⚖️👩🏽‍⚖️👨🏼‍⚖️⚔️🛡LATEST ROUND TABLE AMICUS BRIEF FOCUSES ON GENDER-BASED PSG! — Chavez-Chilel v. A.G., 3rd Cir., Petition For Rehearing

Hon. Susan G. Roy
Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

 

Hon. “Sir Jeffrey” Chase reports:

The attached is the final “as filed” version of our latest brief in Chavez-Chilel v. Garland, in support of the motion for rehearing/rehearing en banc.  This one is very “all in the family,” as Sue Roy is our counsel, Sue and I drafted the brief, and decisions from Miriam Hayward and Charles Honeyman are attached as exhibits.

There is also an amicus brief by law school professors, and joining NJ attorney Ted Murphy as petitioner’s counsel is Paul Hughes, who argued Kisor v. Willkie before the Supreme Court (as well a Nasrallah v. Barr, a Supreme Court victory in which we were amici).

Best, Jeff

Chavez-chilel RT amicus FINAL

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Thanks to our wonderful colleague Judge Sue Roy for taking the lead on this!

🇺🇸Due Process Forever!

PWS

03-31-22

⚖️🗽NDPA CALL TO ARMS: THE GEORGE W. BUSH INSTITUTE ISSUES RESEARCH TO COMBAT THE DISINGENUOUS ATTACK ON WOMEN & THE RACE-DRIVEN MISOGYNY & MINIMIZATION OF GENDER-BASED PERSECUTION THAT INFECTS THE FEDERAL JUDICIARY &  BUREAUCRACY FROM TOP TO BOTTOM!  — “Better Than The Third Circuit!”

 

“Make the record” to fight the ignorant nonsense and grotesque misconstruction of the asylum law and country conditions by the Third Circuit & far, far too many Federal Judges & Bureaucrats with this authoritative report authored by Natalie Gonnella-Platts, Jenny Villatoro, and Laura Collins of the George W. Bush Institute:

https://www.bushcenter.org/publications/resources-reports/reports/gender-based-violence-and-migration-central-america.html?utm_source=newsletter&utm_medium=email&utm_campaign=fiveforfriday&utm_term=12102021

No Justice: Gender-based Violence and Migration in Central America

Gender-based violence affects one in three women worldwide, making it an urgent and important policy challenge. Violence against women and girls is often excluded from conversations on the nexus of Central American migration, regional development, and domestic immigration reform.

Key Excerpts:

. . . .

Though there has been increasing focus from US and international influencers on the levels of violence in El Salvador, Guatemala, and Honduras (known as the Northern Triangle) and its impact on migration, an adequate response to the gendered differences in the ways violence is perpetrated remains limited and at times nonexistent.

This needs to change, especially since gender-based violence within the Northern Triangle constitutes a daily threat to women and girls—one that has been significantly worsened by corruption, weak institutions, and a culture of impunity toward perpetrators. At individual and community levels, gender-based violence drives women and girls to be displaced internally, migrate to the United States, or a somber third path—death either by femicide or suicide. At national levels, it seriously inhibits security, opportunity, and development.

As circumstances at the southern border of the United States demonstrate, gender-based violence has a direct influence on migration flows across the region and is deeply tangled with cyclical challenges of inequity and poverty. For those who choose to seek assistance or flee their communities, high rates of revictimization and bias further obstruct access to justice and safety.

Until policies and programs respond to the serious violations of agency and human rights perpetuated against women and girls (and within systems and society at large), instability in and migration from the Northern Triangle only stand to grow.

As the United States and the international community consider a comprehensive plan on Central America and immigration reform, proposed strategies must anchor the status and safety of women and girls at the center of solutions.

. . . .

In Guatemala, teenage girls face a substantial risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.7

. . . .

Guatemala: In Guatemala, about 8 of every 1,000 women and girls were the victim of violence in 2020. Thirty women were murdered on average each month last year, or almost one per day, the lowest rate in the last 10 years. Reported rape cases averaged 14 per day.17 One of the most extreme and recognizable forms of gender-based violence is sex slavery. According to a report by the International Commission against Impunity in Guatemala (CICIG) and UNICEF: “A combination of gangs, crime families, and drug trafficking organizations run sex trafficking rings in Guatemala that may involve some 48,500 victims.”18

Women in Indigenous and rural communities may have it even worse. For example, Indigenous women in Guatemala face multiple layers of discrimination, including a history of repression and genocide.

During the genocidal Guatemalan civil war that lasted from 1960 to 1996, state sanctioned mass rape during massacres was used to repress the Indigenous populations—with offenses committed publicly and bodies often left on display with the intent to instill terror in the Mayan communities.19 Truth commissions state that more than 100,000 Indigenous women were raped and forced into sex slavery.20

State-sanctioned and state-accepted gendered violence may have contributed to a culture that tolerates violence against women. Guatemalans were the most accepting of gender-based violence in a 2014 survey of Latin American countries by Vanderbilt University, while El Salvador came in second.21

Unfortunately, the COVID-19 pandemic has further exacerbated the risk of violence to women and girls in the Northern Triangle, as it has in every region

of the world. Exploited by gangs and others, lock-downs have forced those most at risk for violence to shelter in proximity to their abusers. All three countries within the region have reported sizable increases in intrafamily violence since the start of the pandemic. El Salvador has also seen a notable increase in intrafamily femicide.

. . . .

Coupled with the trauma already experienced by survivors, each of these factors contributes to a lack of trust in institutions, high levels of impunity for perpetrators, and a vicious cycle of repeat violence against women and girls.

Faced with this dire reality, women and girls often have three choices: (1) report and face disbelief, (2) stay and risk additional violence, or (3) flee.

. . . .

Women and girls undertake this risky journey with no guarantee of legal protection in the United States. But they come because the horrors they face at home are so much worse.

It’s important to remember that seeking asylum

is often the only legal means that migrants who qualify have of entering the United States. Although requesting asylum is legal, the path to asylum is not

safe. An understanding of legal rights and access to services—including health, trauma, and legal support—also remain out of reach for many female migrants, furthering cycles of exploitation.

Current US refugee and asylum law does not recognize gender-based violence as its own category warranting protection. According to the American Bar Association, US protections for victims of gender-based violence are built upon 20 years of advocacy and sometimes favorable legal opinions.54 These protections are tenuous, with any presidential administration able to roll back the decisions made under its predecessor. Attorney General Merrick Garland recently reinstated prior precedent for gen- der-based violence asylum requests and announced that the Department of Justice would pursue a formal rule.55 But even this could be reversed in the future.

Until legislation enshrines gender-based violence as a condition warranting humanitarian protection, the United States will continue to turn away women and girls who merit refuge.

. . . .

The Northern Triangle, Mexico, and the United States are at a crossroads. El Salvador, Guatemala, and Honduras can either take advantage of a young population of prime working age by promoting pol- icies that create a safe, stable environment where women and girls can fully participate, or they can continue on a path that is leading to substantial lev- els of gender-based violence, instability, migration, and economic stagnation.

As research continuously demonstrates, when empowered, active, and engaged, women and girls are a critical catalyst for security and prosperity. Countries with higher levels of gender equity are more peaceful and stable overall.66 Gender equality can provide better outcomes for children, increased labor productivity, lower poverty rates, and reduced levels of violence.67

In seeking to secure a brighter future across the Western Hemisphere, immigration and develop- ment policies must include solutions to address gender inequity and gender-based violence. As current circumstances at the southern border of the United States demonstrate, stability and prosperity are not possible without them.

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

Debi Sanders
Debi Sanders ESQ
“Warrior Queen” of the NDPA
PHOTO: law.uva.edu

Many thanks to my good friend and “founding mother of the NDPA,” Deb Sanders for bringing this to my attention.

The Bush Institute has done some great “practical scholarship” on gender-based asylum, exposing many of the lies and misinformation upon which Government policies have been based, particularly GOP nativist policies and the overtly misogynistic attack on migrant women of color by the Trump regime.

“No justice,” “protections are tenuous” (at best), “high levels of impunity,” “dire reality,” “requesting asylum is legal, the path to asylum is not safe” come to mind when reading the Third Circuit’s abominably incorrect “analysis” in Chavez-Chilil v. A.G.  https://immigrationcourtside.com/2021/12/10/%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%f0%9f%91%8e%f0%9f%8f%bd-3rd-cir-badly-bungles-guatemalan-women-psg-chavez-chilel-v-atty-gen/

And let’s not forget that Ms. Chavez-Chilil is actually one of the lucky ones! She got a chance to make her claim and was awarded life-saving protection by an Immigration Judge under the CAT, albeit protection that leaves her unnecessarily and perpetually “in limbo” — ineligible to fully join our society and maximize her own human potential for everyone’s benefit.

By contrast, thousands of women and girls (also men and boys) are insanely, illegally, and immorally “orbited” back to danger zones without any opportunity to even make a claim and without any legitimate process whatsoever, let alone due process!

Why this is important:

  1. Compelling documentation and cogent arguments will win individual cases and save lives;
  2. We can build case law precedent for gender-based asylum grants;
  3. We must make a clear historical record of which jurists and bureaucrats stood up for the rule of law and the humanity of refugee women and which of them purposely have aligned themselves with the “dark side of history.” See, e.g., Chief Justice Roger Taney.

Why is the Biden Administration mindlessly and immorally attempting to “deter” legal asylum seekers from seeking to save their own lives? What’s the excuse for treating a moral and legal requirement under domestic and international law as a “bogus political strategy option” rather than the legal obligation it is? Why was the DOJ “pushing” a legally wrong, corrupt, factually wrong position before the Third Circuit?  Where’s the expertise? The backbone? The moral courage? The accountability?

🇺🇸Due Process Forever!

PWS 

12-13-21 

☠️🤮👎🏽 3RD CIR. BADLY BUNGLES GUATEMALAN WOMEN PSG! — Chavez-Chilel v. Atty. Gen.

Woman Tortured
“Hey ladies, not every woman in Guatemala is hanging up there with you (yet), so what’s the problem,” says Circuit Judge Patty Shwartz of the 3rd. Cir.“ “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

https://www2.ca3.uscourts.gov/opinarch/211180p.pdf

Chavez-Chilel v. Atty. Gen., 3rd Cir., 12-09-21, published

PANEL: SHWARTZ, PORTER, and FISHER, Circuit Judges.

OPINION: Judge Patty Shwartz

KEY QUOTE:

Chavez-Chilel’s proposed PSG lacks particularity. “[N]ot every immutable characteristic is sufficiently precise to define a [PSG],” id. at 552, and courts have concluded that a proposed PSG of all women in a particular country “is overbroad[] because no factfinder could reasonably conclude that all [of a country’s] women had a well-founded fear of persecution based solely on their gender,” Safaie v. INS, 25 F.3d 636, 640 (8th Cir. 1994) (addressing Iranian women).8 Reasons to depart from this general rule are not present here. For example, in Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), the Court of Appeals for the Eighth Circuit recognized the PSG of all Somali women because “all Somali females have a well-founded fear of persecution based solely on gender given the prevalence of” female genital mutilation. Id. at 518; see also Mohammed v. Gonzales, 400 F.3d 785, 797–98 (9th Cir. 2005) (same); In re Kasinga, 21 I. & N. Dec. 357, 365–66 (B.I.A. 1996) (recognizing PSG of “young women” in a particular tribe in Togo due to pervasive practice of female

8 In Perdomo v. Holder, 611 F.3d 662, 668–69 (9th Cir. 2010), the Court of Appeals for the Ninth Circuit disagreed with the BIA’s conclusion that “all women in Guatemala” was too broad a group to qualify as a PSG and remanded for further analysis. That case rested on the Ninth Circuit’s two-part definition of a PSG, which recognized any group “united by a voluntary association, including a former association, or by an innate characteristic that is so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.” Id. at 666 (quotation marks and emphasis omitted). This definition is not consistent with our Court’s three requirements for a PSG, see S.E.R.L., 894 F.3d at 540, so we decline to follow the reasoning in Perdomo.

14

         

genital mutilation). Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. Cf. A.R. 170–73, 182 (Chavez-Chilel’s testimony that she knew of no other women who suffered sexual or domestic violence); A.R. 232 (report explaining that one-third more Guatemalan women experience sexual or domestic violence against them than women in Paraguay). Accordingly, while the size of the group standing alone would not disqualify a group from being a PSG, Cece v. Holder, 733 F.3d 662, 674–75 (7th Cir. 2013), Chavez- Chilel has failed to demonstrate that her proposed PSG is sufficiently particularized. Thus, her alleged fear of persecution based upon membership in such a group does not provide a basis for asylum. Because Chavez-Chilel cannot prove her asylum claim, she cannot meet the higher standard to obtain withholding of removal. See Blanco v. Att’y Gen., 967 F.3d 304, 315 (3d Cir. 2020). As a result, the IJ and BIA correctly denied her request for asylum and withholding of removal.9

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

What total poppycock Judge Shwartz spews forth in the faces of abused and targeted refugee women! Guatemalan women suffer one of the highest femicide rates in the world! https://cgrs.uchastings.edu/our-work/femicide-and-gender-based-violence. Indeed, that rate increased dramatically, by 31%, in 2021! https://www.riotimesonline.com/brazil-news/mercosur/central-america/femicides-increase-by-31-in-guatemala-during-2021/. While Judge Shwartz and her colleagues are incapable of recognizing truth, persecutors in Guatemala are highly capable of recognizing “women in Guatemala” as a group to target because of their gender!

This is a seriously flawed analysis. The court conflates psg “particularity” with nexus. Obviously, not every woman in Guatemala need fear persecution for some to be persecuted on that basis!

Suppose a few Jews escaped Nazi persecution. Does that mean Jews weren’t a PSG? Suppose only 10% of Poles were killed by the Nazis because of their ethnicity. Does that mean Poles were not a PSG? Suppose only 40% of Roma in a particular country are exterminated? Does that make Roma not a PSG? What if every Catholic in a particular country doesn’t have the exact same fear of persecution? Does that mean that Catholics don’t have a “well-founded fear”of persecution? Does that mean that Catholicism isn’t “one central reason” for persecution? Of course not, except in the uninformed minds of Judge Shwartz and her panel colleagues!

Obviously “women in Guatemala” is 1) fundamental to identity; 2) particularized (it clearly excludes non-women); and 3) distinct in Guatemalan society (and every other country in the world). Indeed, like family “women” and “men” are among the oldest, most fundamental, readily recognizable “particular social groups” in human existence!

I’m not the only critic of this outrageous misconstruction of asylum law!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

“Sir Jeffrey” Chase of the Round Table 🛡⚔️ says:

The court completely misconstrued the standard for determining particularity:

Here, by contrast, there is no record evidence that all Guatemalan women share a unifying characteristic that results in them being targeted for any form of persecution based solely on their gender. 

Particularity of course is a clear marker for group inclusion, and does not require evidence that everyone in the group is being targeted for persecution – compare, e.g. family or land owners.

Professor Geoffrey Hoffman
Professor Geoffrey Hoffman
Immigraton Clinic Director
University of Houston Law Center

Our friend and “practical scholar” colleague, Professor Geoffrey Hoffman of the University of Houston Law Center, adds:

Appears also to ignore the “once central reason” asylum rule in that the court is erroneously say gender must be “sole” reason (page 15, use of word “solely”)

So court got it wrong on 2 counts – not “all” women in Guatemala must be persecuted to form a valid PSG and gender need not be “sole reason” for the persecution.

Another colleague who practices in the 3rd Circuit sums it up succinctly and bluntly: “Awful!”

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

In addition to being legally wrong on a number of points, as pointed out by Dan Kowalski at LexisNexis Immigration Community, the court’s decision is horrible policy:

Note that the IJ DID grant CAT relief, and the government did NOT appeal that grant.

The “good news” is that the CAT grant prevents Ms. Chavez -Calel from being returned to torture and persecution in Guatemala. However, by misapplying asylum law, the court basically places her in an indefinite “limbo status.” 

She therefore is deprived of the right to fully integrate into our society by getting a green card and becoming a citizen. The court also strips her of any realistic path to exercising political rights! What sense does manipulating the law to intentionally create disenfranchised subclasses in American society make when better alternatives are available? 

To add insult to injury, in this decision the Third Circuit joined other Circuits and the BIA in giving DHS and EOIR a “pass” on their intentional decision not to comply with the INA requirements for issuing a Notice to Appear (“NTA”) to commence removal proceedings. 

Obviously, these “ivory towerists” have never experienced the actual mess that occurs when overworked, understaffed Immigration Court clerks manually mail out subsequent notices, by regular U.S. Mail, using addresses haphazardly entered by DHS personnel in the chaos that often exists at the border and upon release from DHS detention. 

Perhaps, in their exalted positions, these Article IIIs no longer have to rely on the ever-deteriorating service of the U.S. Postal service. This morning, I delivered a “mini-stack” of mis-delivered U.S. Mail to my next door neighbor. We seem to get mis-delivered mail on a weekly basis. And, I live in a reasonably “upscale” neighborhood, if I do say so myself — one where folks know all the neighbors and take the time to “re-route” misdirected mail. Think there are places America where that doesn’t happen?

What do these judges think “delivery accuracy” is in the communities and situations where most Immigration Court respondents live? Maybe, there was a good reason why Congress required the NTA, which, unlike subsequent EOIR notices, is often served personally, to contain accurate information on the time and place of their hearing.

Maybe, we need Federal Judges who live in the “real world” rather than abstract one they have constructed where the lives of migrants are at issue! Maybe, we need more Federal Judges who have seen and experienced the consequences of “poor and uninformed judging” on immigrant and ethnic communities in the U.S.!

At a time when the Supremes’ righty majority appears to be intent on dismantling half a century of established women’s rights, the Third Circuit’s wrong-headed decision is a further “body blow” to both the humanity and human rights of women throughout the world!

 Judge Schwartz is an Obama appointee. Her panel colleagues are GOP appointees. We deserve better from our life-tenured Federal Judiciary! Much, much better!

🇺🇸Due Process Forever!

PWS

12-10-21