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9th Cir. Remands Reasonable Fear Denial In Reinstatement Case — VALENCIA MARTINEZ V. SESSIONS (Published)

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/20/14-70339.pdf

“The government does not offer any argument on the merits of this petition; therefore, it has waived any challenge to the arguments Martinez raised. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (holding that an appellee who did not address an argument in the answering brief had waived that issue). On remand, the agency is directed: (1) to give proper consideration to Martinez’s testimony about police corruption and acquiescence in MS-13 violence; (2) to accord proper weight to the Department of State Country Report on El Salvador, and in particular, evidence of corruption and inability or unwillingness to prosecute gang violence; and (3) to apply the correct legal standards to Martinez’s Convention Against Torture claim.”

PANEL: Morgan Christen and Paul J. Watford, Circuit Judges, and James Alan Soto, District Judge.

OPINION BY: Judge Soto

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Read the full opinion at the link. It’s short. Three things stand out.

First, the Respondent’s credible testimony clearly established a plausible claim for CAT relief. If he gets representation, he will be able to show that the authorities in El Salvador do often cooperate with gangs and that the government is willfully blind to the many instances of torture of citizens by gangs. The Asylum Officer’s incorrect analysis along with that by the Immigration Judge show a fundamental misunderstanding of CAT law and the reasonable fear process. How does an Immigration Court system faced with such glaring problems eliminate training and the guidance provided through the former Benchbook?

Second, the 9th Circuit highlights the Byzantine nature of the regulations in this area. How many unrepresented individuals who been treated in this unfair manner are hustled out of the country because they can’t figure out how to get meaningful review?

Third, this decision shows that there might well be ways to penetrate the general unwillingress of Appellate Courts to review the gross miscarriages of justice and denials of due process going on every day in the expedited removal process which is administered by the DHS and inadequately reviewed by the Immigration Judges. Once they take a look, they will be appalled at what they find!

PWS

07-21-17

CAT REOPENING: 9th Cir. Finds “the BIA abused its discretion by disregarding or discrediting the undisputed new evidence submitted by Agonafer regarding increased violence toward homosexuals in Ethiopia!” — AGONAFER v. SESSIONS!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/23/13-73122.pdf

“We conclude that the BIA abused its discretion because it clearly disregarded or failed to give credit to the post-2007 evidence submitted by Agonafer, which demonstrates that the country conditions regarding the treatment of homosexuals in Ethiopia are qualitatively different from the country conditions presented to the IJ in 2007. Whereas before, we noted that there was “no evidence in the record of any violence directed against homosexuals in Ethiopia,” Agonafer, 467 F. App’x at 754, at least two of the reports submitted with Agonafer’s motion to reopen provide reports of violence directed against homosexuals in Ethiopia since 2007, including violence in connection with imprisonment. Additionally, we reject the government’s contention that Agonafer must present categorically different evidence of “individual relevancy” from what he presented in his earlier proceedings. It is undisputed that Agonafer is a homosexual male. Given Agonafer’s sexual orientation and the evidence of the treatment of homosexuals in Ethiopia, there is sufficient evidence that, if proved, would establish his prima facie eligibility for deferral of removal under the CAT. See Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010) (“[A] CAT applicant may satisfy his burden with evidence of country conditions alone.”).”

Before: William A. Fletcher and Richard C. Tallman, Circuit Judges, and Paul C. Huck,* District Judge. Opinion by Judge Huck * United States District Judge for the U.S. District Court for the Southern District of Florida, sitting by designation.

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Yes, it’s only one case out of tens of thousands that the BIA reviews each year. But, mistakes like this from what is supposed to be an “expert judiciary” committed to using “best practices” to “guarantee fairness and due process for all” actually can cost lives!

And mindlessly ramming more cases into an overwhelmed system won’t help the situation.

PWS

06-26-17

DHS Issues New Training Materials For Credible Fear Determinations — Complete Text Here!

Release lesson plans

credible fear lesson plan

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These were forwarded by Nolan Rappaport. Nolan believes that these guidelines will “raise the bar” substantially for asylum claimants to pass through the credible fear process.

On initial review, I’d be hard pressed to say there was anything “legally erroneous” about these lesson plans. However, they did seem highly “legalistic.”

I have done numerous “credible fear reviews” in my judicial career and found that the determinations were more “holistic” than “legalistic.” Most of the folks I reviewed had credible, legitimate fears that arguably came within the legal definitions of persecution and/or torture particularly if the individual could fully develop the claims with the help of a lawyer.

I did not always retain jurisdiction over the cases once they were allowed into the Individual Hearing system Of the cases the came back to me, I estimate that at least half of the individuals succeeded in getting some form of protection at the Immigration Court level.

Read the lesson plans here and decide for yourself!

PWS

02/27/17

Fifth Circuit Says CAT “Government Acquiescence” Not Not Limited to “Willful Blindness”

Here’s the full text of the decision IRUEGAS-VALDEZ v. YATES:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60532-CV0.pdf

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Basically, the Fifth Circuit (hardly a pro migrant forum) requires the BIA and the Immigration Judge to follow the Federal Regulations on the Convention Against Torture (“CAT”).

Ever since the CAT became the effective, the BIA and the Attorney General have worked hard to restrict protection based on torture. But, little by little, almost all of the U.S. Courts of Appeals have been chipping away at these overly restrictive interpretations.

Here, the Fifth Circuit points out that in its haste to affirm the Immigration Judge and deny protection, the BIA failed to apply the Executive’s own regulations, which allow for the granting of protection in a significantly larger set of circumstances, particularly where corrupt government officials act “under color of law,” than the Board and the Attorney General have been willing to admit.

Because torture by or with the acquiescence of foreign government officials is widespread in many refugee sending countries, and because the CAT has no specific “nexus” requirement that the torture be tied to any specific “protected ground,” the CAT has the potential to become a much more useful means of gaining needed protection as the law develops. And, because CAT protection does not give individuals “green cards” of put them on the “path to citizenship” (although it usually does provide work authorization), it might be a compromise between returning individuals to countries where their lives would be in danger and creating an incentive for those who seek permanent status in the U.S.

As I used to tell individuals before me who wanted asylum but had to settle for CAT protection, “all it does is save your life.” Depending on how important one considers his or her life, that might significant.

PWS

01/24/17

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