Crespin-Valladares v. Holder – immigrationcourtside.com

⚖️🗽😎 CRAVATH CELEBRATES PRO BONO WEEK WITH A BIG “W” — Case Had Been Pending 5 Years Because Of Bad Decisions From BIA, IJ!

Wes Earnhardt, Esquire
Partner
Cravath, NYT Office
PHOTO Cravath

On August 30, 2023, Judge Leo A. Finston of the Newark Immigration Court granted asylum to a Cravath pro bono client persecuted by gang members in El Salvador.

Cravath’s client overheard the murder of his neighbors by a Salvadoran gang and, fearing retaliation from the gang, subsequently refused to provide police with information. Even so, he was repeatedly attacked and continued to receive threats to “cooperate with the gang.” He fled El Salvador and arrived at the Texas border in December 2017, turning himself in to United States immigration officials and requesting asylum. He was detained, and Human Rights First represented him before the Immigration Court in Newark, New Jersey.

In September 2018, Judge Finston denied the application for asylum, finding that, while the man was credible and had suffered PTSD from the events in El Salvador, “complaining witnesses against major Salvadoran gangs” were not a “particular social group” for purposes of asylum, and there was not sufficient probability that he would be tortured upon his return to El Salvador. In March 2019, the Board of Immigration Appeals (BIA) dismissed the initial appeal. Cravath became involved at this stage, briefing and arguing the appeal before the Third Circuit Court of Appeals.

On April 17, 2020, the Third Circuit issued a precedential opinion (see related news item here) granting the client’s petition for review, vacating the BIA’s removal order and remanding the case to the BIA for further proceedings. The Court held that “persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group” for purposes of asylum, and that the BIA erred in denying relief under the Convention Against Torture, finding that “it is clear to us, viewing the record as a whole, that [he] suffered torture”. The Court remanded the case to the BIA, and in December 2021, the BIA remanded the matter to the Newark Immigration Court for further proceedings.

By that time, Cravath’s client was living in hiding in El Salvador, and the Cravath team spent the next year and a half trying to secure his return for a new merits hearing, consistent with the Third Circuit’s opinion.

On July 20, 2023, at a Master Calendar Hearing before Judge Finston, the Cravath team argued the man had a meritorious case and constitutional due process and statutory rights to be present at his merits hearing, but the Department of Homeland Security took the position that it had no obligation to allow him to return. On August 30, 2023, the Cravath team appeared on the client’s behalf at a second Master Calendar Hearing, where Judge Finston found that, in light of the Third Circuit’s opinion and based on the record before him, it was clear the man qualified for asylum and no further proceedings were necessary.

The Cravath team was led by partner Wes Earnhardt and included associates Brian P. Golger and Ana C. Sewell.

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Many congrats to Cravath!

I told the BIA that witnesses were a PSG more than a decade ago! They wouldn’t listen, but the Fourth Circuit did! See Crespin-Valladares v. Holder, 632 F. 3d 171 (4th Cir. 2011). When will they ever learn?

With proper guidance from a competent BIA, this case should have been a “slam dunk grant” five years ago. This also illustrates the absurdity of those who disingenuously claim that asylum applicants can receive due process without competent representation! It also shows the legal and moral bankruptcy of “expedited docket gimmicks” that attempt to rush cases to denial and deportation without a realistic chance to get representation and prepare!

The U.S. asylum system would work much more fairly and efficiently with a BIA of recognized asylum experts! They are out here! Why hasn’t Garland reformed and reconstituted the BIA to get the job done?

Lives and the future of American law are at stake here!

It’s a huge deal! Dems must “lose” the arrogant “it’s only immigration” attitude that has prevented Dem Administrations from doing the correct, courageous (and smart) thing on immigration, human rights, social justice, and civil rights! Migrants’ rights are human rights are civil rights are everyone’s rights!

Judge Finston did the right thing on remand from the Circuit. I’d like to believe that with better guidance from the BIA he would have done it five years ago. The human impact of the abject failure of the BIA to provide positive leadership on GRANTING asylum in recurring situations is an incomprehensible drag on our justice system at many levels.

Better judges for a better America! And, it starts at the “retail level” with EOIR!

🇺🇸 Due Process Forever!

PWS

11-2-23

4TH CIR. — BIA WRONG AGAIN 👎🏻🤮 ON ASYLUM DENAL — IN RUSH TO WRONGFULLY DENY LIFE-SAVING PROTECTION, ☠️⚰️ BIA FAILS TO FOLLOW CIRCUIT PRECEDENTS ON THREATS AS PAST PERSECUTION! — BEDOYA V. BARR

https://www.ca4.uscourts.gov/opinions/191930.P.pdf

Bedoya v. Barr, 4th Cir., 11-25-20, published

PANEL: KING, KEENAN, and HARRIS, Circuit Judges

OPINION BY: JUDGE KING

KEY QUOTE:

The BIA fatally erred in deciding that Officer Bedoya had not established past persecution because the various threats were merely “written” and because Bedoya was never physically approached by FARC members. See Zavaleta-Policiano, 873 F.3d at 247; Crespin-Valladares, 632 F.3d at 126-27. We have recognized that “the threat of death alone constitutes persecution,” see Tairou v. Whitaker, 909 F.3d 702, 708 (4th Cir. 2018), and we have never required that a petitioner be physically harmed or personally approached

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in order for the threats to qualify as persecution.4 Moreover, our precedents in Zavaleta- Policiano and Crespin-Valladares demonstrate that death threats may be written. Indeed, written home-delivered death threats and text messages can easily be more menacing than verbal threats, in that they show that the writer and sender knows where his target lives and the relevant personal cellphone number.

The BIA also emphasized the period of time between the threats that Officer Bedoya received in 1996 and those he received in 2013. That period, however, is not dispositive of Bedoya’s asylum claim, in that he has clearly shown past persecution on the basis of the threats he received in 2013. The earlier incident in 1996 — where Bedoya’s friend Correa was killed for trying to protect Bedoya from FARC — simply bolsters Bedoya’s asylum claim and highlights FARC’s “penchant for extracting vengeance.” See Crespin-Valladares, 632 F.3d at 126-27. Moreover, if FARC is targeting former Colombian police officers for their past actions, there is inevitably going to be a time gap between the actions of such officers and when an officer retires.

In sum, Officer Bedoya received multiple threats of death and harm to himself and his family, and the BIA’s determination that Bedoya had not suffered past persecution was manifestly contrary to the law and constituted an abuse of discretion. See Tairou, 909 F.3d

4 Notably, in a recent unpublished opinion, we emphasized that “[w] Lopez-Orellana v. Whitaker, 757 F. App’x 238, 242 (4th Cir. 2018).

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e have never

adopted a requirement that an [asylum] applicant suffer physical harm [in order] to show

past persecution.” See

at 708; Crespin Valladares, 632 F.3d at 126. We therefore reverse the BIA’s ruling that Bedoya failed to establish that he was subject to past persecution.

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Notably, the key 4th Circuit precedent that the BIA ignored here, Crespin-Valadares v. Holder, was my case at the Arlington Immigration Court. I had granted asylum, the BIA reversed me, and the 4th Circuit reversed the BIA. In other words, I was right and the BIA was wrong! But hey, who’s keeping score?

The continuing abuses by the BIA of asylum law and controlling Circuit precedents favoring asylum grants is in the “when will they ever learn” category. Instead of carefully and forcefully building a body of case law amplifying Crespin-Valladares and applying it broadly to insure more expeditious asylum grants at the “retail level” of our system — the Asylum Office and the Immigration Courts — the BIA insists on the illegal (not to mention immoral) “any reason to deny” approach improperly promoted by White Nationalist racist restrictionist AGs Sessions & Barr.

EOIR could function, as it was intended, as a model of scholarship, due process, fundamental fairness, and equal justice insuring the granting of the generous protection described by the Supreme Court in Cardoza in many more cases. EOIR could become a model of humane, practical, efficient, best practices jurisprudence that would reduce dockets by promoting correct results at the Asylum Office and trial levels and taking pressure off of the Circuit Courts by minimizing improper denials of relief that engender unnecessary litigation.

But, that’s not going to happen until the current group of deficient, biased EOIR Executives and BIA Judges is replaced by qualified “practical scholars” from the NDPA who are experts in asylum law and will ensure that necessary, life-saving protection is granted wherever possible.

Due Process Forever!

PWS

12-01-20

🇺🇸 Due Process Forever!

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