessly “wring their hands” about the sharp right turn of the Supremes and the lower Article IIIs and the predictable decimation of individual rights. It all occurred in plain sight and with plenty of advance warning from the GOP as Dems diddled away their chances to stop it.
Dems aren’t going to be able to expand the Supremes, nor are term limits likely to happen. Both would require GOP support, which will not be forthcoming now that they have achieved their long-promised “takeover!” Discussing it is a waste of breath and brain cells. It also diverts attention from the Dems ongoing failure at EOIR.
The Dems best practical chance of reforming the Federal Courts would be to start “at the critical retail level” with what they control and could change tomorrow:The U.S.Immigration Courts housed (however improperly) in the DOJ. Right now they are an embarrassing mess of bad judging, anti-immigrant bias, worst practices, grotesque mismanagement, insurmountable backlogs, and hare-brained gimmicks.
Every day, in this and other forums, we see inspiring examples of the type of extraordinary progressive, creative, courageous legal talent available “in the marketplace.” They are the ones Garland should be recruiting and putting on the EOIR bench at both appellate and trial levels.
We would get an immediate, long overdue, improvement in the quality and efficiency of justice at EOIR. Correct, scholarly precedents would have carry-over into other areas of law and even gain international traction.
And, Dems would be building a “long bench” of “tried and true” candidates for Article III positions in the process! Who knows if and when a chance like this will come again? Yet, Garland and the Dems are squandering it, damaging democracy and humanity in the process! Talk about turning a “win-win” into a “lose-lose!” It’s something that Dem politicos excel at!
Dems failure to institute progressive reforms and bring in expert progressive judges at the court they do control makes the rest of their pronouncements on Federal Court reform meaningless babbling!
Dems “babble on” about Federal Court reform as GOP scores “real life” victories over individual rights and equity. It’s a waste of time, and “task avoidance” by Dems that diverts attention from the major Federal System they own 100% and operate (very badly): The U.S. Immigration Courts @ EOIR! — “Towel of Babel” By Pieter Bruegel The Elder Public Domain
Pay no attention to Dems disingenuous complaints about the Supremes and “Trumpy” lower court judges until they demonstrate the ability and willingness to reform EOIR!
I’m sure many of you remember a childhood game called “Mother, May I?” An authority figure would say, “Jeff, take two giant steps forward!” But before doing so, the player would have to ask “Mother, may I?” Those two giant steps could only be taken if the response was “Yes, you may.” Otherwise, if the player took the steps, they were out.
If we were to take this game, direct the request and reply through an app called CBPOne, and make the stakes life or death, the result would be something very similar to the Biden Administration’s latest regulations governing asylum at the southern border.
The new rules are at odds with U.S. law. Congress has already authorized asylum seekers to take the necessary steps up to the border. The very first sentence of 8 U.S.C. § 1158 (the U.S. asylum statute) says that any noncitizen “whether or not at a designated port of arrival” and irrespective of their immigration status may apply for asylum.
And yet, not Congress but two Executive Branch agencies have now added a “Mother, May I?” type obstacle for those seeking to do what the law has long permitted. Under the new rules, the asylum seeker must first ask through a glitchy government phone app for specific permission (in the form of an appointment) before striding up to the border. Otherwise, the asylum seeker is simply not eligible for asylum, no matter how serious the danger they face if removed to their country.
How can Executive Branch agencies issue regulations that so directly contradict the statute those agencies are charged with enforcing? That question is the basis of a lawsuit filed by the ACLU, the National Immigrant Justice Center, and the Center for Gender and Refugee Studies in U.S. District Court.1
Our Round Table of Former Immigration Judges filed an amicus brief in support of petitioners’ arguments. We are in good company, as the USCIS asylum officers’ union filed a persuasive amicus brief as well.2 This means that groups representing the views of the only government officials authorized to decide asylum claims in this country (i.e. immigration judges and asylum officers) are united in opposing the new rule.
In our Round Table brief, we specifically take issue with the government’s false labeling of the new bar as merely a “rebuttable presumption” of asylum ineligibility.
Real rebuttable presumptions have long existed in our asylum regulations. For example, there is a rebuttable presumption that someone who has been persecuted in the past for reasons that give rise to an asylum claim may be persecuted again, unless major changes have since taken place in their country. There is also a presumption that one whose persecutor is the government of their country can’t find safety by simply relocating within that same country.
As you’ve probably noticed, there is a logic that flows in each of those examples from the known facts to the presumption. It is logical to assume that someone who was harmed before might be harmed again if conditions remain the same. The government may rebut the presumption by showing a fundamental change of the type that would put those fears to rest. There is a similar logic in concluding that a government’s reach extends throughout the country it governs. Again, the government may rebut that presumption through evidence establishing an exception to this general rule. In both of these examples, the fact established increases the likelihood of the fact presumed.
