Convention Against Torture (“CAT”) – Page 2

DHS/BIA JOINT DEPORTATION MILL CONTINUES TO CRANK OUT ERRONEOUS DENIALS — 2D CIR LATEST TO EXPOSE POTENTIAL DEATH SENTENCE W/O DUE PROCESS — Martinez de Artiga v. Barr — The Vile Legacy of Those Complicit in The Trump Regime’s Racist Human Rights Abuses Will Be Their Lasting Shame!

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

Rebecca Press Esquire — Rebecca Press, Esquire
Legal Director
UnLocal

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca2-on-cat-el-salvador-ms-13-martinez-de-artiga-v-barr

Dan Kowalski reports for Lexis/Nexis Immigration Community:

Daniel M. Kowalski

10 Jun 2020

CA2 on CAT, El Salvador, MS-13: Martinez de Artiga v. Barr

Martinez, 2d Cir.

“Patricia Xiomara Martinez De Artiga challenges the denial of her 26 application for asylum, withholding of removal, and protection under the 27 Convention Against Torture (CAT). Martinez listed her son as a derivative 28 beneficiary on her application. The Immigration Judge (IJ) found that Martinez 29 testified credibly regarding serious, individualized threats against her and her 30 children by the infamous Mara Salvatrucha (MS-13) gang. Nevertheless, the IJ 31 denied Martinez’s claims for asylum and withholding, concluding that the 32 gang targeted Martinez because she had frustrated the gang’s recruitment 33 efforts and not on account of membership in her son’s family. On the issue of 34 CAT protection, the IJ determined that Martinez failed to meet her burden for 35 relief because she fled El Salvador promptly after MS-13 threatened her. We 36 hold that the IJ erred as a matter of law when it penalized Martinez for her prompt flight, and we cannot confidently predict that a remand would be 2 futile. We therefore DENY the government’s motion for summary denial, 3 GRANT Martinez’s petition for review, and REMAND the case.”

[Hats off to Rebecca Press!]

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

Let’s see. Woman credibly threatened with torture by group known to have capability, often aided and/or abetted by a corrupt and often complicit government, and renowned for leaving a trail of headless corpses behind. She does what any reasonable human might do in the same position: flees immediately for her life. It’s an “open and shut” case for CAT protection — should have been granted by stipulation between the parties.

Instead, in the warped, twisted, irrational, misogynist, and racially biased world of EOIR, a Latino women’s rational actions become a judge’s reason to deny her clearly warranted protection. According to this judge, she had to be dumb or unfortunate enough to wait to be tortured or killed to get protection. Of course it’s absurd! But, what’s even more absurd is that a corrupt, unconstitutional system that daily metes out this type of deadly utter nonsense to vulnerable humans seeking legal protection is allowed to continue to operate in our nation at all.

Can it really get any worse! It raises the obvious question of why the “appellate immigration judges” who approved this ludicrous abomination of illegality and “counter logic” are still on the bench rather than in remedial training or looking for other jobs.

It’s no surprise that a fundamentally unjust and unconstitutional system that wastes time looking for ways to deny cases that should easily be granted is running an uncontrolled backlog of at least 1.4 million cases. It’s obvious that under Sessions, Whitaker, and Barr, the already stressed, reeling, and mismanaged Immigration “Courts” have become hotbeds of misogyny, anti-immigrant bias, anti-asylum bias, anti-Latino bias, pro-DHS favoritism, unprofessionalism, grotesque mismanagement and waste of taxpayer funds, and just all around horrible judging. They are America’s Star Chambers, pure and simple.

Remanding individual cases is not going to fix these systemic problems that are bringing down our Constitution and de-legitimizing our entire justice system. But, shutting down the system and requiring that it be administered by an independent judicially-appointed monitor to return some semblance of due process and fundamental fairness is not only within the Article III Courts’ power, but is actually constitutionally required to halt this Administration’s systemic abuses of justice. Or, send the cases that actually need to be tried at this point in time to U.S. Magistrate Judges for real due process hearings.

The Courts of Appeals constantly expose the elementary mistakes, illegality, outright irrationality, the widespread, intentional denials of due process, fundamental fairness, and the gross failures of basic judicial expertise by the “EOIR Subdivision” of DHS Enforcement. But, you can be sure that this is just the “tip of the iceberg.”

