🤮INEFFECTIVE ASSISTANCE/DEFECTIVE COURTS — 3rd Cir. Exposes Massive Due Process Failure @ Garland’s EOIR! — St. Ford v. A.G.

https://www2.ca3.uscourts.gov/opinarch/211729p.pdf

From Judge Roth’s opinion:

The need for effective assistance of counsel applies in immigration law just as it does in criminal law. Aliens, many of whom do not speak English and some of whom are detained before their immigration hearings, can be particularly susceptible to the consequences of ineffective lawyers.

Petitioner Arckange Saint Ford paid a lawyer to represent him in removal proceedings, but Saint Ford’s requests for relief from deportation were denied after the lawyer failed to present important and easily available evidence going to the heart of Saint Ford’s claims. Saint Ford retained new counsel, and his new lawyer asked the Board of Immigration Appeals to reopen his case because of his former attorney’s ineffective assistance. The Board declined to do so. Because Saint Ford presents a meritorious ineffective-assistance claim, we will vacate the Board’s decision and remand.

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

Arckange Saint Ford will get a second shot at canceling the Government’s order of removal—that’s what matters. The majority is remanding because of his former counsel’s deficient performance at Saint Ford’s removal hearing. I agree with that and concur in full.

But former counsel was not the only one who made significant missteps at the hearing. The Immigration Judge did as well. I therefore would have granted Saint Ford’s initial petition for review and remanded on that basis. I write separately to explain these errors in the hope that similar ones will not be made at Saint Ford’s new hearing.

. . . .

Here, though it was reasonable to request Saint Ford corroborate his testimony about the identity and motive of his harassers, the IJ did not tell him what corroboration she needed or give him a chance to present that evidence. There is no indication she engaged in the Abdulai inquiry as required before skipping straight to “hold[ing] the lack of corroboration against [Saint Ford].” Id. (alterations adopted). She went from first to third across the pitcher’s mound. Our Abdulai inquiry is there to ensure these important corners aren’t cut.

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

What’s wrong with this picture? Going on two decades after the enactment of the REAL ID Act, this IJ gets basic corroboration wrong on a life or death asylum case. Then, she compounds the error by failing to apply a two-decades old circuit precedent. The case sails through the BIA. Then, Garland’s OIL defends the indefensible. “Corner cutting” has become institutionalized, permitted, and even encouraged in today’s broken EOIR!

Meanwhile, it’s left to Circuit Judge Ambro to do the jobs of Garland, his failed BIA, and an IJ badly in need of remedial training! This is an expert tribunal? This is justice? This is due process? Gimmie a break!

This is squarely on Garland! He enables and defends defective, due-process-denying decisions by EOIR. His grotesque failure to appoint and empower a BIA that will end this nonsense and insist on competent legal performance from ALL Immigration Judges in these life or death cases is disgraceful!

Cases like this also “give lie” to the bogus claims that today’s EOIR is comprised of “experts” who can be trusted to remedy due process defects, model best practices, or (perhaps most absurdly) insure that the rights of all respondents, including the unrepresented, are protected. Why is a Dem Administration running a “due process denial machine?” Why is OIL defending the indefensible? Why is Garland still the AG, despite showing little interest and scant skill in creating a due process/fundamental fairness oriented tribunal at the “retail level” of our staggering justice system!

You don’t have to be a “rocket scientist” to trace the disrespect for the Constitutional, statutory, and human rights of migrants, largely individuals of color, to hate crimes, misogyny, curtailment of voting rights, and disrespect for equal justice and racial justice throughout our nation. The stunningly poor performance of the U.S. Immigration Courts under Garland also sets an unfortunate tone for the staggering and highly politicized Federal Court system from bottom to top!

🇺🇸 Due Process Forever!

PWS

05-19-22

🤮☠️ GARLAND’S EOIR STAR CHAMBERS CONTINUE TO GRIND OUT ANTI-ASYLUM TRAVESTIES! — Read What Passes For “Justice” In Garland’s Deadly Parody Of A Court System!

Garland’s “right hand man” on EOIR matters is eerily familiar, in a Himmleresque way! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

Kangaroos — “Miller’s Mob” is still alive and well at Garland’s EOIR. Legal asylum seekers — not so well, not so alive!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Four Horsemen — BIA Asylum Panel In Action — At Garland’s BIA, a “Miller-trained and inspired” Asylum Panel can, and does, kill dozens of unarmed asylum seekers in a single day to “make quota.” Despite being thoroughly discredited for judicial use, Garland has inexplicably continued due-process-denying, corner-cutting, quality-killing “production quotas” for his assembly line worker/judges in Immigration Courts!
Albrecht Dürer, Public domain, via Wikimedia Commons.

Dan Kowalski reports for LexisNexis Immigration Community:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/25/19-72890.pdf

CA9 on Credibility: Munyuh v. Garland

Munyuh v. Garland

“Ms. Munyuh’s case concerns us. From our reading of the record, the IJ seemed determined to pick every nit she could find. Besides erring procedurally, the IJ discounted probative evidence on flimsy grounds and displayed a dubious understanding of how rape survivors ought to act. Although we give great deference to the IJ as factfinder, substantial-evidence review does not require us to credit the credibility finding of an IJ who cherry-picks from—or misconstrues—the record to reach it. The IJ must consider the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). At the very least, the two legal errors we have identified warrant remand. The IJ erred by failing to give specific, cogent reasons for rejecting Ms. Munyuh’s reasonable, plausible explanations for the discrepancies tied to her declaration that the police truck broke down after only four or five kilometers. And she further erred by discounting the supporting documentation without giving Ms. Munyuh adequate notice and opportunity to provide corroborative evidence. We therefore vacate the removal order and remand the case to the Board for further proceedings consistent with this opinion. PETITION GRANTED; VACATED and REMANDED.”

[Hats off to Ronald D. Richey!]

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

Congrats to Attorney Ronald D. Richey, who appeared before me many times at the Arlington Immigration Court.

Here’s a quote from the opinion by Senior Circuit Judge Danny Boggs, a Reagan appointee “on loan” from the 6th Cir., that shows the appallingly unprofessional performance of the Immigration Judge and the BIA in this “life or death” case:

On this point, the IJ made findings with which no reasonable factfinder could agree. She found Ms. Munyuh’s testimony that “the truck had traveled over two hours” to conflict with her earlier estimate that it had traveled “over an hour.” And she found Ms. Munyuh’s redirect testimony that “the truck [had] traveled approximately four to five hours before breaking down” to be “clearly in conflict with each of [Ms. Munyuh]’s prior estimations.”

But these time estimates are all consistent with each other. Indeed, assuming the truck really had traveled for four to five hours, Ms. Munyuh had no other choice but to give those answers. The IJ asked her if the truck had traveled more or less than an hour, to which Ms. Munyuh said more than an hour. Then the IJ asked whether the truck had traveled at least two hours, to which Ms. Munyuh answered in the affirmative.

No reasonable factfinder could find those two statements to conflict with Ms. Munyuh’s later testimony that the truck traveled for four to five hours. The IJ’s contrary finding is therefore unsupported by substantial evidence.

Wow! Is this what constituted “acceptable performance” when Judge Garland was on the D.C. Circuit? And, don’t forget, OIL actually defended this garbage product in May 2021, well after Garland took office and after experts had advised him to “clean house.”

The bad judges at EOIR whose lack of competence and/or bias unfairly condemn asylum seekers to persecution, torture and death, or all three, do NOT have life tenure and should NOT be on the Immigration Bench. Period! It’s not rocket science!

“No reasonable fact finder.” Isn’t that a problem in life or death cases? So-called “judges” who time after time stretch and misinterpret facts, ignore due process, and misapply basic asylum law to unfairly sentence asylum seekers to death! Why isn’t this grounds for removal from the bench? Or at least removing them from all asylum cases!

While Judge Boggs and his colleagues are rightfully “concerned” with EOIR’s performance in this case, Garland doesn’t appear to share those concerns. This is “business as usual” at Garland’s EOIR, just as it was when Stephen Miller was calling the shots! Obviously, Garland isn’t taking the human lives at stake here with even a modicum of seriousness. That’s totally unacceptable! Maybe Judge Boggs needs to pick up pen ✒️ and paper 📜 and express his outrage in writing to his former Circuit Court colleague, attaching an annotated copy of the garbage being turned out by his EOIR Star Chambers!

Star Chamber Justice — Just look the other way, it’s the Garland way! “Justice”
Star Chamber
Style

Also, don’t think that cases like this are an “aberration.” No, they aren’t! The only “aberration” is that this is one of a tiny sliver of injustices that was actually caught and corrected by the Article IIIs. How many unrepresented or under-represented individuals do you think that this judge and this BIA panel “railroad” in a week?

🏴‍☠️⚰️THEATER OF THE ABSURD: Incredibly, Garland & Mayorkas are now proposing to put this “Miller-Lite” EOIR infested with many incompetent, poorly trained, asylum-denying “judges,” with no credible leadership, totally lacking in professionalism and quality control, “in charge” of establishing precedents, insuring, and enforcing due process in their proposed “streamlined” asylum system! In other words, the solution for those who have repeatedly demonstrated an outrageous inability to conduct fair hearings and whose ignorance of asylum law and best practices is often stunning is to put them in charge of doing “paper reviews” of applications denied by Asylum Officers!

https://immigrationcourtside.com/2021/08/18/%F0%9F%97%BDcourtsides-instant-analysis-bidens-proposed-asylum-regs-advocates-beware-%E2%9A%A0%EF%B8%8F%E2%98%B9%EF%B8%8F-despite-a-potentially-workable-framework-adminis/

Good luck with that! Could there be a more insane proposal under current conditions? Making Stephen Miller the new “Asylum Czar” at EOIR? Perhaps, don’t be surprised!

Of course, in the nutsos world of Garland and Mayorkas, their fatally flawed proposal arguably would be a better than the current illegal and immoral use of Miller’s bogus Title 42 scheme to return legal asylum seekers to torture or death WITHOUT ANY PROCESS WHATSOEVER.

It’s simple. A complete “housecleaning” at EOIR, starting with the BIA, new progressive leadership and professional expert training at EOIR and the Asylum Office, new progressive asylum precedents and guidance, and an operating program for universal representation of asylum seekers are ABSOLUTE PREREQUISITES for fair and efficient regulatory reform of the asylum system! In the meantime, allow Asylum Officers to grant asylum to those who pass credible fear, but continue to give full Immigration Court hearings to any who can’t be granted. Get rid of Title 42 and start processing legal asylum seekers in an orderly fashion through ports of entry!

More than seven months into the Administration, Garland and Mayorkas could, and should, have had these needed progressive personnel, leadership, and structural changes in place, producing due process, and most important, actually saving lives! Instead, they have wasted time and squandered goodwill by continuing to run Stephen Miller’s White Nationalist system with Miller’s personnel in place! Simply incredible!

And, the bumbling, highly predictable weakness of the team of DOJ lawyers trying to defend the Administration’s few humanitarian immigration initiatives has become patently obvious. How can you expect lawyers who have spent the last four years misrepresenting asylum seekers as less than human and a threat to society suddenly start setting the record straight and effectively advocating for their human and legal rights? Obviously, they can’t! While EOIR is clearly the most glaringly dysfunctional part of DOJ, it’s obviously not the only problem and the only place Team Garland needed to (but didn’t) “clean house.”

I “get” that this isn’t Judge Bell’s, Ben Civiletti’s, or Janet Reno’s DOJ any more! But, remarkably, and tragically for the poor souls and their lawyers involved, Garland doesn’t!

🇺🇸Due Process Forever!

PWS

08-26-21

⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮

Judge Merrick Garland — Attorney General Hon. Merrick B. Garland — Are these really what “A” papers looked like when he was at Harvard Law? If not, how come it’s now “good enough for government work” when it’s only the lives of the most vulnerable among us at stake?”
Official White House Photo
Public Realm

Dan Kowalski forwards these two 2d Circuit reversals on basic “bread and butter” issues: 1) mental competency (BIA unable or unwilling to follow own precedent); 2) credibility; 3) corroboration; 4) consideration of testimony and evidence:

https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/doc/18-1083_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/85d225f1-0b15-44a9-8890-80f9027d12b5/3/hilite/

https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/doc/19-1370_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/57161a21-b70c-4b36-9a38-ff6a88d12453/14/hilite/

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

These aren’t “cases of first impression,” “Circuit splits,” complex questions involving state law, unusual Constitutional issues, or difficult applications of treaties or international law. No, these are the “basics” of fair, competent adjudication in Immigration Court. Things most law students would get correct that IJs and BIA Appellate Judges are getting wrong on a daily basis in their “race to deny.”

Don’t kid yourself! For every one of these “caught and outed” by Circuit Courts, dozens are wrongly railroaded out of America because they are unrepresented, can’t afford to pursue judicial review in the Article IIIs, or are duressed and demoralized by unconstitutional detention and other coercive methods applied by the “unethical partnership” between EOIR and ICE enforcement.

Others have the misfortune to be in the 5th Circuit, the 11th Circuit, or draw Circuit panels who are happy to “keep,the line moving” by indolently “rubber stamping” EOIR’s “Dred Scottification” of “the other.” After all, dead or deported (or both) migrants can’t complain and don’t exercise any societal power! “Dead/deported men or women don’t talk.”☠️⚰️ But, members of the NDPA will preserve and tell their stories of unnecessary human suffering and degradation for them! We will insure that Garland, Monaco, Gupta, and others in the Biden Administration who ignored their desperate moans and tortured screams in their time of direst need are held accountable!🤮

Unfortunately, these decisions are unpublished. They should be published! It’s critically important that the daily gross miscarriages of justice @ EOIR be publicly documented, citable as precedent, and serve as a permanent record of perhaps the most unconstitutional and corrupt episode in modern American legal history.

It’s also essential to keep the pressure on Garland and his so far feckless lieutenants to fix the problem:

Remove the Trump/Miller holdovers @ EOIR;
Prune out the “go along to get along” deadwood;
Rescind the improper hiring of 17 “Billy the Bigot” judicial selections (including the one absurdist selection by “AG for a Day Monty Python” — talk about a “poke in the eyes with a sharp stick” to progressives);
Bring in top notch progressive practical scholars as leaders and REAL judges at both the appellate and trial levels of EOIR – NOW;
Make the “no brainer” changes to eradicate Trump-era unethical, xenophobic “precedents” and inane “rules” and establish due process and fundamental fairness, including, of course, racial and gender equity in decision making.

So far, Garland has pretended that the “Culture of Denial” flourishing under his nose at HIS EOIR doesn’t exist! It does exist — big time — and it continues to get worse, threaten more lives, and squander more resources every day!

Due process (not to mention simple human decency) requires bold, immediate ACTION. Garland’s continued dawdling and inaction raises the issue of what is the purpose of an Attorney General who allows his “delegees” (basically Stephen Miller’s “judges”) to violate due process every day! There is no more important issue facing the DOJ today. Garland’s silence and inaction raise serious questions about his suitability to serve as the American public’s top lawyer!

Garland, Monaco, and Gupta appear to be enjoying their “Miller Lite Happy Hour @ DOJ.” Those communities of color and women suffering from their indolence and inaction, not so much! — “Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color

Woman Tortured — Abused, battered refugee women don’t appear to be enjoying “Miller Lite Time” @ DOJ quite the way Garland, Monaco, and Gupta are! Hard to hold that 16 oz. can when your hands are shackled and you are being “racked” by A-B-, L-E-A-, Castro-Tum and other “Miller brewed” precedents. “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

🗽⚖️🧑🏽‍⚖️Due Process Forever!

PWS

05-24-21

EOIR WRONG AGAIN: Split 6th Cir. Says BIA Screwed Up Corroboration, Nexus Requirements In Mexican PSG Withholding Case — GUZMAN-VAZQUEZ v. BARR!

Dan Kowalski report from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-corroboration-social-group-guzman-vazquez-v-barr

CA6 on Corroboration, Social Group: Guzman-Vazquez v. Barr

Guzman-Vazquez v. Barr

“Manuel Guzman, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of his application for withholding of removal. Because the IJ and BIA erred in failing to give Guzman an opportunity to explain why he could not reasonably obtain certain corroborative evidence, because substantial evidence does not support the Immigration Judge (“IJ”) and BIA’s determinations regarding the unavailability of evidence to corroborate Guzman’s claim about abuse by his stepfather, and because the BIA incorrectly required Guzman to demonstrate that his membership in a particular social group was “at least one central reason” for his persecution, we GRANT the petition for review, VACATE the BIA’s order, and REMAND for proceedings consistent with this opinion.”

[Hats off to R. Andrew Free!]

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

PANEL: MERRITT, MOORE, and MURPHY, Circuit Judges.

OPINION: Judge Moore

DISSENT: Judge Murphy

In looking for ways to deny protection, the BIA continues to “blow the basics.” That’s going to continue to happen as long as EOIR is allowed to operate as a branch of DHS Enforcement rather than a fair-minded, impartial court system with true expertise and which grants needed protection in meritorious cases, rather than searching for specious “reasons to deny.”

No wonder the EOIR backlog is mushrooming out of control when those responsible for doing justice waste countless time and resources “manufacturing denials,” rather than just promptly granting relief in many meritorious cases.

PWS

05-18-20

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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

So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.”

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made. Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

9TH CIR: BIA BOBBLES ROUTINE CREDIBILITY DETERMINATION – FAILS TO APPLY “TOTALITY OF CIRCUMSTANCES” — HUINAN LIN v. SESSIONS

9TH CIR Lin v. Sessions, 9th, Credibility

Huinan Lin v. Sessions, 9th Cir., 01-26-17, unpublished

PANEL: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.

OPINION: PER CURIAM

KEY QUOTE:

“Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for assuming Bao’s account was fabricated and her husband Zheng’s was the correct account of facts). The IJ found that nothing in Lin’s demeanor detracted from her credibility, yet rejected all of Lin’s explanations, even when she stood by her own version of events. We conclude that the overall reliance on Cao’s asylum application and prior testimony was arbitrary.

As Lin argues, the totality of the circumstances compel that she should be deemed credible. Because neither the BIA nor the IJ made an adverse credibility

3

finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to have the abortion performed. Qin Lin stated that she took care of Lin two days after the abortion while she was crying, pale, and weak. See Shrestha v. Holder, 590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore evidence that corroborates the alien’s claim). The 1999 Country Conditions Report notes that forced abortions and sterilizations occurred despite China’s official policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the evidence in her case, Lin provided documentation from Jiangjing Town Hospital showing that she had an abortion on December 27, 2000. Lin also provided a notice addressed to her to report for IUD and pregnancy checks from the Cangxi Village Committee. The notice stated that if she did not report to the Family Planning Office, she “will be punished pursuant to relevant Family Planning Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in Hawaii showed that Respondent’s second IUD was removed on September 15, 2008. The Government did not object to the submission of these copies and there was nothing in the record to “support a finding that the documents [were] not credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding

4

documentary support credible where “there was no opposition to the introduction or challenge to the authenticity of these documents by the INS,” even where the IJ found the documents unbelievable). Because the documentation and Qin Lin’s testimony are credible, they corroborate her past persecution claim, i.e., that she had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at 1040–41.

After a reversal of an adverse credibility determination, “[w]e must now decide whether we determine eligibility for asylum and withholding of removal or whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As set forth above, this Court finds credible Lin’s claim that she was forced to abort her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the totality of circumstances, there is no “reasonable prospect from the administrative record that there may be additional reasons upon which the IJ or BIA could rely” to find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th Cir. 2009).

In sum, we grant the petition in part and hold that Lin is entitled to withholding of removal as a matter of law. In addition, since Lin is statutorily

5

eligible for asylum, we remand to the BIA so that the Attorney General may exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489 F.3d. at 992. We deny the petition in part as to the due process violation claim and challenge to the IJ’s finding of fear of future persecution.”

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

You can read the full opinion at the link. Unfortunately, as with many Circuit Court opinions these days, it is “unpublished.” But, it is very instructive.

Yes, as a former BIA Chair and Appellate Judge, I “get it” that the BIA has lots of cases and nobody’s perfect. Certainly, I made my share of mistakes in my career. But, as I have noted before, these are hardly “major questions of law” on which divergence of opinion between the BIA and the Circuit Courts is understandable.

No, they are “failures of mechanics” — failure to correctly apply the everyday rules that Immigration Judges are supposed to be following in Immigration Courts across the country. And, although the legal issues might not be profound, the effects of such mistakes have a profound adverse effect on individuals’ lives.

This respondent was entitled to mandatory protection that the BIA was perfectly ready to ignore had the respondent not had the good fortune to have a persistent attorney to help her perfect an appeal to the Ninth Circuit. Many respondents in this system, however, do not have the good fortune to be so competently represented at their trial level and have no chance of winning an appeal without attorney assistance.

All of this points to the logical conclusion that the U.S. Immigration Courts, at both the trial and appellate levels are already running at “warp speed” where serious mistakes in the application of routine rules and precedents are all too common. To suggest, as Jeff “Gonzo Apocalyto” Sessions has, that the solution is to make the system go even faster, impose “production quotas,” and restrict the already limited rights of the individuals seeking justice from this system is totally absurd! Yet, he’s getting aways with it, at least so far.

We need an independent Article I U.S. Immigration Court where quality, fairness, Due Process, and “getting it right” are the driving considerations. Until we get such a court, we will be falling short of our Constitutional obligation to provide fair and impartial decisions to those coming before the U.S. immigration system.

PWS

10-29-17

7th Slams IJ, BIA For Mishandling Of Credibility, Corroboration Issues In Moldovan Asylum Case — COJOCARI V. SESSIONS!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-11/C:16-3941:J:Hamilton:aut:T:fnOp:N:1992923:S:0

Key quote:

“We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that.

No. 16‐3941 27

Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis.

Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge).

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.”

PANEL: Chief Judge Wood, Circuit Judges Manion and Hamilton.

OPINION BY: Judge Hamilton

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Gee, who needs training when things like this can get through the system?

PWS

07-13-17

From Judge Roth’s opinion:

And concurring Judge Ambro had a harsh assessment of the IJ, the BIA, and most of all A.G. Garland, who has been remarkably “tone deaf” about correcting the grotesque expertise and due process problems in his “wholly owned, astoundingly dysfunctional” Immigration “Courts:”

🇺🇸 Due Process Forever!

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🇺🇸Due Process Forever!

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