Now let’s return to the new rule. Say that a person faces brutal persecution on account of their political opinion if returned to their country. How does the fact that they couldn’t or didn’t get an appointment through a phone app in any way create a presumption that they are not in need of humanitarian protection? There can’t be a presumption if the fact established (i.e. that the person didn’t obtain an appointment through the app) is completely unrelated to the fact presumed (i.e. the person is not in need of asylum).
I believe it matters greatly whether the rule is considered a bar or a presumption. It is Congress that decides who may apply for asylum in this country. Thus, a regulation that admittedly creates a new bar to asylum (particularly where that bar is in direct contradiction to Congressional intent) is likely to be rejected as ultra vires by the courts. And in fact, a very similar bar to this one published by the Trump Administration was enjoined for just that reason.3 Agencies cannot usurp Congress’s role by legislating in the guise of rulemaking.
By attempting to disguise the new bar as merely a “rebuttable presumption,” the agencies seek to increase the odds of the ban passing muster this time. That is exactly the Department of Justice’s argument in its response brief: that its new rule is completely different from the prior administration’s “bar,” because according to DOJ, the new rule “does not treat manner of entry as dispositive, but instead creates a rebuttable presumption that can be overcome…”4
So the “Mother, may I?” regs clearly overstep the agencies’ legal authority. But do they create an equal barrier for all asylum seekers? The answer is no. As stated, the rules require one intending to apply for asylum to first obtain an appointment. Of course, there are more asylum seekers than there are available appointments. As mentioned, the government app through which one tries to secure an appointment, CBPOne, is full of glitches. As Prof. Austin Kocher recently noted, those glitches have impacted who gets those appointments:
the initial release of CBP One was accompanied by a variety of tech failures that did not necessarily undermine CBP’s ability to fill up its appointments calendar for asylum seekers but did create barriers to entry for migrants who were less tech savvy, could not access high-speed Internet, were part of larger families, or, either directly or indirectly, migrants who were darker-skinned or Black.5
That last point refers to the app’s problems with facial recognition that have caused it to reject applicants who are not white.6 As a result of these and other reported scheduling inequities, Sen. Edward Markey wrote to DHS back in February urging the agency to cease use of the app, due to its inaccessibility to many intending applicants, adding that “we cannot allow it to create a tiered system that treats asylum seekers differently based on their economic status — including the ability to pay for travel — language, nationality, or race.”.7
Instead of “ditching the app” as the Senator requested, the agencies instead added an exception to the bar if the noncitizen “demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”8
However, there is a big catch. Pursuant to the rule, this exception is only available to those without an appointment who make their claim at an actual port of entry. But observers at points of entry along the southern border report that “practices by U.S. and Mexican authorities restricted asylum seekers without CBP One appointments from physically reaching U.S. ports of entry to make protection requests.”9 So the exception written into the regs is not available in reality, as one seeking to claim it is restricted from reaching the port of entry where it must be claimed, and is barred from claiming the exception if they cross the border elsewhere.
If you’re wondering how the new system is working out, according to one report, it has resulted in asylum seekers on the Mexican side of the Laredo port of entry being robbed, kidnapped, and held for ransom.10 Another article described how some of those “lucky” enough to have obtained CBPOne appointments at Laredo claimed “that Mexican officials in Nuevo Laredo, across the border from Laredo, Texas, had threatened to hold them and make them miss their scheduled asylum appointments unless they paid them.”11 As a result, CBPOne appointments were temporarily suspended for the Laredo port of entry.
One excluded from asylum under these rules may still seek two types of lesser protections called withholding of removal.12 Oddly, under U.S. law, these alternative protections are much more difficult than asylum to qualify for, yet provide far fewer benefits. Asylum is an actual legal status which extends to the spouse and minor children of the asylee, allows for travel abroad, and puts recipients on a path to permanent residence and then citizenship in this country. By contrast, withholding of removal arises when an individual is ordered deported, and only blocks their deportation to a country in which persecution or torture is likely to occur, but otherwise leaves the recipient in limbo. The protection provides no path to family reunification or permanent status, and no right to travel abroad to visit the family members from whom the recipient is left indefinitely separated.