Some Court of Appeals panels use the same “rubber stamp” techniques as the BIA, hiding their own deficiencies behind a shield of “undue deference” to a failed and unconstitutionally biased agency. And, even more individuals with potentially valid claims are unfairly turned down because they can’t find competent lawyers or don’t have the wherewithal to get to the Court of Appeals at all.

Then there are those who can’t stand the pain and torture inflicted by the “New American Gulag” so give up viable claims without full litigation. Or they are sent to rot and die in Mexico waiting for a purposely unfair hearing system stacked against.

Now, tens of thousands, many with potentially valid claims for protection, are simply being turned back at the border in clear violation of our statutes, our Constitution, and international obligations, not to mention our obligations to our fellow humans. They are denied access to the system. The Administration fabricates numerous lies and false myths to justify its actions, most rooted deeply in the anti-Hispanic racism and misogyny of Trump, Miller, and their accomplices.

The reasons given by the regime for this racist misconduct are phony as a three dollar bill. Yet, some equally dishonest authorities, including judges who should know better, will accept them without critical examination of their fraudulent nature.

Complicity comes in many forms and can often be hidden in the present. But, the the massive, intentional, human rights violations, fueled by the inherent racism of the Trump Administration and its toadies, will someday come out. The full extent of the entirely unnecessary human carnage inflicted on humanity by our nation and the invidious reasons behind it will be documented.

Then, future generations will ask: Where were the Federal Courts while this was happening? Why didn’t privileged and supposedly independent life-tenured judges stop the “slaughter of innocents?” Why did they allow baby jails, kids in cages, family separation, torture in the New American Gulag, Star Chambers, and Nazi-style abuses by corrupt U.S. border guards to continue, unabated? Why were they complicit in the dehumanization of people of color by an overtly racist and scofflaw regime? What is it about Trump’s and Miller’s racist agenda that they were too dim or intellectually dishonest to understand?

Justice will be too late for the dead, tortured, maimed, dehumanized, and destroyed. But, the reputations of these “Modern Day Confederates, Jim Crows, and their enablers” eventually will come tumbling down just like the statutes of their morally and intellectually bankrupt predecessors who also fought for or advanced the cause of racism and man’s inhumanity to men, women, and particularly, children. They had their own flimsy excuses, fabrications, myths, and B.S. justifications which have crumbled over time leaving just the nakedness and ugly truth of their racism and/or complicity for others to see.

This is not a “normal Administration” and falsely treating it as such by approving or failing to stand up to their attacks on our Constitution, human rights, and human dignity is not “normal behavior” for Federal Judges, legislators, and other public officials who allow this grotesque system to continue to destroy lives. “Deferring” to patently racist schemes and overtly biased officials isn’t legal, even when the “cover” of some other legal pretext is offered.

Those who are witness to the many abuses must insure that those who operate and allow this thoroughly corrupt system to persist don’t escape with the “Nuremberg Defense” of “just following orders” or “just following the law.”

Actually, equal justice for all isn’t just a slogan. Our Constitution clearly requires it, and it’s the job of Federal Judges to insure that it happens. Judges who won’t do that, don’t belong on the bench. Certainly, when there is regime change, no future Federal Judge or Justice should be appointed or confirmed unless he or she has demonstrated a commitment to equal justice for all supported by a record of opposing the systemic racial injustice and other invidious discrimination inflicted by the Trump regime through its program of “Dred Scottification” of the other.

There is no national emergency more important right now than the failure of our justice system to provide and enforce equal justice for all. The many who are enabling this regime’s toxic agenda by insuring that justice is unequal and that the system discriminates against and demeans immigrants, asylum applicants, and others of color are themselves operating outside the law, not to mention humanity. There will be a reckoning! Count on it!

Due Process Forever. Complicity in Racist Abuses, Never!

PWS

06-13-20

⚖️👍🏼SUPREMES UPHOLD JUDICIAL REVIEW OF CAT DENIAL, 7-2 — NASRALLAH v. BARR, Opinion By Justice Kavananaugh — Round Table ⚔️🛡 Files Amicus For Winners!

NASRALLAH v. BARR, No. 18-432, June 1, 2020

SUPREME COURT SYLLABUS:

OCTOBER TERM, 2019 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 18–1432. Argued March 2, 2020—Decided June 1, 2020

Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).

The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.

Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.

(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-

2

NASRALLAH v. BARR Syllabus

moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.

(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.

(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).

The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a

Cite as: 590 U. S. ____ (2020) 3 Syllabus

decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.

762 Fed. Appx. 638, reversed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

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

Score at least a modest victory for the NDPA over the “Deportation Railroad.”

Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice. Here’s a report from Judge Jeffrey Chase:

Hi All: Our Round Table filed an amicus brief in Nasrallah v. Barr. The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.

Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch. Thomas wrote a dissenting opinion that was joined by Alito.

The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).

Gibson Dunn assisted us with the drafting of the brief.

Best, Jeff

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

And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!

Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.

Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.

PWS

06-01-20

BLOWING THE BASICS: THE CONTINUING UGLINESS OF THE BIA’S FAILURE OF LEGAL EXPERTISE, JUDICIAL INDEPENDENCE, AND DECISIONAL INTEGRITY IS A “LICENSE TO KILL” MOST VULNERABLE AMONG US ☠️⚰️😰👎 — 3rd Cir. Says BIA Gets PSG Test Wrong, Fails To Apply Binding CAT Precedent, Distorts Facts to Engineer Wrongful Denial of Protection – “[W]e are troubled by the BIA’s apparent distortion of evidence favorable to Guzman in this case.” – Guzman Orellana v. Attorney General***

Dan Kowakski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-asylum-social-group-el-salvador-guzman-orellana-v-barr

CA3 on Asylum, Social Group, El Salvador: Guzman Orellana v. Barr

Guzman Orellana v. Barr

“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”

[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]

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

*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.

Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.

Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!

This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.

Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?

Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.

More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!

The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.

Due Process Forever! Captive Courts & Complicit Judges, Never!

PWS

04-18-20

EMERGING STARS ⭐️⭐️⭐️ OF THE NDPA: Elizabeth G. “Betz” Bentley @ Jones Day (Minneapolis) Beats The BIA on Standard of Review in 8th Cir. — Kassim v. Barr

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca8-on-cat-somalia-standard-of-review-kassim-v-barr

Dan Kowalski reports on LexisNexis Immigration Community:

CA8 on CAT, Somalia, Standard of Review: Kassim v. Barr

Kassim v. Barr

“The overarching question in this case is whether the Board of Immigration Appeals applied its own standard of review correctly. After an immigration judge granted a waiver of inadmissibility and deferral of removal to Ahmed Shariif Kassim, the Board reversed both decisions. Kassim claims that, in doing so, the -2- Board improperly supplanted the immigration judge’s findings with its own. We grant the petition for review in part, deny it in part, and remand. … We instruct the Board to remand to the immigration judge for a finding on whether Kassim would more likely than not suffer torture in Somalia.”

[Hats off to Elizabeth G. Bentley of Jones Day! “Elizabeth served three clerkships, including to Justice Sonia Sotomayor of the U.S. Supreme Court, prior to joining Jones Day in 2018. She also practiced appellate litigation at a leading national firm and immediately following law school was a legal fellow for the Vera Institute of Justice in New York City, where she assisted the organization’s general counsel regarding issues of nonprofit law. During law school, Elizabeth participated in the Harvard Immigration and Refugee Clinic and was a teaching fellow for a law and social movements course.”]

Elizabeth G. “Betz” Bentley ESQUIRE
Jones Day
Minneapolis, MN

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

Congrats, Betz, and thanks to you and Jones Day for taking this important case! Looking forward to more great things from you! Brilliant, committed lawyers like you in the “America’s Future Brigade” of the New Due Process Army are certainly the face of a coming, better American Justice System. You and your colleagues in the NDPA throughout America, working at all levels, will help usher in a “New Age” where Constitutional Due Process, fundamental fairness, and equal justice for all actually become realities for all persons in our nation!

And, as always, thanks to my friend Dan over at LexisNexis Immigration Community for passing this “good news” along.

Due Process Forever.

PWS

04-05-20

Due Process Forever. Complicity in Racist Abuses, Never!

Related posts:

Related posts:

Due Process Forever! Captive Courts & Complicit Judges, Never!

Related posts:

Due Process Forever.

Related posts: