ICRC: “Migration is not going to stop. If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”

Reuters reports:

https://www.theguardian.com/world/2022/mar/24/migration-violence-mexico-central-america?CMP=Share_iOSApp_Other

Waves of migration through Mexico and Central America, and people who go missing, will increase in 2022 due to high levels of violence in the region, the International Committee of the Red Cross (ICRC) said.

Battle-scarred ghost town bears mute witness to Mexico’s drug wars

“In many countries, violence is wreaking more and more havoc, and that’s why there are more and more migrants,” ICRC representative Jordi Raich told Reuters in an interview Wednesday. “And it’s not a situation that is going to improve or slow down, not even in the years to come.“

Immigration authorities in Mexico detained 307,679 migrants in 2021, a 68% increase compared with 182,940 detentions in 2019, according to government data.

Shelters in Mexico were completely overwhelmed last year, filled with frustrated migrants unable to continue their journey to the United States, Raich said.

Many migrants get “stuck” along Mexico’s southern or northern borders, Raich said, where they face “enormous economic constraints” and are able to find only basic services.

The administration of Joe Biden has faced record numbers of migrants arriving at the southern border and has implored Mexico and Central American countries to do more to stem the wave.

Disappearances in the region have not slowed either, the Red Cross said in a report released Thursday. Mexico recently surpassed 100,000 people reported missing in the country.

In El Salvador, 488 missing person cases remain unsolved, and in Guatemala, the number of missing women rose to six a day, the Red Cross report said.

Raich said it will be difficult to respond to the root causes of migration immediately. A joint effort among countries like El Salvador, Guatemala and Honduras is necessary, he added.

“Migration is not going to stop,” Raich said. “If you try to prevent it or strictly regulate it, people start to pile up at the borders, which is happening in Mexico and other countries.”

Meanwhile, the Biden administration on Thursday rolled out a sweeping new regulation that aims to speed up asylum processing and deportations at the US-Mexico border, amid a record number of migrants seeking to enter the US.

The announcement of the new rule came as US officials are debating whether to end a separate Covid-era policy that has blocked most asylum claims at the border. The asylum overhaul could provide a faster way to process border crossers if the Covid order is ended.

. . . .

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

Read the full article at the link.

Cruelty, walls, detention, family separation, border militarization, expedited hearings — they aren’t going to stop human migration. We will be able to increase border deaths, expand the scope of “black market migration,” increase our “underground population,” and enrich human smugglers.  Good policy? 

Meanwhile, it’s obvious that the “disingenuous internal debate” on Title 42 has nothing whatsoever to do with public health and everything to do with whether continued illegal and immoral suspension of asylum protections at the border will prove politically advantageous to the Biden Administration. It won’t! It might, however, cost Dems support among progressives.

How dishonest and unethical is the Biden Administration’s discussion of violating the law? (Do we actually have an Attorney General?) According to the WashPost, scofflaw Biden Administration officials actually are considering lifting Title 42 for families, but not for single males! https://www.washingtonpost.com/national-security/2022/03/24/border-biden-migrants-influx-pandemic/

There is, of course, no known medical evidence that “single males” present a greater COVID threat than families! Indeed, there is no known medical evidence to suggest that any potential asylum applicant is a threat to the health and safety of the US.

The whole thing is a deadly farce! Why aren’t Hill Dems calling for oversight of Garland’s sitting by and watching while the law and ethics are pulverized around him? Or worse yet, what about his Department’s defense of abrogation of our laws? Believe it or not, we actually have asylum and protection laws on the books, duly enacted by Congress, although you’d never know it from Garland’s feckless performance!

Meanwhile, WashPost and other so-called “mainstream media” continue to hype stories about increased border pressure. So, continuing to violate asylum law is a viable alternative “strategy?” Give me a break! How is violating the law going to stop folks from fleeing deadly conditions in their home countries? It won’t, as the ICRC points out above!

What it will do, as also pointed out above, is kill more asylum seekers, subject them to rape, torture and other harm, enrich smugglers, and increase the extralegal population in the U.S.!

Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

It also will increase those waiting in vain at the Southern Border for the reopening of a legal asylum system that has abandoned them! In the words of one expert:

“The conditions are squalid,” said Blaine Bookey, the legal director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, who led a team interviewing dozens of families waiting in Tijuana for the federal government to lift Title 42. “There is real lack of access to sanitation, medical care, adequate food, all of the real basic fundamental necessities.”

. . . .

“There have been some exceptions made for Ukrainians, which we’re happy to see, but the policy should be ended for everyone,” Bookey said. “There was never a public health justification, and there certainly isn’t now.” (WashPost, supra).

Meanwhile, back at the ranch, Sen. John Cornyn (R-TX) babbles nativist nonsense:

Sen. John Cornyn (R-Tex.) said at a committee hearing last week that the influx has “completely derailed” efforts to discuss improving legal immigration to the United States, which he said states such as Texas need to staff hospitals and fill jobs. Border states such as Texas and Arizona are bracing for higher numbers of unauthorized immigrants in coming weeks, he said.

“Rather than deter would-be migrants with weak asylum claims from taking the dangerous journey to the southwest border, the administration has rolled out the welcome mat and created new incentives to illegally immigrate to the United States,” he said at the March 15 hearing before the Senate Judiciary subcommittee on immigration, citizenship and border safety.

To my knowledge, neither Cornyn nor any of his other GOP nativist buddies have ever adjudicated an asylum application. Nor have they represented asylum seekers before the Asylum Office or in our broken Immigration Courts. So, how would that have any idea whether certain asylum claims are “weak” or not? They wouldn‘t!

Moreover, we haven’t had a functioning asylum system at our Southern Border for years. So, how would anyone know how many of the claims are  “weak?” They wouldn’t?

Remarkably, apparently unknown to Cornyn and his scofflaw buddies, we actually have laws to deal with his concerns. When the legal system is “open for business” — which it isn’t now — those claiming asylum at the border are subject to “summary exclusion” by DHS officers. Their claims are then expeditiously reviewed by Asylum Officers for a “credible fear” of asylum. Those who don’t establish credible fear, subject only to cursory review by an Immigration Judge, can be immediately removed by DHS.

Historically, when the system was at least nominally functional, those “passing” credible fear have been turned over to the now dysfunctional Immigration Courts. Under Trump, these “parodies of courts”  were “weaponized” into “asylum killing grounds.”

Sessions and Barr packed their non-independent “captive courts” with “judges” perceived to be “enforcement oriented” and “anti-asylum” — willing to skew the law and facts as necessary to deny and deport. This mess is “led” by an appellate body, the BIA, which contains some of the most notorious members of the “Asylum Deniers’ Club”  — folks who got their appellate jobs under Barr specifically because as Immigraton Judges they denied almost every asylum case that came before them! In other words, even when there was some semblance of a legal asylum system, it was redesigned under Trump to be systemically unfair to asylum seekers, particularly women and applicants of color. For sure, racism and misogyny played into this unseemly scenario.

Remarkably, Garland has chosen to maintain this dysfunctional, biased, and broken system largely in the form it existed and with almost all of the same unqualified or questionably qualified “judges” he inherited from Session and Barr!

While the Administration has announced “new interim regulations” that would allow Asylum Officers to grant meritorious cases without going before Immigration Courts, the system still depends on “guidance,” supervision, and de novo review by the broken, biased, and dysfunctional Immigration Courts running amok under Garland. https://immigrationcourtside.com/2022/03/24/🏴☠%EF%B8%8Fno-surprise-boston-asylum-office-screws-🔩-maine-refugees-☠%EF%B8%8F-part-of-a-serious-national-anti-asylum-bias-largely/

Our broken asylum system can’t and won’t be fixed without dealing head-on with the overarching problem — systemic anti-asylum bias, poor quality decision-making, grotesque inconsistencies, and beyond incompetent administration of our Immigraton Courts by the DOJ!

Remarkably, Garland’s proposed solution is yet another “designed to fail” gimmick — expedite cases in his broken and biased, anti-asylum system! So the solution to a defective court system, infected with anti-asylum bias and poorly qualified judges turning out defective decisions is to make it “go faster!” The new regulations also fail to deal with the huge due process issue of lack of competent representation in the asylum system, particularly the Immigration Courts. Come on man!

We don’t need over 500 pages of new regulations and sophomoric, alternate universe “time limits” for an agency that can’t even find its files! What we need is for Garland to do the job he was hired to do more than a year ago! That’s  “clean house” at the Immigration Courts, bring in competent, fair judges who have experience in Immigration Court and are legitimate, well-recognized asylum experts — starting with a new BIA (save for their one qualified Appellate Immigration Judge Andrea Saenz, a Garland appointee).

Get expert judges, intellectual leaders, and competent judicial administrators into the broken Immigration Court system to provide coherent, practical asylum legal guidance and work with advocates, the Asylum Office, and DHS to get a functional and fair legal asylum system in place and operating smoothly and efficiently at the border. It should already be in place by now. That it isn’t, is entirely “on Garland!”

Then, with experts who actually are committed to fairly and impartially applying asylum law in place, we’ll see, for the first time, how many of the asylum claims are valid and how many aren’t! And, while we’re at it, we might find that many of the “legal” immigrants Texas and the rest of America needs are right there at our borders — just waiting for our legal system to do justice and admit them. Asylum seekers are seeking legal immigration! It the USG that’s acting “illegally” here!

🇺🇸Due Process Forever!

PWS

03-26-22

FINALLY, LEADING DEMS IN CONGRESS DEMAND END TO BIDEN’S TITLE 42 CHARADE! — NDPA  All-Star 🌟🦸🏻‍♀️ Blaine Bookey Speaks Out For Ukrainians & Other Legal Asylum Seekers Being Abused 🤮  By Biden Administration @ The Southern Border!

 

Maria Sacchetti
Maria Sacchetti
Immigration Reporter, Washington Post

MarIa Sacchetti reports for WashPost:

https://www.washingtonpost.com/national-security/2022/03/10/title42-border-asylum-democrats-trump/

Leading Senate Democrats demanded that the Biden administration immediately end a Trump-era policy that blocks asylum-seeking migrants from crossing land borders into the United States, after lawyers said U.S. Customs and Border Protection expelled a single mother of three who had traveled from Ukraine to Mexico seeking refuge.

Senate Majority Leader Charles E. Schumer (D-N.Y.) cited the “desperate” Ukrainian family at a news conference Thursday and said he was deeply disappointed that the Biden administration has dragged out the Trump-era policy, which a federal appeals court in D.C. last week called “questionable.” The Trump administration issued the order two years ago under Title 42, which is the public health code. Since then, officials have expelled more than 1.6 million migrants to countries such as Haiti and Mexico.

“The United States is supposed to welcome refugees with open arms, not put them in additional danger by denying them a chance to plead their case and leaving them at the mercy of criminals and smugglers,” Schumer said, joined by advocates for immigrants. “Now’s the time to stop the madness.”

Courts issue new directives to Biden on border expulsions

Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, added that the policy “has created life-threatening conditions” for migrants. He called on the Centers for Disease Control and Prevention, which issued the order under President Donald Trump and has extended it under President Biden, to rescind it.

. . . .

Sofiia, 34, who asked to be identified only by her first name because she has family sheltering in their basements in Ukraine, said in a telephone interview that her family had enjoyed a good life there. She worked as a Hebrew teacher and lived in her father’s house. They left as bombs grew closer.

“I was seriously afraid for my life and the life of my kids,” she said in English, one of four languages that she speaks.

She said she and her children — ages 6, 12 and 14 — flung suitcases stuffed with clothes and medicines into her old Citroen and drove straight to Moldova, the closest border, and then into Romania, where they traveled to Germany and caught a flight to Mexico. She said that they tried to enter legally twice, once by car and again by foot, and that officials rejected them both times, citing the Title 42 order.

“I was surprised that they don’t even want to listen,” she said. “I was trying to tell them that I have tests and I am vaccinated but they told me, ‘No, no, no, no, no.’”

She said she does not speak Spanish and was crying on the bridge in Mexico when lawyer Blaine Bookey spotted her. Bookey, the legal director of the Center for Gender and Refugee Studies at the University of California’s Hastings law school, was there with her students to aid Haitian migrants facing similar troubles.

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Bookey said Customs and Border Protection told her that they would consider admitting the Ukrainian family. They were planning to try again Thursday, she said, adding that shelters in Mexico are filled with other would-be refugees who are not eligible to enter.

“There’s families like this that are showing up at the border from all sorts of countries from similar levels of violence. They deserve process to apply for asylum,” Bookey said. “This case really brings it home for people how just problematic this policy is.”

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

Read Maria’s full article at the link.

  • Rhetoric over action!
  • “Do as I say, not as I do!”

 

  • More cowardly performances from AG Garland and SG Prelogar who continue to “defend the indefensible,” putting politics over their constitutional duty to speak up for due process, human rights, racial justice, adherence to international conventions, and the rule of law.

 

  • The “COVID emergency” appears to be “over” everywhere in the U.S., even in areas with significant infection rates, EXCEPT for asylum seekers at the Southern Border who never were a major threat anyway.

 

  • “Saying no” to desperate Ukrainian mothers and children seeking refuge in the U.S. That’s ”law enforcement?” That’s how your tax dollars are being spent? Do these count as “border apprehensions?”

The Dem leaders are right to speak out. But, they waited far too long to do so. This travesty has been going on since Day 1 of the Biden Administration.

The only “hero” 🌟 here is Blaine Bookey and others like her who have the guts and courage to stand up for equal justice for all when politicos, judges, and public officials “tank!”

Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

Meanwhile, although the opposition to Biden’s scofflaw policy hasn’t restored the rule of law for most asylum seekers, it might have generated at least a modest reaction. CBS News reports that the CDC has revoked the (bogus) Title 42 authority to bar the entry of unaccompanied children seeking asylum.  News: https://apple.news/Anfp9S-UAQFqT5PWRc-8u2A

This appears to be a response to the attack on this group of vulnerable children by Trump-appointed righty anti-immigrant zealot U.S. District Judge Mark Pittman and his motley gang of  GOP state AGs. See, e.g., https://immigrationcourtside.com/2022/03/05/%f0%9f%a4%aftitle-42-madness-even-as-dc-circuit-bars-returns-to-persecution-or-torture-trump-federal-judge-in-texas-abuses-children%f0%9f%a4%ae%e2%98%a0%ef%b8%8f-circuit-findings-of-ill/

🇺🇸 Due Process Forever!

PWS

03-12-22

🔮PROPHETS: MORE THAN SEVEN MONTHS AGO, “SIR JEFFREY”🛡 & I SAID IT WOULD TAKE MORE THAN HOLLOW PROMISES IN AN E.O. TO BRING JUSTICE  FOR VICTIMS OF GENDER VIOLENCE! — Sadly, We Were “Right On” As This Timely Lament From CGRS Shows!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

The problem is very obvious: The “practical scholars” and widely respected international experts in asylum law who should be drafting gender-based regs and issuing precedents as appellate judges @ EOIR remain “frozen out” by Garland and the Biden Administration. Meanwhile, those who helped carry out the Miller/Sessions misogynistic policies of eradicating asylum protection for women of color not only remain on the bench but still empowered by Garland to issue controlling interpretations of asylum law. 

https://cgrs.uchastings.edu/sites/default/files/Deadly%20Inertia%20-%20PSG%20Regs%20Guide_Feb.%202022.pdf

Deadly Inertia: Needless Delay of “Particular Social Group” Regulations Puts Asylum Seekers at Risk

February 10, 2022

On February 2, 2021, President Biden issued an executive order (“EO”) which directed executive branch agencies to review and then take action on numerous aspects of our shattered asylum system.1 Of particular interest to the Center for Gender & Refugee Studies (CGRS), and many asylum seekers, legal experts, and allies, was a provision ordering the Departments of Justice and Homeland Security to conduct a comprehensive examination of whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule on the meaning of “particular social group,” as that term is derived from international law (emphasis added).2

The deadlines set by the President – August 1, 2021 for the examination of current law on domestic violence and gang claims, and October 30, 2021 for the proposed regulations on particular social group – have come and gone. We are concerned that the administration has offered no indication of its progress on what should be a simple task, given that international law and authoritative international standards on particular social group are clear.3

This reference guide explains why regulations on particular social group are important, why this legal issue has become so contentious, and why there is no good reason for the delay in proposing regulations. We point out that there is a clear path forward for the United States to realign its treatment of asylum claims with established international standards, which is precisely what the EO mandates.

Why are regulations on particular social group important?

While “particular social group” may sound like an arcane topic in the notoriously complex area of asylum law, there is a reason it merited the President’s attention in an EO signed just two weeks after he took office.4 Persecution on the basis of membership in a particular social group is one of only five grounds for refugee status in U.S. and international law and has become the most hotly contested asylum law issue in the United States.

Why has particular social group jurisprudence become so contentious in the United States?

First, the phrase “particular social group” is less intuitively clear than the other grounds for asylum of race, religion, nationality, and political opinion. This ground is understood to reflect a desire on the part of the treaty drafters – and U.S. legislators who incorporated the international refugee definition into our own immigration law – to protect those who don’t fit neatly into the other four categories, and to allow asylum protection to evolve in line with our understanding of human rights. Such refugees might include, for example, women fleeing domestic violence, or LGBTQ+ people persecuted because they do not conform to social norms regarding sexual orientation or gender identity. They might be people fleeing violent retaliation by criminal gangs because they

200 McAllister Street | San Francisco, CA 94102 | http://cgrs.uchastings.edu

reported a crime or testified against a gang member. Or they might simply be related to someone who has defied a gang, and that alone makes them a target.

These people are clearly facing enormous harm, and equally clearly belong to a particular social group under a correct interpretation of the law. 5 But merely belonging to a particular social group does not result in being granted asylum. Only if a person meets all the other elements of the refugee definition, including the heavy burden of showing their group membership is a central reason they will be targeted, will they obtain protection in the United States.

Second, some policymakers and adjudicators fear that if particular social group claims qualify for protection, the “floodgates” will open. The Department of Justice’s Board of Immigration Appeals (BIA) established the legal test for particular social group in 1985 in Matter of Acosta (see below).6 But beginning in 2006, the BIA altered the Acosta test by imposing additional requirements that are nearly impossible to meet.7 The result is that with only one exception, no new particular social groups from any country, no matter how defined, have been accepted in a published BIA decision since that time.

But there is no evidence to support the “floodgates” concern. Decades ago, when women who fled female genital cutting/mutilation were first recognized as a particular social group, some people argued that the United States would be inundated with such claims.8 Those fears never materialized. History shows, and the governments of both the United States and Canada acknowledged at the time, that acceptance of social group claims does not lead to a skyrocketing number of applicants.9

Third, asylum law, including the legal interpretation of particular social group, has been politicized. As part of an overtly anti-immigrant agenda, some politicians have seized upon the floodgates myth to promote increasingly restrictive policies and legal interpretations that depart from international standards. Politically oriented interference with asylum law reached new lows under the previous administration, most notably in 2018 when former Attorney General Sessions overruled his own BIA to issue his unconscionable decision in Matter of A-B-.10

Matter of A-B- was so widely reviled and justly condemned that all major Democratic candidates seeking their party’s presidential nomination in the last election promised to reverse the decision. Doing so was part of candidate Biden’s campaign platform.11 As President he made good on this promise by including the legal questions of domestic violence, gang brutality, and particular social group in the February 2021 EO.

Furthermore, and very much to his credit, Attorney General Garland granted CGRS’s request as counsel to vacate Matter of A-B- in June 2021.12 The law now stands as it did before Sessions’ unlawful interference, with the key precedent case Matter of A-R-C-G-13 recognizing a certain defined particular social group that may provide the basis for asylum for some domestic violence survivors.

However, as explained above, the problem goes beyond Sessions’ decision in Matter of A-B- and stretches back at least as far as 2006, when the BIA began to encumber particular social group claims with additional legal hurdles. As correctly noted in the EO, it is necessary to assess whether U.S. law concerning not only domestic and gang violence claims, but all claims based on particular

2

social group, is consistent with international law. Fortunately there is ample international guidance, which is itself largely based on Acosta, on this exact question.

So why the delay in proposing new regulations?

We can think of no good reason for the agencies’ delay in proposing new regulations on particular social group. From the perspective of both binding international law and authoritative international standards, each of which are named as the framework for particular social group regulations in the EO, the legal analysis is not at all complicated.

To begin with, this is not a new area of the law. The Convention Relating to the Status of Refugees, the source of the refugee definition in which the phrase appears, was drafted in 1951. Our domestic law followed suit in the 1980 Refugee Act. As noted above, the key BIA precedent case interpreting particular social group, Matter of Acosta, was decided in 1985.14 The UN Refugee Agency’s (UNHCR) guidelines on particular social group, which adopt Matter of Acosta, were issued 20 years ago, in 2002.15

Making the job of proposing regulations even simpler, international guidance is clear. It is critical to note that as an inter-governmental organization, UNHCR routinely takes the concerns of governments, including the United States, into account in crafting its legal advice. UNHCR’s guidelines on particular social group were drafted only after a thorough review of State practice, including U.S. law, and an extensive process of external expert consultations with government officials and judges in their personal capacities, academics, and practitioners.16 The consultations process began with a discussion paper on particular social group drafted by a leading U.S. scholar who had previously served as Immigration and Naturalization Service General Counsel.17

How should the United States interpret particular social group to be consistent with international law?

The United States should adopt the “immutability” standard that the BIA set forth in Matter of Acosta, with an alternative – not additional – test of “social perception” which was initially developed by courts in Australia.18 The Acosta test rests on the existence of immutable or fundamental characteristics such as gender to determine whether there is a particular social group. What must be discarded are the BIA’s extraneous requirements of “particularity” and “social distinction.” They have no basis in international law, are not consistent with international standards, are not compelled by the text of the statute, and are not coherent or internally logical. They have themselves spawned an enormous number of confused and confusing cases, including at the federal courts of appeals level, as judges attempt to apply them to real world cases.19

Key Democratic members of Congress with deep knowledge on refugee issues have taken this position, which is consistent with UNHCR’s views. The Refugee Protection Act of 2019, for example, reflects international guidance in its clarification of particular social group.20 Then-Senator Kamala Harris was one of the bill’s original cosponsors.

Additionally, in response to the EO, U.S. and international legal experts have explained that Matter of Acosta provided a workable test, that the BIA’s additional requirements distorted U.S. law in violation

3

of international standards, and that a return to Acosta would be consistent with international standards and offer an interpretation most faithful to the statutory text.21

Why does it matter?

Lives hang in the balance. Women who have survived domestic violence, and all other asylum applicants who must rely on the particular social group ground, are stuck on a deeply unfair playing field. Existing law, even with the vacatur of Matter of A-B-, gives far too much leeway for judges to say no to valid claims. For people wrongly denied protection, deportation can be a death sentence.22

We are concerned that the delay in proposing particular social group regulations reflects an unwillingness on the part of some key actors within the administration to accept that the United States is bound by international law and should realign itself with international standards. The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

1 Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Feb. 2, 2021, 86 Fed. Reg. 8267 (Feb. 5, 2021).

3 Instead, on the one-year anniversary of the EO, USCIS Director Ur Jaddou held a virtual briefing on USCIS’s progress on this and three other immigration-related EOs, but provided no substantive details.

4 The EO otherwise encompasses the enormous operational, logistical, foreign policy, development, and other challenges required to create a comprehensive regional framework to address root causes, manage migration throughout North and Central America, and provide safe and orderly processing of asylum seekers at the U.S. border.

5 For example, when Harold Koh, a senior State Department advisor, resigned in October 2021 in protest over the expulsion of Haitian and other asylum seekers, he wrote: “Persons targeted by Haitian gangs could easily have asylum claims as persons with well-founded fears of persecution because of their membership in a ‘particular social group’ for purposes of the Refugee Convention and its implementing statute. Indeed, this is precisely the issue that faces the interagency group on joint DOJ/DHS rulemaking pursuant to President Biden’s February 2, 2021 Executive Order, which directed examination of whether

 2 EO, Sec. 4(c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall:

(i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in

8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

 4

 the United States is providing appropriate asylum protection for those fleeing domestic or gang violence in a manner consistent with international standards.’” See https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000.

6 19 I&N Dec. 211 (BIA 1985).

7 Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, May 28,

2021, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. 8 Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

9 Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 132-133 (2007), available at: https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1560&context=faculty_scholarship.

10 27 I&N Dec. 316 (A.G. 2018). The applicant was a domestic violence survivor whose asylum claim based on particular social group had been granted by the BIA.

11 “The Trump Administration has … drastically restrict[ed] access to asylum in the U.S., including … attempting to prevent victims of gang and domestic violence from receiving asylum [.] Biden will end these policies [.]” See https://joebiden.com/immigration/.

12 28 I&N Dec. 307 (A.G. 2021). He also vacated other problematic decisions that touched on particular social group and gender claims. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021); Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021).

13 26 I&N Dec. 388 (BIA 2014). 14 19 I&N Dec. 211 (BIA 1985).

15 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, available at: https://www.refworld.org/docid/3d36f23f4.html.

16 UNHCR, Global Consultations on International Protection, Update Oct. 2001, available at: https://www.unhcr.org/3b83c8e74.pdf.

17 T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group’”, in Refugee Protection in International Law: UNHCR’s Global Consultations on International

Protection (Feller, Türk and Nicholson, eds., 2003), available at: https://www.refworld.org/docid/470a33b30.html.

18 This is the approach recommended by UNHCR, n.15 above.

19 Legomsky and Musalo, Asylum and the Three Little Words that Can Spell Life or Death, n. 7 above, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. See also, Sabrineh Ardalan and Deborah Anker, Re-Setting Gender-Based Asylum Law, Harvard Law Review Blog, Dec. 30, 2021, available at: https://blog.harvardlawreview.org/re-setting-gender-based-asylum-law/.

21 Scholars letter to Attorney General Garland and DHS Secretary Mayorkas, June 16, 2021, available at: https://cgrs.uchastings.edu/sites/default/files/2021.06.16_PSG%20Scholars%20Letter.pdf. See also, letter to Attorney General Garland and DHS Secretary Mayorkas, May 27, 2021, signed by 100 legal scholars discussing the “state protection” element of the proposed regulations, available at: https://cgrs.uchastings.edu/sites/default/files/Law%20Scholars%20State%20Protection%20Letter%205.27.21%20%28FINAL%2 9.pdf.

22 When Deportation Is a Death Sentence, Sarah Stillman, The New Yorker, January 8, 2018, available at: https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.

             20 The Refugee Protection Act of 2019, Sec. 101(a)(C)(iii) reads: “the term ‘particular social group’ means, without any additional requirement not listed below, any group whose members—

(I) share—

(aa) a characteristic that is immutable or fundamental to identity, conscience, or the exercise of human rights; or (bb) a past experience or voluntary association that, due to its historical nature, cannot be changed; or

(II) are perceived as a group by society.”

See https://www.congress.gov/bill/116th-congress/senate-bill/2936/text?r=4&s=1#toc- idA272A477BC814410AB2FF0E6C99E522F.

      5

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

“Sir Jeffrey and Me
“Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

You can check out what “Sir Jeffrey” and I had to say back in June 2021 here:

https://immigrationcourtside.com/2021/06/22/sir-jeffrey-chase-garlands-first-steps-to-eradicate-misogyny-anti-asylum-bias-eoir-are-totally-insufficient-without-progressive-personnel-changes/

Unfortunately, my commentary then remains largely true today:

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!

    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.

    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!

    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.

    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 

    • No regulation can bring decisional integrity and expertise to a body that lacks both!

As the CGRS cogently says at the end of the above posting:

The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

If you follow some of the abysmal anti-asylum, poorly reasoned, sloppy results still coming out of Garland’s BIA and how they are being mindlessly defended by his OIL, you know that a “principled application” of asylum law to protect rather than arbitrarily reject isn’t in the cards! Also, as I have pointed out, even if there were a well written reg on gender based asylum, you can bet that the “Miller Lite Holdover BIA” would come up with intentionally restrictive interpretations that many of the “Trump-era” IJs still packed into EOIR would happily apply to “get to no.” 

You don’t turn a “built and staffed to deny in support of a White Nationalist agenda agency” into a legitimate court system that will insure due process and fair treatment for asylum seekers without replacing judges and bringing in strong courageous progressive leaders.

That’s particularly true at the BIA, where harsh misapplications of asylum law to deny worthy cases has been “baked into the system” for years. And, without positive precedents from expert appellate judges committed to international principles and fair treatment of asylum seekers in the U.S., even a well-drafted reg won’t end “refugee roulette.” 

By this point, it should be clear that the Biden Administration’s intertwined commitments to racial justice and immigrant justice were campaign slogans, and not much more. So, it will be up to advocates in the NDPA to continue the “relentless fight” to force an unwilling Administration and a “contentedly dysfunctional” DOJ that sees equal justice and due process as “below the radar screen” to live up to the fundamental promises of American democracy that they actively betray every day!

🇺🇸Due Process Forever!

PWS

02-13-22

🏴‍☠️BIA’S MISOGYNISTIC, ANTI-ASYLUM, IGNORE THE EXPERTS & THE EVIDENCE APPROACH 🤮 REBUKED AGAIN — 9th Cir. Slams BIA Big Time In Rodriguez Tornes v. Garland! — “Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a ‘personal relationship.’”

Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
Woman Tortured
“Nothing to see here, fellas, just the private dynamics of a personal relationship! Tough noogies, baby! You should have been born a man. It’s your own fault! Ha! Mercy and compassion? Those aren’t in any of our precedents, are they?” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Kangaroos
“Expert, what expert? We’re the experts! That is, in misogyny, abuse of asylum seekers of color, and specious legal reasoning. And, Garland is letting us get away with it! Whew, for a moment I thought he might have been a ‘real’ judge, but seems he’s just like us. Think I’ll jump for joy! Four more years of unbridled abuse of the most vulnerable and helpless, and I’ll be eligible to retire! Shooting down female asylum seekers for no good reason is like shooting fish in a barrel, just like Jeffy Gonzo and Billy the Bigot taught us! Wonder how many we can kill this year? Happy hunting! But, let’s stay out of the 9th Circuit. It’s dangerous territory. I hear the 5th Circuit loves misogynists and White Nationalists!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/05/19-71104.pdf

Rodriguez Tornes v. Garland, 9th Cir., 04-05-21

PANEL: Susan P. Graber, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.

OPINION BY: Judge Graber

CONCURRING OPINION: Judge Paez

COUNSEL: Elaine J. Goldenberg (argued), Munger Tolles & Olson LLP, Washington, D.C.; Sara A. McDermott, Munger Tolles & Olson LLP, Los Angeles, California; Richard Caldarone, Julie Carpenter, and Rachel Sheridan, Tahirih Justice Center, Falls Church, Virginia; for Petitioner.

Timothy Bo Stanton (argued), Trial Attorney; Sabatino F. Leo, Senior Litigation Counsel; Office of Immigration

  

ROGRIGUEZ TORNES V. GARLAND 5

Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.

Betsey Boutelle, DLA Piper LLP (US), San Diego, California; Anthony Todaro, Jeffrey DeGroot, and Lianna Bash, DLA Piper LLP (US), Seattle, Washington; for Amicus Curiae National Immigrant Women’s Advocacy Project.

SUMMARY BY COURT STAFF:

Immigration

The panel granted Maria Rodriguez Tornes’s petition for review of the Board of Immigration Appeals’ decision reversing an immigration judge’s grant of asylum and withholding of removal, and remanded, holding that the evidence compelled the conclusion that Rodriguez established a nexus between her mistreatment in Mexico and her feminist political opinion.

The panel noted that under the Attorney General’s recent decision in Matter of A-B-, 28 I. & N. Dec. 199 (A.G. 2021) (“Matter of A-B- II”), in order to establish the requisite nexus for asylum relief, a protected ground (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act. The panel explained that this standard was substantively indistinguishable from this circuit’s precedent. The panel wrote that the fact that an unprotected ground, such as a personal dispute, also constitutes a central reason for persecution does not bar asylum. Rather, if a retributory motive exists alongside a protected motive, an applicant need show only that a protected ground is “one central reason” for his or her persecution.

Observing that this court has held repeatedly that political opinions encompass more than electoral politics or formal

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

ROGRIGUEZ TORNES V. GARLAND 3

political ideology or action, the panel wrote that it had little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes. The panel concluded that Rodriguez’s testimony concerning equality between the sexes, her work habits, and her insistence on autonomy compelled the conclusion that she has a feminist political opinion. The panel also held that the record compelled the conclusion that Rodriguez’s political opinion was at least one central reason for her past persecution. The panel explained that some of the worst acts of violence came immediately after Rodriguez asserted her rights as a woman, and that the fact that some incidents of abuse may also have reflected a dysfunctional relationship was beside the point, as Rodriguez did not need to show that her political opinion—rather than interpersonal dynamics—played the sole or predominant role in her abuse. By demonstrating that her political opinion was “one central reason” for her persecution, the panel concluded that Rodriguez likewise established that her political opinion was “a reason” for her persecution for purposes of withholding of removal.

Because in granting relief under the Convention Against Torture the agency necessarily determined that Rodriguez carried her burden to prove the other elements of her claims for asylum and withholding of removal, the panel concluded that Rodriguez’s petition presented a recognized exception to the ordinary remand rule under I.N.S. v. Ventura, 537 U.S. 12 (2002) (per curiam). The panel explained that because the agency concluded that Rodriguez met the higher burden of establishing that she is likely to be tortured, she necessarily met the lower burdens for asylum and withholding relief of establishing that she has a well-founded fear, or clear probability, of persecution. Similarly, because the Board determined that the Mexican government would acquiesce to

4 ROGRIGUEZ TORNES V. GARLAND

Rodriguez’s torture, the panel concluded that the Board had necessarily decided that the Mexican government would be unwilling or unable to protect Rodriguez from future persecution. The panel also concluded that because the Board determined that it would be unreasonable for Rodriguez to relocate within Mexico to avoid future torture, she likewise could not relocate to avoid future persecution.

The panel held that Rodriguez was thus eligible for asylum and entitled to withholding of removal, and it remanded for the Attorney General to exercise his discretion whether to grant Rodriguez asylum, and if asylum is not granted, to grant withholding of removal.

Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”

CONCURRING OPINION:

PAEZ, Circuit Judge, concurring:

I join Judge Graber’s fine opinion in full. I write separately on a point the court’s opinion does not address. In rejecting Ms. Rodriguez Tornes’s political opinion claim, the BIA suggests that the presence of a “personal relationship” motivation for intimate partner violence implies that there were no intersectional or additional bases for the violence Ms. Rodriguez Tornes experienced. The court’s opinion thoroughly documents the record evidence, which the BIA ignored, demonstrating how Ms. Rodriguez Tornes was targeted for violence by her domestic partners on account of her feminist political opinion. The BIA, however, also ignored extensive record evidence from expert witness Prof. Nancy Lemon, a leading authority on domestic violence, that directly rejects the BIA’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a “personal relationship.”

In contrast to the BIA’s “personal relationship” view of domestic violence,1 Prof. Lemon draws on more than three

1 The BIA cites Matter of A-B-, 27 I&N Dec. 316, 338–39 (A.G. 2018) as the basis for its assumption.

22 ROGRIGUEZ TORNES V. GARLAND

decades of research, writing, legal representation, and lawmaking to explain that “the socially or culturally constructed and defined identities, roles and responsibilities that are assigned to women, as distinct from those assigned to men, are the root of domestic violence.” She analyzes data from the U.S. Department of Justice, Bureau of Justice Statistics and studies from leading medical and social science publications to highlight “compelling evidence that heterosexual domestic violence is, in significant part, motivated by bias against women and the belief that men are entitled to beat and control women.” Prof. Lemon summarizes cross-cultural studies within the United States and internationally that demonstrate “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners.”

In her report, which the IJ referenced in her decision, Prof. Lemon provides a lengthy examination of social science research exploring how particular behaviors exhibited by male abusers—including emotional abuse, sexual abuse, marital rape, economic abuse, blaming, guilt and using children—are each tied to social belief systems that “men are entitled to dominate and control women because the male sex is considered superior” and operate to “exploit the traditional socially constructed roles, identities, duties and status of women in intimate relationships.” In describing the legal, social, cultural, and political structures that lay the foundations for intimate partner violence, Prof. Lemon explains that “domestic violence is not typically caused by behaviors unique to the victim or by inter-personal dynamics unique to the relationship between the abuser and the abused. . . . Rather, heterosexual male batterers have certain expectations of intimate relationships with regard to which partner will control the relationship and how control will be

ROGRIGUEZ TORNES V. GARLAND 23

exercised. These expectations are premised on a dogmatic adherence to male privilege and rigid, distinct, and unequal roles for women and men.”

The record evidence of Prof. Lemon’s rigorous expert analysis undermines the BIA’s unsubstantiated premise that, unless otherwise shown, domestic violence is a purely private matter. The BIA makes no mention of the record evidence of Prof. Lemon’s expert analysis, let alone the decades of publicly available social science research and public policy that all reject the BIA’s outdated view of domestic violence as a quirk within a “personal relationship.”2 Thus, the BIA’s assertion that domestic violence is presumptively a private matter is not supported by substantial evidence.

2 See e.g., Nina Rabin, At the Border Between Public and Private: U.S. Immigration Policy for Victims of Domestic Violence, 7 Law & Ethics Hum. Rts. 109, 111–12 (2013) (“Fifty years ago, domestic violence was widely understood to be a private matter, and the extent to which it was appropriate for the state to intervene was highly contested. Now, domestic violence shelters, state laws and policies specific to the prosecution of domestic violence crimes, and significant state and federal government support for efforts to eradicate domestic violence are all commonplace. Crucial to bringing about this shift in the state’s role vis-à- vis domestic violence victims has been the acknowledgment of the structural roots of domestic violence. When conceived of as a problem tied to gender subordination and pervasive inequality rather than interpersonal conflict, the violence at issue demands a state response.”); Violence Against Women: Victims of the System, 102d Cong., 63 (1991); Elizabeth M. Schneider, The Violence of Privacy, 23 Conn. L. Rev. 973 (1991); Reva B. Siegel, “The Rule of Love”: Wife Beating As Prerogative and Privacy, 105 Yale L.J. 2117 (1996); Leslye E. Orloff & Janice v. Kaguyutan, Offering A Helping Hand: Legal Protections for Battered Immigrant Women: A History of Legislative Responses, 10 Am. U. J. Gender Soc. Pol’y & L. 95 (2001); see generally Am. Br. of the National Immigrant Women’s Advocacy Project.

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

Congrats to all counsel involved for the “good guys.”

Another completely disastrous performance by the BIA!

Bias, sloppiness, legal errors galore, misuse of the appeals process, dissing experts, ignoring evidence, lousy analysis, an ethically questionable remand attempt by OIL, almost every aspect of the unmitigated professional disaster at the BIA and the failed DOJ is on display in this truly terrible parody of justice. These fundamental defects are what has helped generate incredible backlogs that EOIR and DOJ are attempting to cover up and shift blame to the individuals they systematically malign.

This disgraceful muck heap 🤮 won’t be cleaned up by bogus “case processing requirements!” What this system needs is expertise, fairness, due process, quality control, common sense, and human decency — in huge doses! A complete professional makeover!

Among the many good things about the Circuit decision is that it basically limited the impact of the atrociously wrong Sessions “precedent” in Matter of A-B-, even while overlooking the obvious ethical errors in his maliciously biased dicta and the glaring overarching constitutional problem in his improper interference and participation in the quasi-judicial process. This should be Exhibit 1 in why this process needs to be removed from the DOJ, placed in an independent Article I Court, and a new, qualified Appellate Division with real judges — capable of fairly and efficiently adjudicating asylum cases — selected to replace the BIA.

One particularly cruel, senseless, and inane aspect of the BIA’s attempt to “snuff” the respondent’s asylum application: Because of the essentially uncontested CAT grant, she was going to be allowed to remain in the U.S. anyway! So, this was all about illegally depriving an abused refugee woman of color of her ability to get a green card, become eligible for citizenship, and obtain full legal and political rights in our society! 

Compare the time and effort expended by the BIA in trying to deprive this woman of her human rights with the carelessness and sloppiness of their legal analysis. That’s what the racist-driven “any reason to deny” culture created by Sessions, Barr, and their toadies at EOIR does to our justice system! 

Imagine how much different the “retail level” of American justice would look with real judges and professional administrators, committed to due process, fundamental fairness, and best practices, in charge! Amazingly, that’s what the “EOIR Vision” once was, before the forces of darkness, ignorance, and bias took over the system.

Think of how different the skewed asylum statistics would look if we honored, rather than mocked, our legal obligations to asylum seekers. Think of how many more individuals could fairly and efficiently be welcomed into our country at our borders and abroad in a well functioning system, staffed with professionals, that adhered to the rule of law. Think of how a better, more honest, and more professional Immigration Court could provide positive guidance on how to grant needed protection, rather than gushing forth an endless stream of bogus “how to deny” precedents based on racial and gender bias and specious reasoning.

Professor Nancy Lemon
Professor Nancy Lemon
Hastings Law
Photo: law.hastings.com
Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

Obviously, experts like Professor Nancy Lemon, Professor Karen Musalo, and her colleague Blaine Bookey are the types of individuals who should be Appellate Judges at the BIA. The current BIA’s glaring lack of professional competence and its unconscionable abuse of vulnerable asylum seekers, particularly the institutional ignorance and shameless misogyny with which claims by women refugees are treated, has to be one of the darkest and most inexcusable chapters in modern American legal history!

Food for for thought:

  • How would an unrepresented individual, particularly one in detention or stuck on a street corner in Mexico, be able to prepare, document, and present a case like this to a biased court and then appeal successfully to the Circuit?
  • How is this system constitutional in any way, shape, or form?
  • How might the massive investment of resources, time, effort, and expertise in vindicating the legal and human rights of one individual in a broken system be redeployed to promote systemic fairness and efficiency in a court system that actually complied with constitutional due process?

And, we shouldn’t forget that the Biden Administration is still illegally killing off asylum seekers at the border with no due process at all! Cowardly inflicting human misery on the most vulnerable in violation of our Constitution, our laws, and our international obligations has become our “new national pastime!”

We might be averting our eyes from the slaughter now, but history will document and remember what the world’s richest nation did to our fellow humans seeking protection in their hour of direst need! No wonder we must dehumanize “the other” to go on with our daily lives. No wonder that racial and social justice remain elusive, unfulfilled concepts, throughout our society, in today’s “What’s in it for me” atmosphere promoted by many of our politicos!

🇺🇸⚖️🗽Due Process Forever!

PWS

04-06-21

CGRS @ Hastings  🇺🇸⚖️🗽ISSUES STATEMENT ON SUIT TO HALT DYING REGIME’S 👎🏻 “KILL ALL ASYLUM SEEKERS” ⚰️ FINAL REGS — As “Age Of Infamy” 🤮  Draws To Disgusting Close, Questions Remain As To Reversal Of Illegal/Immoral Policies, Accountability For Crimes Against Humanity 🏴‍☠️ By Grauleiter Miller ☠️  & Accomplices! 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

 

https://cgrs.uchastings.edu/news/groups-challenge-trump-administration-rule-gutting-asylum

Groups Challenge Trump Administration Rule Gutting Asylum

Thursday, December 24, 2020

Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.

“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”

The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.

For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.

“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”

The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.

The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.

The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiple courts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.

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

Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.

Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future. 

⚖️🗽🇺🇸Due Process Forever!

PWS

12-27-20

🏴‍☠️KAKISTOCRACY DEATH ⚰️ WATCH: New NDPA Suits Challenge EOIR/DHS Scheme To Implement Grauleiter Miller’s 🤮☠️ Neo-Nazi “Kill Asylum” Regs In Regime’s Final Days! — The Disrespect For The Rule Of Law & Contempt For Humanity Run Deep At Flailing, Failed Agencies!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/lawsuits-challenge-massive-end-of-asylum-rule

Dan Kowalski reports from LexisNexis Immigration Community:

Lawsuits Challenge Massive “End of Asylum” Rule

1.  Pangea Legal Services, et al. v. DHS et al. – “[T]he Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and Sidley Austin LLP filed suit today challenging the mammoth asylum rule in the Northern District of California on behalf of organizational plaintiffs Pangea Legal Services, Dolores Street Community Services, Inc., CLINIC, and CAIR Coalition. The complaint challenges all substantive and procedural merits related issues (it does not challenge the changes to credible fear).” – Blaine Bookey, Legal Director, Center for Gender & Refugee Studies, University of California Hastings College of the Law

2.  Human Rights First v. Wolf – “Human Rights First, alongside counsel at Williams & Connolly, filed a lawsuit challenging the Trump administration’s sweeping new anti-refugee regulation, which will gut protections for those seeking asylum and make it virtually impossible for refugees to secure asylum in the United States.

The lawsuit, filed in the United States federal district court in Washington, D.C., asks the court to intervene and stop the government from enforcing the rule, which is scheduled to take effect on January 11, 2021.

“This rule seeks to end asylum in the United States as we know it. Over the past four years, this administration has employed an array of tools in the hope of dismantling the legal protections Congress provided for refugees and asylum seekers,” said Hardy Vieux, Human Rights First’s senior vice president, legal. “Human Rights First is heading back to federal court to dash that hope. And to affirm that Congress sought to protect people fleeing persecution, not demonize them incessantly, even in the waning days of an administration long consumed with denying protection to those most in need of it. This holiday season, and every season, we shall continue to exalt the rule of law.”

Human Rights First v. Wolf et. al. challenges the Department of Homeland Security and Department of Justice’s rule, rammed through in the waning days of the Trump administration.  The complaint in Human Rights First v. Wolf et. al. can be found here.

Human Rights First, an organizational plaintiff in the suit, argues that the rule violates the Immigration and Nationality Act (INA), the Administrative Procedure Act, international law, and the United States Constitution. In its complaint, Human Rights First argues, “If allowed to stand, the rule will eviscerate the ability of noncitizens fleeing persecution to obtain asylum and related relief in the United States. The United States will instead send refugees back to countries where they face persecution, torture, and possible death—the very outcome Congress expressly designed the INA to avoid.”

The rule, which fundamentally rewrites United States asylum law, will illegally render the majority of asylum seekers ineligible for asylum while tilting every phase of the asylum process in favor of denial and deportation. The rule also upends the procedures for asylum adjudication, further limiting procedural protections for refugees seeking protection in the United States.

The United States government is attempting to make it impossible for our asylum-seeking clients to secure protection. Many of Human Rights First’s clients who have already been granted asylum would, under the rule, be denied protection. One Human Rights First asylum-seeking client stated, “[I]t really disappoints me to learn that the United States, a country [I] have looked up to as a beacon of freedom, is trying to put people like me in harm’s way. I fear for my safety.”

Through this lawsuit, Human Rights First is standing up for the rights of asylum seekers like our clients. Human Rights First’s comments this past summer opposing the draft rule are here.

Human Rights First provides pro bono legal representation for refugees seeking asylum in the United States, in partnership with volunteer lawyers at many of the nation’s leading law firms.  Our refugee clients have fled persecution in Cameroon, China, Cuba, El Salvador, Guatemala, Eritrea, Honduras, Iraq, Nicaragua, Syria, Venezuela, and other countries where their lives and freedom are at risk.’

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

Thanks to all the NDPA heroes involved in this effort!

Hey hey, ho ho, the EOIR Clown Show 🤡🤮 has got to go!

EOIR Clown Show Must Go T-Shirt
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Due Process Forever!⚖️🗽🧑🏽‍⚖️👩‍⚖️🇺🇸

PWS

12-22-20

“CBS HOUR” IS A BIG HIT AT FBA/NY LAW SCHOOL ASYLUM CONFERENCE — Chase, Bookey, Schmidt Entertain, Educate Sell-Out Crowd!

Hon. Jeffrey S. Chase

Blaine Bookey, Co-Director, Center for Gender & Refugee Studies, Hastings Law

Me

“Eric the Cameraman”

NEW YORK, NY, Friday, March 8, 2019.  The “CBS Team,”* Jeffrey S. Chase, Blaine Bookey, and Paul Wickham Schmidt wowed the sellout crowd at the FBA Asylum Conference at NY Law School Friday. Speaking in the coveted “final slot” of the afternoon, the “CBS Gang” gave an enthusiastic audience lots of reasons and ways to go out and oppose former Attorney General Sessions’s perversion of American asylum law in Matter of  A-B-.

In that case, Sessions reversed nearly two decades of progress and consensus in asylum law to “stick it” to Ms. A-B-, a survivor of extreme domestic violence persecution in El Salvador who fled to the U.S., escaping torture and death threats.

Schmidt, a former Immigration Judge in Arlington, Virginia and past Chairman of the Board of Immigration Appeals, led off with a rousing speech blasting Sessions for bias, intellectual dishonesty, and bad lawyering. He agreed with U.S. District Judge Emmet G. Sullivan in the recent case Grace v. Whitaker that much of what Sessions said was non-binding dicta.

Schmidt also formulated seven ways for advocates to challenge the decision. He brought the crowd to its feet with his closing exhortation to what he called the New Due Process Army: “Due Process forever, xenophobia never!”

Bookey, Co-Director of the Center for Gender and Refugee Studies at Hastings Law and a long time refugee advocate, appeared “larger than life” from California through the “miracle of televideo.” She showed a moving video of Ms. A-B- relating the horrible rape, beatings, death threats and abandonment by her government  that forced her to leave El Salvador and her fear that she would be killed upon return.

Bookey also pointed out that this isn’t a mere “difference  of opinion” among lawyers. Rather, Matter of A-B- is a concerted and evil attempt to undo an existing national and international legal consensus that women facing domestic violence can and must be protected under refugee law. The reversion sought by Sessions and his restrictionist supporters would basically return women to the “dark ages” and result in torture, death, maiming and rape of countless females by persecutors throughout the world. Bookey also offered the Center for Refugee and Gender Studies at Hastings as a “clearinghouse” for litigation and litigation strategies attacking A-B-.

Batting “clean up,” retired Immigration Judge and noted asylum historian Chase led the audience in a tribute for Bookey’s “in the trenches” heroism in staunchly defending the rights of refugee women throughout our nation and the world. He then proceeded to eviscerate Sessions’s decision by going through Ms. A-B-‘s actual evidence in detail.

He pointed out how Sessions ignored facts of record supporting a grant of asylum to Ms. A-B- on the merits regardless of the favorable BIA precedent that Sessions went to great lengths to overrule. He also mentioned the ongoing efforts of “Our Gang” of retired U.S. Immigration Judges, assisted pro bono by some of America’s best lawyers, to educate the Article III Courts as to the realities of  asylum adjudication and the systemic destruction wrought by Sessions’s unprovoked attack on women’s asylum rights.

The Conference concluded with a request by FBA immigration Section Chair Elizabeth “Betty” Stevens for everyone to contract their Senators and Representatives about the need for an independent Article I U.S. Immigration Court as proposed by the FBA, ABA, National Association of Immigration Judges, AILA, and others.

Netflix filmed the proceedings for a future documentary about American immigration. Additionally, star immigration reporter Nicole Neara of Law 360 was in the audience. Immediately following the closing, Conference organizer and NY Law School Professor Claire “Human Dynamo” Thomas left for the Southern Border with a group of students committed to putting into effect what they had learned about strategies for ensuring due process and re-establishing justice in the U.S. asylum system.

*The “CBS Hour,” “CBS Team,” and “CBS Gang” have no relationship to the CBS Network, CBS Broadcasting, CBS Sports, CBS News, or any other legitimate organization.

Here’s the video featuring Ms. A-B-:

https://cgrs.uchastings.edu/news/cgrs-and-hrw-release-video-call-government-restore-protections-domestic-violence-survivors

And, here’s the text of my speech:

FEDERAL BAR ASSOCIATION ASYLUM CONFERENCE

NEW YORK LAW SCHOOL

March 8, 2019

 

Good afternoon, and thanks so much for inviting me.  In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the FBA, New York Law School, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks today.  They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!

“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”

 

Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”

 

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,” 

 

 

Those, my friends, are obviously not my words. Whose words are they? They are the words of former Attorney General Jeff Sessions who ran the U.S. Immigration Courts for nearly two years.

 

Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual, who had actually been rejected for a Federal Judgeship by his own party because of alleged racial bias, was in charge of our U.S. Immigration Court system. That helps explains why it is such a total disgraceful mess today from both a Due Process and administrative standpoint.

 

The Immigration Courts have a “known backlog” of over 1.1 million cases, with tens, perhaps hundreds, of thousands of additional cases likely squirreled away and still unaccounted for following the unnecessary “shutdown,” no signs of abating, and absolutely no, I repeat no, credible planfor reducing or controlling the backlog consistent with Due Process and our asylum laws. The DOJ’s process for increasing the backlog, known as “Aimless Docket Reshuffling” – and their outrageous attempts to “shift the blame” to respondents and their attorneys – are, as my esteemed former colleague retired Judge M. Christopher Grant used to say, “on steroids.” And, as my friend and fellow panelist, Judge Jeffrey Chase pointed out this week to BuzzFeed News, the current “strategy shift” to slowing down judicial and court staff hiring and abandoning once again the “e-filing program” that EOIR has failed to roll out after two decades of failed efforts is a guarantee that: “More people will wait longer!”

 

Acting Attorney General Whitaker’s questionable certification of two important cases during his brief tenure promises a continuation of political interference with the Immigration Courts in derogation of Due Process.

 

Don’t expect any improvement under current Attorney General Bill Barr. He’s known as an “enforcement solves all problems” immigration hard liner who co-authored an article praising Sessions for his attacks on Civil Rights, immigrants, and other vulnerable communities.

 

One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence.

 

Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually workedand provided a way of moving cases efficiently through the court system in accordance with Due Process while consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world!

 

Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”

 

The only real,Article IIIFederal Judge who has ruled on Matter of A-B-to date largely supports my criticisms of Sessions’s effort to distort asylum law against refugee women.  It’s a decision written by U.S. District Judge Emmet G. Sullivan in Washington, D.C. called Grace v. Whitaker. You will want to read that decision. There is also an outstanding analysis by my fellow panelist Judge Jeffrey S. Chase on his blog.

 

Unfortunately, but not unexpectedly, EOIR has purported to limit Grace’s rejection of Matter of A-B-to so called “Credible Fear Reviews.” In other words, they have improperly, and perhaps unethically, instructed Immigration Judges and the BIA not to apply Gracein individual asylum hearings.

 

But, that shouldn’t stop you from shoving Grace back down their throats! There is an outstandingonline practice advisory on how to argue Gracein Immigration Court by my fellow panelist Blaine’s amazing colleague, my good friend Professor Karen Musalo.  I also reposted it in my blog, immigratoncourtside.com.

 

I’m going to give you sevenvery basic tips for overcoming Matter of A-B-.  I’m sure that Blaine and her colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.

 

First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta.

 

On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”

 

Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.

 

Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights. 

 

Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG.  It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.

 

And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.

 

As Judge Chase and I recently reported on our respective blogs, a number of these “women as a PSG” cases have succeeded in the “Post-A-B-Era.” The detailed unpublished analyses by Immigration Judges are available online and, although of course not precedents, should give you helpful ideas on how to construct arguments and rebut ICE attempts to invoke A-B- to bar meritorious asylum claims by abused women.

 

Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. Indeed, a very recent front-page article in the Washington Postpointed out that gangs are so completely in charge in El Salvador that U.S-trained policemen are forced to flee and seek asylum in the United States. Additionally, gangs are the largest employer in El Salvador.

 

In many cases, claiming political or religious persecution should be a stronger alternative ground than PSG. As one of my friends recently pointed out, because of the incorrect precedents by the BIA, Immigration Judges almost always reject gang cases as actual or imputed political opinion. That’s plain wrong.

 

We need to start making the record and fighting back, using the large amount of available evidence and expert testimony on how gangs have infiltrated and influence every aspect of life in the Northern Triangle including, of course, politics and government. It’s time for the “EOIR charade” of  “let’s not grant gang-based asylum cases” to end, once and for all.

 

Fifth, develop your record.  The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.

 

Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.

 

Seventh, and finally, appeal to the “real” Article III Courts.I can’t over-emphasize this point. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.

 

Either the Article III’s do their jobs, step in, and put an end to this “theater of the absurd,” or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate Heroes” and those public officials who supported racism and “Jim Crow.”

 

Now is the time to take a stand for fundamental fairness, the true rule of law, and simple human decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever! Xenophobia never!

 

(03-11-19)

PWS

03-12-19