Nevertheless, withholding of removal does save lives. But not satisfied with simply barring asylum, the new regulations also make these lesser forms of protection far more difficult to access. This is because one must first pass something called a “credible fear interview” in order to even have the right to apply for withholding of removal in this country. As those interviews are conducted within days of the asylum-seeker’s arrival, in custody, often before the applicant has had the opportunity to obtain legal counsel or evidence, and possibly while suffering from the effects of persecution, the credible fear standard was intentionally designed to be a low one. The idea is to allow people who might genuinely be at risk the opportunity to fully develop their cases in a full removal proceeding, while only quickly removing those lacking legitimate claims.
But the new regulations raise the burden of proof by requiring the applicant at this very early stage to demonstrate a “reasonable fear” of persecution, which USCIS describes as the exact same standard required for a grant of asylum – i.e. “well-founded fear.13 Again, the lower credible fear standard being replaced was created solely because it isn’t reasonable to expect someone to prove more under the conditions faced by such recent arrivals. This intended safeguard has thus been completely undermined, as one who might only be a day or two in the country must now present a full-blown asylum claim just to earn the chance to have a hearing.
The new process requires non-lawyers to satisfy a complex legal standard they won’t understand, often without the time to seek legal advice or compile the evidence necessary to meet the heightened burden. I have no doubt that the process will result in genuine refugees being denied protection. And once again, the entire reason for placing applicants at such heightened risk is their not having obtained an appointment on a problematic phone app.
Why does the Biden Administration believe all this is necessary? In a recent column, Jamelle Bouie addressed the vows of some Republican presidential candidates to eliminate the constitutional right to birthright citizenship through executive order.14 In addition to presenting a compelling argument as to why this cannot legally be done, Bouie included in his column a wonderful quote from Frederick Douglass: “The outspread wings of the American Eagle are broad enough to shelter all who are likely to come.”
In case the Biden Administration is wondering if it can champion that same sentiment today, in lieu of its convoluted attempt to ban protection to those deserving of it under our laws, the answer is: “Yes, you may.”
(Much thanks to attorneys Ashley Vinson Crawford and Steven Schulman of the law firm of Akin Gump for representing the group of former Immigration Judges and BIA Members on our amicus brief in East Bay Sanctuary.)
Copyright 2023, Jeffrey S. Chase. All rights reserved.
Notes:
East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810-JST, N.D. Cal. (Filed May 11, 2023).
See Britain Eakin, “Asylum Officers, Ex-Judges Back Suit on Biden Asylum Rule,” Law360, June 8, 2023.
East Bay Sanctuary v. Barr, 964 F.3d 832 (9th Cir. 2020) (holding that the Trump Administration’s asylum bar was inconsistent with our asylum laws).
Defendants’ Reply Brief, East Bay Sanctuary v. Biden, (June 30, 2023) at 8.
Austin Kocher, “Glitches in the Digitization of Asylum: How CBP One Turns Migrants’ Smartphones into Mobile Borders,” mdpi.com, June 20, 2023, https://www.mdpi.com/2075-4698/13/6/149, section 4.
Melissa del Bosque, “Facial Recognition Bias Frustrates Black Asylum Applicants to US,” The Guardian, Feb. 8, 2023,
One form of withholding covers persecution for specified reasons; the other applies to torture.
See Asylum Officer Basic Training Course Lesson Plan, “Reasonable Fear and Torture Determinations,” (USCIS, RAIO, 2017) at 11 (“The ‘reasonable possibility’ standard is the same standard required to establish eligibility for asylum (the ‘well- founded fear’ standard).”)
Jamelle Bouie, “Opinion: What Frederick Douglass Knew That Trump and DeSantis Don’t,” NYT, June 30, 2023.
JULY 5, 2023
***********************
It’s an existential problem for our nation when a Dem Administration claims as “success:” failure to recognize the rights of asylum seekers, intentionally evading asylum law, and endangering the lives of asylum seekers!
Lest anyone think the confusion, unfairness, and disorder caused by the Biden/Harris failure to implement competent, professional, expert leadership on human rights is “overhyped,” here’s an “in person” report from Professor Lenni Benson of NY Law School, founder of Safe Passage Project, and a widely reknowned “practical expert” on asylum and human rights.
Professor Lenni B.Benson Distinguished Chair of Immigration and Human Rights Law New York Law School Founder, Safe Passage Project PHOTO: NYLS website
Sharing an excellent Blog post by retired IJ Jeff Chase on why the CBP One app may be endangering asylum applicants. See below.
Related to the CBP One app was a hearing I observed last Friday, June 30, 2023 in NY City.
A self-represented individual was asked by the IJ “were you admitted or inspected” by the government, the Respondent through a Mandarin interpreter said “Yes, through the CBP app.” The IJ paused. The OPLA attorney was visible on Webex. She was silent.
The IJ said “I will note your statement for the record, I find you removable as charged for not having been inspected or admitted.” [The Respondent had declined an opportunity to find an attorney.]
I am sure CBP will argue that entry under the app is not an inspection or admission and I haven’t looked carefully at the regulations but the issue is there to perhaps be litigated.
The other interesting twist in this particular case was that the government then told the Judge that she could see the Respondent had already completed biometrics and submitted an asylum application, but no application was in either her file nor the Court’s.
The IJ asked, do you have a copy?
The respondent: “On my phone.”
The IJ set a call-up date hearing to have the respondent print out the application and file it with the court in person.
I didn’t get a chance to speak to the Respondent, but I wondered if he had perhaps thought his interview with CBP was his asylum application or if he had filed affirmatively with USCIS.
Just sharing with this community.
Confusion abounds.
“Confusion abounds!” 🤯Why, rather than clarifying and applying the law, would the Administration intentionally create confusion and a host of unnecessary “litigatable issues?”
Why would they create delay by supposedly having applications for asylum “filed” but unavailable electronically to either ICE or EOIR?
Why didn’t the Administration recruit and hire real “practical experts” like Lenni Benson and her colleagues to straighten out the asylum system at the border, restore the rule of law, and reform and repopulate the critically important, currently dysfunctional, Immigration Courts and the BIA with well-qualified progressive judges, merit-selected experts in human rights and practical problem solving?
Pleased to join my friend “Sir Jeffrey” in giving a big “shout out” to our Round Table colleagues and superstar NDPA attorneys Steve Schulman, Ashley Vinson Crawford, and their pro bono team at Akin Gump for representing us on the amicus brief in East Bay Sanctuary!
*********************
Anybody naive enough to believe the “party line” from Administration wonks about “success at the border” should heed this “hot off the presses” report from Mica Rosenberg @ Reuters. It confirms the legal and humanitarian disaster at the border resulting from two plus years of mismanagement of asylum by Mayorkas, Garland, and the rest of the Biden immigration politicos who havefailed to undo the humanitarian and legal mess left behind by White Nationalist Stephen Miller and the rest of the Trumpist scofflaws!
Mica Rosenberg National Immigration Reporter, Reuters
Mica writes:
We examined the impact of the Biden administration’s new asylum regulation at the U.S.-Mexico border after it replaced the COVID-era Title 42 expulsion policy on May 11.
U.S. officials have said the regulation and other Biden immigration policies, that have opened new legal pathways to the US, have dramatically reduced the number of illegal border crossings.
But in the first month of the new policy, Reuters interviews with more than 50 migrants, U.S. and Mexican officials, a review of court records and previously unreported data found:
More than 100,000 migrants waiting in northern Mexico, many trying to snag an appointment on an oversubscribed government run smartphone app; a sharp drop in people passing their initial asylum screenings; more people in detention and tens of thousands of deportations.
My colleagues visited the mile-long migrant camp in Matamoros, across the river from Brownsville, Texas, where conditions are deteriorating, including cases of sexual assault in the camp, and we also spoke to a father who crossed the border but was speedily deported while his family was allowed into the US.
The report at the above link has many photos illustrating both the cruel stupidity of the Biden program and the amazing resilience of those still hoping, against the odds, to have their legal rights respected and protected by the USG.
Thanks, Mica, for “telling it like it is” and penetrating the “bureaucratic smokescreen” thrown up by the Administration to cover its misdeeds and human rights abuses!🤮
In recent years, the [GOP’s] blind loyalty to Trump’s radicalism – especially his election lies – has caused it to even challenge the structure of democracy. A sense of national crisis and imminent political extinction, for example, ran through Trump’s rhetoric in the aftermath of the 2020 election, prompting some of his followers to use violence as a way of settling their political grievances on January 6, 2021.
Conservative Supreme Court decisions over the last two years have been especially hard for liberals to accept because they believe that the current majority is ill gotten.
The right’s dominance of the court happened in large part because then-Senate Majority Leader Mitch McConnell refused to even grant a confirmation hearing to Obama’s final pick for the top bench, Merrick Garland, who now serves as attorney general in the Biden administration. This allowed Trump to name Justice Neil Gorsuch as his first Supreme Court nominee in 2017. But McConnell later turned his back on his own questionable principle that Supreme Court nominees should not be elevated in an election year by rushing through the confirmation of Trump’s final pick, Amy Coney Barrett, in 2020 – which enshrined the current 6-3 conservative majority.
The move not only confirmed Trump’s status as a consequential president whose influence will be felt decades after he left office. It cemented McConnell among the ranks of the most significant Republican Party figures in decades and ensured conservative policies will endure even under Democratic presidencies and congressional majorities.
Recent revelations about questionable ethics practices by some of the conservative justices have further fueled fury about the legitimacy of the court among liberals.
But not all of the court’s recent decisions have infuriated the White House and Democrats. Earlier this week, for instance, liberals were hugely relieved when the court rejected a long-dormant legal theory that held that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections. The so-called Independent State Legislature Theory, a favorite of the Trump campaign, had led to fears that Republican state legislatures in some states could simply decide how to allocate electoral votes regardless of results.
Still, the broad trajectory of the court – on issues including gun control, race, business, regulation, climate and many other issues – is firmly to the right.
*****************
It’s no coincidence that the Trumpist far-right assault on democracy began during the 2016 campaign with unprovoked attacks on Mexican migrants and bogus claims about the border and immigration. It was skillfully, if corruptly, followed up with weaponization of the immigration bureaucracy and packing of the Immigration Courts by the likes of Miller, Sessions, Barr, and Cooch.
We have seen the GOP’s assault and dehumanization of migrants carry over into attacks on a wide range of disadvantaged groups in American society including African-Americans, Hispanic-Americans, Asian-Americans, Muslim-Americans, women, the LGBTQ+ community, and many others.
Although the Supremes have held that every “person” in the United States is entitled to due process under law, that concept is ludicrous as applied to the U.S. Immigration Courts, where anti-asylum, anti-immigrant, pro-DHS bias still drives much of the decision making, prosecutors appoint the judges and write the rules, the Government can change results that don’t match its political agenda, and individuals are on trial for their lives without a right to appointed counsel or many times even the ability to fully understand the proceedings against them. Predictably, the overwhelming number of individuals stuck in this abusive system are persons of color, many women and children!
This is “colorblind” American justice? Gimmie a break!
Although Dems acknowledged many of these outrageous defects in the Immigration Courts while campaigning for votes in 2020, once in power, they have shown little inclination to correct this unacceptable situation that undermines our democracy.
In particular, given a chance to reform the Immigration Courts, re-compete on a merit basis judicial positions filled under questionable procedures (at best) during the Trump Administration, bring in competent judicial administrators laser-focused on due process and best practices, and remake the Immigration Courts into a bastion of great progressive judging —driven by due process and equal protection, Garland and the Dems have whiffed. In that way they have largely followed the Obama Administration’s failure to take seriously due process for persons who happen to be in Immigration Court.
The failure of Dems to take immigrant justice seriously, and their inexcusable blown opportunity to reshape the Immigration Courts into a training and proving ground for the best and most qualified candidates for Article III judgeships ties directly into the anti-democracy shift in the Article IIIs and the GOP’s ability to carry out its right-wing agenda through a Supremes majority highly unrepresentative of Americans and our values.
An informed observer might well wonder “If the Dems are unwilling and unable to reform and improve the Federal Courts they do control — and apparently are ashamed of the progressive values they espouse — how will they ever counter the right’s anti-democracy agenda?”
Hello Judge, it has been a while since I reported from Houston. Although I have not reported, I have kept reading (and learning from) your writings. So it was a pleasant surprise when I recently came across some BIA decisions and saw your name written on them.
They are Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995) and Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).
You see, I was preparing for a individual hearing on the merits, where the client, a 65-year old Mexican national, who has lived in the U.S. since about 1979, and was admitted as a Legal Permanent Resident in 1991, was found to be deportable under INA section 237(a)(2)(b)(i) due to a controlled substance conviction from 1994. His relief: Section 212(c).
The saga started in early January 2012, when he was encountered by ICE, was detained, and placed into removal proceedings. The firm I work for began to represent him at that point. While waiting for his detained merits date, the client suffered a medical condition and was not expected to survive, so ICE released him to family members, essentially so he wouldn’t die in their custody. However, he did not die, he survived, and made a full recovery.
Fast forward to today. Ever since his release, his case got stuck in the “aimless docket reshuffling” that you so often write about. It was not until today, June 28, 2023, that he finally got his day in court for an immigration judge (IJ) to consider his case.
Not knowing whether the assigned IJ or DHS trial attorney (TA) would have any experience with Section 212(c) because this is an old type of relief that is not very common anymore and also due to the hostility often encountered at Houston EOIR, I prepared for the worst case scenario, and feared that the client might not get a fair shake.
Fortunately on the day of trial, I saw an experienced TA was representing the government. Before the IJ went on the record the TA and I discussed the case, and the TA told me that he did not have any issues with the case. I asked if he would stipulate to a grant of relief and he said yes, but warned the IJ might still want to take testimony. The IJ came on the record shortly thereafter, and asked if we had any agreements, at which point I told the IJ that we had an agreement for stipulation to a grant of relief because the evidence submitted was sufficient to carry our burden. The TA confirmed our agreement, and the IJ responded that she had reviewed the record, and also agreed that the client was eligible and deserving of relief because of his long-time physical presence, the conviction was very old, and the client had not had any recent criminal history.
In less than 5 minutes, this case that had been pending over 11 years and 5 months (or about 4,184 days), was resolved by agreement of all parties! The client was stunned and did not even know what happened. He did not expect it to be this fast after waiting so long. The client confided in me that his mother passed away a few days ago in Mexico, and he had been very worried because all of his witnesses (family members) went to Mexico to attend the funeral and were not available to testify on his behalf. I remembered something my grandmother would tell me as a child, that when a close loved one dies, they go to heaven and become your guardian angel, so I thought… just maybe… his mother had been his guardian angel today and whispered in the TA and IJ’s ear before the hearing.
In all seriousness, I ask myself (as this is not the only case I have had that has been pending for over 10 years, only to be resolved by stipulation at the final hearing in less than 5 minutes) how much $$$ is the government spending to fight a case like this for more than a decade–only for it to be resolved in 5 minutes of discussion. (Of course if it had not been resolved favorably, we would have continued litigating the case and appealed to the BIA, something that under current wait times would last another 3 or more years and who knows how much more resources). I imagine that between the IJ and TA’s salary, the court staff, support staff, and even utilities of operating a court, the price tag might be well above $100,000 for a case like this. This is not sustainable.
I asked the client for permission to share the photo we took after the hearing, and if I get the permission I will share it with you.
I am glad the case was resolved favorably by agreement, however, I was ready to use your cases to help defend my client.
DPF!
RB
************************
Love this, Roberto! Makes my day! Good precedents, great scholarship, collegiality, good judging, teamwork combining to make the system work in a just and humane manner! Thanks for forwarding and DPF!
Matter of Arreguin, written by the late Judge Fred W. Vacca, was one of the first precedents issued, in Volume 21 of the I&N Dec., during my time as BIA Chair. That Volume also reflected the “new style” of BIA precedent format with the “bound volume” citation and pagination available in the “slip opinion” and the individual author of the majority and separate opinions clearly identified.
Always gratifying to see that the now “old” precedents turned out by the long-gone “Schmidt Board” still have something to say and teach. It was a time when intellectual dialogue and meaningful debate of important issues was encouraged, rather than being discouraged and avoided as has happened in today’s “assembly line culture” at EOIR!
Additionally, Roberto’s report raises a continuing question. What if rather than misusing EOIR as a “deterrent,” and thereby engaging in “Aimless Docket Reshuffling,” Garland and the other “powers that be within the Administration” returned EOIR to its original purpose of insuring due process, fundamental fairness, and best, most efficient judicial practices?
I’m sure there is lots of “low hanging fruit,” 🍒exemplified by this case, that could be prioritized for quick disposition or reassigned to a better-functioning version of USCIS for more efficient completion. Indeed, with guidance and some institutional discipline by a “Better BIA” of true asylum expert Appellate Judges, I’d guess that the majority of the hundreds of thousands of asylum cases pending for more than two years could be granted without full hearings, either at EOIR or a better functioning Asylum Office. Additionally, many of the long-pending “Non-LPR Cancellation Cases” now clogging the EOIR docket could be more efficiently handled by a better functioning and better staffed USCIS.
It appears that nobody with any realistic vision of what the future could and should look like, and an appreciation of both the cosmic importance and great positive potential of a functional EOIR, has paid any attention to 1) the composition of the EOIR backlog, 2) the abundant opportunities for positive resolutions that would benefit everyone, 3) the lack of quality control at today’s EOIR, and 4) the glaring absence of practical problem solving skills among senior EOIR management and the BIA (not to mention DOJ management and leadership in this area, such as it is).
BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees! Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”
Eric Suarez ESQUIRE Partner Sanabria & Associates PHOTO: Firm website
***************************
EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!
In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!
The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.
Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations.
The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.
Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.
Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, andwidely-acknowledged qualifications for these critically important judgeships.
Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’
I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:
We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!
Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:
Maybe the Board should read my article on the proper test for nexus:
“We must decide whether Ramírez’s conduct—lying to local authorities about U.S. citizenship—was for a “purpose or benefit under” a particular law. The BIA, relying on its Richmond decision, concluded that Ramírez lied about his citizenship “for the purpose of avoiding removal proceedings.” See In re Richmond, 26 I. & N. Dec. 779, 788 (B.I.A. 2016) (holding that a “purpose” under a law “includes the avoidance of negative legal consequences— including removal proceedings”). The BIA’s interpretation of § 1182(a)(6)(C)(ii)(I) is untenable. We agree with our sister circuit that “the BIA’s construction of the ‘purpose or benefit’ language [is] . . . ‘unmoored from the purposes and concerns’ of the statute.” Castro v. Att’y Gen., 671 F.3d 356, 370 (3d Cir. 2012) (quoting Judulang v. Holder, 565 U.S. 42, 64 (2011)). … We conclude that Richmond’s construction of “under” is unreasonable and do not afford it any deference. Consequently, we reject Richmond’s derivative holding that “[t]he term ‘purpose’ . . . includes the avoidance of negative legal consequences—including removal proceedings.” … We therefore grant the petition for review and remand to the agency to either grant Ramírez’s application for adjustment of status or explain, consistent with this opinion, why not.”
Trust the BIA under Garland to come up with “teaching examples” of what’s wrong with EOIR!
Just last week we were discussing “Chevron deference” (a/k/a “Article III judicial task avoidance”) in my Immigration Law & Policy class at Georgetown Law. “Unreasonable interpretation” was one of the three ways we discussed for the Article IIIs to avoid giving Chevron deference to the BIA (the other two being “plain meaning” and “not your field of expertise”).
This is a classic (if rather brutal) example of the “unreasonable” exception to Chevron.
One reason why the “21st Century BIA” has become “unmoored” is that it is basically “tethered” to whatever DHS Enforcement wants and what appears to line up with an Administration’s “immigration enforcement agenda.” In other words, the BIA tends to interpret ambiguous statutes with “career preservation” rather than “best interpretations” in mind. That’s generally bad news for individuals seeking due process and fundamental fairness in life or death matters before EOIR!
That’s a chance for NDPA “practical scholar/experts” to start counteracting what has been a two-decade downward spiral of due process, fundamental fairness, and best practices at this oft-ignored “life or death tribunal” with nationwide jurisdiction.
People talk frequently about forward and backward movement in one’s career, but less so about the gift of lateral moves. I have been lucky enough to make at least one facially “lateral” move that drastically changed the scope and reach of my immigration advocacy work: as the first Policy Counsel for Immigration at The Leadership Conference on Civil and Human Rights!
Through the work of incredible jacks-of-all-trades on staff like Rob Randhava, The Leadership Conference has played an integral role in a number of major moments in the immigration space and maintained an Immigration Task Force. The organization wanted to concretize this work by hiring a full-time staffer, and on the heels of my work at the UndocuBlack Network, I felt this role was the right fit. I grew up in a distinctly Jamaican household, visiting our home country most of my childhood summers, but I also sought a sterling education in the Black American experience.
One of my proudest moments at The Leadership Conference was also one of the most complex, challenging moments of my career—trying to connect the dots between seemingly disparate, painful topics to highlight the interconnectivity of our racial justice and immigrant justice movements. For me, the line between the so-called “Great Replacement Theory,” the targeting of Black Americans in Buffalo in May 2022, and the deleterious, disproportionate effects of Title 42 on Black asylum seekers couldn’t have been brighter. I felt The Leadership Conference was perfectly poised to connect those dots in a public way, by co-leading a sign-on letter to the Biden Administration. But I had to make my case with both internal and external partners with care and finesse, drawing on all of my education and experiences to guide me. No community wants to feel as though another community is opportunistically seizing a moment to elevate its interests while riding on the backs of others. I am proud to say that I persuaded a number of skeptics, many of whom were rightfully protective of their communities and civil rights legacies, to see the urgency of drawing these connections for those in power. Through this effort I was reminded that the work of connecting the Black diaspora is arduous, but can bear powerful fruit.
I’ve said it many times: There will be neither racial justice nor equal justice for all in America without justice for migrants!
Breanne obviously “gets it!” So do leaders like Cory Booker (D-NJ).
Sadly, however, many Democrats, including notable African-American leaders like President Barack Obama, Vice President Kamala Harris, AAG Civil Rights Kristen Clarke, and former AGs Eric Holder and Loretta Lynch don’t! They all blew or are squandering opportunities to make due process and equal justice for asylum seekers and other migrants a reality, rather than a hollow, unfulfilled promise!
In particular, the “intentional tone-deafness” of the Biden Administration on treatment of asylum seekers and other migrants of color has been astounding and shocking! Speaking out for justice for George Floyd and others while denying due process and the very humanity of Blacks and other people of color seeking legal asylum at the Southern Border is totally disingenuous and counterproductive!
Additionally, while there recently have been some improvements in merit-based selections by AG Garland, the U.S. Immigration Courts, including the BIA, are still glaringly unrepresentative of the communities affected by their decisions and the outstanding potential judicial talent that could and should be actively recruited from those communities. An anti-immigrant, pro-enforcement, uber-bureaucratic “culture” at EOIR, which metastasized during the Trump Administration, discouraged many well-qualified experts, advocates, and minorities from competing for positions at EOIR.
The inexplicable failure of Vice President Harris to establish herself as the “front person” to actively encourage and promote service in the Immigration Courts among minorities and women is highly perplexing. Additionally, the failure of the Biden Administration to recognize the potential of the Immigration Courts as a source of exceptionally-well-qualified, diverse, progressive, practical scholars for eventual Article III judicial appointments has been stunning!
Meanwhile, for an “upgrade” of the struggling EOIR, one couldn’t do better than Breanne Palmer: brilliant practical scholar, forceful advocate, courageous, creative innovator, and inspirational role model. As Breanne says on her website:
I try to live by one of Audre Lorde’s creeds:
“I am deliberate and afraid of nothing.”
Sure could use more of that intellectual and moral courage and “leadership by example” on the bench at EOIR! And, as I mentioned yesterday, there are or will be more judicial positions available at EOIR at both the appellate and trial levels. See, e.g., https://wp.me/p8eeJm-8KK.
Thanks Breanne for choosing to use your tremendous skills and abilities to further due process, equal justice for all, and racial justice in America. So proud of you!
Don’t just complain about the awful mess @ the BIA! Get on the appellate bench and do something about it! Public Domain
Summary
The Executive Office for Immigration Review (EOIR) at the Department of Justice (DOJ) is seeking a highly-qualified individual to join our team of expert professionals who serve as Appellate Immigration Judges.
This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.
Although there was no formal announcement from EOIR, it appears that Appellate Immigration Judge William Cassidy has finally retired from the BIA. As many of you know, Judge Cassidy, appointed by AG Billy Barr, was notoriously hostile to asylum seekers and to a fair application of the generous well-founded-fear standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonsecaand by the BIA in Matter of Mogharrabi. His “final” TRAC Immigration asylum denial rate as an Immigration Judge in Atlanta was an appalling and bone-chilling 99.1%! https://trac.syr.edu/immigration/reports/judge2022/00004ATD/index.html.
This is a chance for a “real judge” with impeccable academic knowledge, practical solutions, and actual experience representing asylum applicants in the EOIR quagmire to bring some long-overdue and absolutely essential positive, progressive, change to the BIA – a group overall known for its too-often stilted, sloppy, improperly pro-Government, “go along to get along,” “don’t rock the boat by standing up for due process and human rights” decision-making.
The BIA’s lousy performance on the “stop time rule,” where they were twice rebuked by the Supremes for ignoring the language of the statute and the Court’s own holdings, is a classic example of why we need fundamental change at the top of EOIR. This substandard performance generated more unnecessary backlog and “Aimless Docket Reshuffling” in a system that can ill afford it (2 million case backlog). It also created unnecessary confusion and uncertainty in a situation where clarity was both required and achievable. I daresay, it’s hard to imagine any NDPA “practical scholar” getting sidetracked the way the BIA did in its misguided rush to please DHS Enforcement and its political “handlers” at DOJ!
Also, because of “jurisdiction stripping” legislation over the years, limiting the review of the Article IIIs in many areas, the BIA often represents the last realistic chance for individuals to obtain justice and fair treatment!That the BIA too often acts like an “assembly line,” doesn’t diminish its potential to become part of the solution rather than a source of further problems and unfairness.
Don’t let this important Federal Judgeship, with real life or death power over the lives of individuals and the future of our democracy, go by default to another “insider” or asylum denier.
I hear complaints from practitioners nationwide about the BIA’s poor scholarship and failure to issue realistic, positive guidance. But, it’s not going to change unless the “best and the brightest” from the NDPA apply for these critical jobs at EOIR and become agents of change.
Don’t let this chance go by to make a difference in the lives of others and to use your hard-earned expertise and practical skills to fundamentally change our failing U.S. judicial system — starting at the critical “retail level.”
The deadline is July 5, 2023, conveniently during the July 4 holiday. But, don’t let mindless bureaucratic tactics and feeble efforts at recruitment deter you. Force the USG to recognize and employ “judicial excellence” – once the “vision” of EOIR (before “good enough for government work” became the motto). I urge well-qualified minority candidates to apply for this key position!
Roberto Blum, Esquire, reports from Houston:
