"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“This court grants a petition for review of an agency denial of asylum, withholding of removal, and CAT relief only under the most extraordinary circumstances. See Gutierrez-Alm, 62 F.4th at 1194; Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021). This is one of those rare instances. For the reasons discussed above, the agency’su adverse credibility determination is amply supported by substantial evidence. But the IJ failed to properly consider and evaluate the evidentiary weight of multiple documents Kalulu offered into the record independent of her testimony, and the BIA made clear factual errors when it reviewed those documents. Because the agency’s decision therefore “cannot be sustained upon its reasoning,” this case must be remanded for the IJ or BIA to reconsider its decision. De Leon, 51 F.4th at 1008 (internal quotation marks omitted). On remand, the agency must reexamine the three declarations and medical document discussed in section III(b) to consider whether they, when properly read alongside other nontestimonial evidence in the record, independently prove Kalulu’s claims for asylum or withholding of removal. This court takes no position on whether those documents provide such proof or whether Kalulu merits any of the relief for which she applied.”
Dissent: “The majority ignores our precedent and instead concludes that the agency would have reached the same adverse credibility determination in the absence of these unsupported findings. That approach contravenes the REAL ID Act, binding circuit precedent, and fundamental principles of administrative law. I respectfully dissent.”
Many congrats to Amalia, Judah, and their NDPA team!
As my friend Dan often says about EOIR, “you can’t make this stuff up!”🤯
Well, the panel judges all agree that the BIA is wrong! It’s just a question of HOW wrong.
Note Van Dyke is a Trump appointee, and one of the most far-right judges on the bench. Murphy is a Bush II appointee. Sanchez (concur/dissent) is a Biden appointee.
The BIA has to have worked overtime to do such a miserable job that even Van Dyke couldn’t paper it over, although he took a stab at it!
The majority decision is basically a restatement of the 4th Circuit’s pre-REAL ID precedent Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004). That case materially affected practices, changed results, and saved lives during my tenure at the “Legacy”Arlington Immigration Court!
So, it’s not that requiring that testimony be evaluated along with independent, non-testimonial evidence is something “new” or “rocket science!”🚀 Heck, it’s even incorporated in the REAL ID Act. This is “Immigration 101!” Yet, theBIA came up woefully short while Garland ignores fundamental flaws in his judicial system.
It’s well worth looking at a bit more of Judge Gabriel Sanchez’s vigorous separate opinion:
Petitioner Milly Kalulu, a native of Zambia, alleges she
was persecuted because she is a lesbian in a country that
criminalizes same-sex relationships. When her relationship
with a woman was discovered by her girlfriend’s brothers,
she was beaten, whipped, injected with an unknown
substance, stabbed in the chest, doused with gasoline, and
threatened with death over several violent encounters.
Kalulu submitted documentary evidence corroborating her
claims, including a copy of her medical report, a declaration
from her aunt in California, and declarations from several
Zambians who witnessed the attacks on her. The agency,
however, dismissed this evidence based on unsupportable or
trivial grounds.
I agree with the majority that the agency failed to
consider whether Kalulu’s supporting evidence
independently proves her claims for asylum, withholding of
removal, and relief under the Convention Against Torture
(CAT). “Where potentially dispositive testimony and
documentary evidence is submitted, the BIA must give
reasoned consideration to that evidence.” Cole v. Holder,
659 F.3d 762, 772 (9th Cir. 2011); see also Antonio v.
On the basis of his robust SOTU performance, I have every confidence that President Biden can more than adequately defend himself from the “Hur report.” Sadly, the same can’t necessarily be said for all the asylum seekers and other immigrants harmed by Garland’s indifference to systemic injustice in his “courts!”
This is the real “immigration crisis” that threatens our legal system and our democracy!
“Elvis Njenula Yahm, a citizen of Cameroon facing removal, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his pro-Anglophone political opinion. An immigration judge denied all three avenues for relief, and the Board of Immigration Appeals (BIA) dismissed Yahm’s appeal. … A recent decision supports Yahm’s view that an adverse credibility finding does not relieve the agency of its obligation to also consider documentary support for a CAT claim. See Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). … Because Yahm offered nontestimonial evidence of country conditions in Cameroon, the BIA erred by not considering it in the context of his CAT claim and instead treating Yahm’s lack of credibility as dispositive. See Arulnanthy, 17 F.4th at 598. Yahm’s petition for review is GRANTED and these proceedings are REMANDED for the BIA to address the CAT claim consistent with Arulnanthy.”
Way to go, Keith! Congrats! Winning justice for asylum seekers in the 5th Circuit is no mean feat!
The 5th Circuit decision in Arulnanthy sounds very much like the 4th Circuit’s decision in Camara v. Ashcroft, 378 F. 3d 361 (4th Cir. 2004). Camara actually changed for the better the preparation, presentation, and most of all results in asylum cases in the 4th Circuit.
I consider it the “precursor” to the REAL ID provision now incorporated in the INA requiring IJ’s and the BIA to consider the “the totality of the circumstances, and all relevant factors,” in making credibility determinations. If that is actually done, which it isn’t in far too many cases in today’s broken Immigration Courts, the results are likely to be far more positive for asylum seekers and other respondents seeking relief in Immigration Court.
The “Camara effect” was real. For example, in 2004, on the “eve of Camara,” the asylum denial rate at the Arlington Immigration Court, where I sat, in the 4th Circuit, was in excess of 70%. By the time I retired in 2016, it was the polar opposite. The asylum grant rate exceeded 70%! SOURCE: TRAC Immigration.
Of course, no one factor is responsible for that positive change. And, I acknowledge that in the Charlotte Immigration Court, also in the 4th Circuit, where several judges were reknowned for their hard-core anti-asylum attitudes, the denial rates remained disturbingly above the national average. And, of course, the “institutionalized anti-asylum bias” ushered in and promoted at EOIR by the Trump regime resulted in another dramatic, totally unjustified, downturn in asylum grants by EOIR across America after 2016.
Nevertheless, positive appellate guidance on asylum is a major factor in establishing and maintaining due process in the Immigration Courts. Unfortunately, almost none of that expert positive guidance on asylum and other forms of relief comes from Garland’s BIA precedents. Additionally, although some of his appointments have been welcome, overall, Garland has done a very poor job of bringing in dynamic progressive expert leaders and judges to reverse the anti-asylum, anti-due-process, anti-immigrant “culture” that continues to haunt EOIR at all levels.
The “results” of his dysfunctional courts speak for themselves. Backlogs build, Circuit Courts struggle with EOIR’s poor “haste makes waste” work product, and decisional consistency on asylum is shockingly, “tragicomically” lacking!
In almost all ways, this system has seriously regressed in the past decade, even while eating up more resources! That’s about as much of an “engineered lose-lose” as one can imagine! Yet, Biden, Harris, and Garland appear impervious to this glaring, “fixable” problem that threatens our entire justice system!
Shouldn’t racial justice advocates be all over Garland, Monaco, Gupta, and Clarke for the EOIR’s disgraceful performance on asylum claims involving Cameroonians and other applicants of color! If not, why not? The entire “progressive social justice community” should be expressing “collective outrage” to the Biden Administration about the Garland DOJ’s disgraceful performance at EOIR and on other human rights issues involving race and immigration.
It’s also worthy noting, as my Round Table colleague retired Judge Jeffrey Chase has pointed out before, that the Biden Administration has granted TPS to Cameroonians in the U.S.So, there is really no issue about the truly miserable human rights conditions there. That is, apparently, except in Garland’s Immigration Courts where the “programmed to deny” and “good enough for government work” mentalities continue to prevail — even where the stakes are life or death!
Additionally, the regulations implementing the Convention Against Torture (“CAT”) at EOIR initially became effective on Mar. 22, 1999 — over two decades ago. I remember that at one of the next Immigration Judge Conferences, probably in 1999 or 2000, the training specifically instructed that because of the country-conditions related nature of CAT, adverse credibility rulings against a respondent were not determinative of CAT claims.
Yet, more than two decades later, Immigration Judges and, worse yet, the BIA are still making that same fundamental error! How does this make the idea that EOIR is an “expert court” or that “constitutional due process is being protected at EOIR” anything other than a “sick joke.” Yet, the mockery of justice continues and nobody at Justice, from the top down, is being held accountable for stomping on life-determining legal and Constitutional rights! Why?
