"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”
“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”
[Hats off to Glenn Fogle! Listen to the oral argument here.]
“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”
“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”
Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:
5. Experts
Unpublished 1st Cir. Victory [Experts]
[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!
More to follow. We continue to make a difference!
Best, Jeff
I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.
Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?
In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process.
As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.
Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.
Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!
As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.
If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!
“Catch 22” — the applicant loses either way!
Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.
The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!
Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”
Congrats, Danielle, and thanks for all you do!
Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system!
What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?
“Petitioner Christian Alberto Santos Garcia, a native and citizen of El Salvador, has twice travelled unlawfully into the United States — first in 2012, and again in 2016. In both instances, Garcia fled threats to his life and attacks carried out against him by the 18th Street Gang and the Salvadoran police. After seeking protection from removal before an immigration judge (the “IJ”) in 2016, Garcia was afforded relief — in the form of asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”) — by three separate IJ rulings. On each occasion, the Board of Immigration Appeals (the “BIA”) reversed the IJ rulings. Garcia, for his part, was removed to El Salvador in May 2022, and has awaited further developments in these proceedings from his home country. In this appeal, Garcia challenges and seeks reversal of three rulings made by the BIA — those being: (1) that the “particular social group” relied upon in connection with Garcia’s application for withholding of removal is not legally cognizable; (2) that Garcia was not persecuted in El Salvador on account of his political opinions; and (3) that Garcia failed to establish eligibility for CAT protection. As explained herein, we grant Garcia’s petition for review and reverse the BIA rulings in part, affirm them in part, and vacate them in part. We otherwise remand to the BIA for such further proceedings as may be appropriate.”
“Petitioner Juan Pablo Paucar petitions for review of a January 22, 2021 Board of Immigration Appeals (“BIA”) decision (1) affirming an Immigration Judge’s denial of his application for cancellation of removal and (2) denying his motion to remand. The BIA rejected Paucar’s ineffective assistance of counsel claim, declined to remand for consideration of additional hardship relating to his cancellation application, and declined to remand to await adjudication of his U visa application. Paucar argues that the BIA (1) applied an incorrect standard when reviewing his ineffective assistance of counsel claim, (2) overlooked and mischaracterized his new hardship evidence, and (3) failed to follow precedent when denying his request for remand while awaiting the adjudication of his U visa application. We are persuaded by Paucar’s arguments. Accordingly, we GRANT Paucar’s petition for review, VACATE the BIA’s decision, and REMAND for further proceedings consistent with this opinion.”
In Santos-Garcia v. Garland, the BIA’s 6-year quest to wrongfully deny protection to Santos has been thwarted, for now. But, the matter remains far from finally resolved, even though an IJ has now properly granted Santos relief three separate times, only to be wrongly reversed by the BIA on each occasion!
Rather than insuring that individual justice is done, the BIA has acted to promote injustice, create needless delay, and demoralize IJ’s who are getting it right! In the meantime, the respondent has been removed to the country where he has a well-founded fear of persecution to await his fate. This is because the 4th Circuit denied a stay they should routinely have granted in an exercise of truly horrendous judicial misjudgment.
Now, the court majority fecklessly pontificates about the need for timely resolution (you’ve got to be kidding) while hinting, but not requiring, that the “Gang That Can’t Shoot Straight” should return the respondent now. Don’t hold your breath!
Here are three of my favorite quotes from Judge King’s majority opinion in Santos Garcia v. Garland.
Put simply, the BIA declined to “interact seriously” with the record before it in reviewing Garcia’s claim for CAT protection, and its failure in that regard requires a remand.
Should we not expect a supposed “expert tribunal” like the BIA should be to “seriously interact” with the record in life-or-death cases?Why aren’t Dems in Congress and everywhere else “all over Garland like a cheap suit” to stop this kind of judicial misbehavior in his “wholly owned courts?”
In closing, we recognize that Garcia’s removal proceedings have languished before the IJ and the BIA — and now this Court — for more than six years, leaving him in limbo and presently in harm’s way in El Salvador. We are also mindful that Garcia was only 15 years old when he sought to protect his cousin from the 18th Street Gang’s advances, setting off more than a decade of hardship and uncertainty. With that, we emphasize the “strong public interest in bringing [this] litigation to a close . . . promptly.” See Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007). And although we do not direct the affirmative award of any relief, we acknowledge the compelling case for protection that Garcia has made. If, on remand, the BIA affirms either the IJ’s award of withholding of removal or the award of CAT relief, the DHS and the Attorney General should swiftly “facilitate [Garcia’s] return to the United States” from El Salvador. See Ramirez v. Sessions, 887 F.3d 693, 706 (4th Cir. 2018) (directing the government to facilitate previously removed petitioner’s return to the United States pursuant to an Immigration and Customs Enforcement Policy Directive). Moreover, if the BIA determines that Garcia’s “presence 24 is necessary for continued administrative removal proceedings” on remand, the authorities should see to his prompt return. Id.
So, after six years bouncing around the system and three separate grants of asylum by an Immigration Judge, the 4th Circuit essentially “begs” the BIA to get it right this time! This is after the court itself curiously denied the respondent’s application for stay notwithstanding the rather obvious risk of irreparable harm (e.g., death, torture) and the equally obvious substance of his timely filed appeal.
What a way to run a “justice system” (or, in this case, not)! Both the Executive and the Judiciary should be totally embarrassed by their gross mishandling of this case! But, I see resolve from neither Branch (nor the ever-absent Legislature) to put an end to this systemic mockery of due process, fundamental fairness, and simple common sense!
Here, discovering the BIA’s error in rejecting Garcia’s proposed social group of “young male family members of his cousin Emily” is no herculean task. Social groups based on family ties have been consistently approved by this Court as providing a sound basis for asylum or withholding of removal applications. See, e.g., Salgado-Sosa, 882 F.3d at 457; Hernandez-Avalos v. Lynch, 784 F.3d 944, 949 (4th Cir. 2015); Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020). Indeed, our pivotal 2011 decision on the matter — Crespin-Valladares v. Holder — recognized in no uncertain terms that “the family provides a prototypical example of a particular social group.” See 632 F.3d at 125. In tossing out Garcia’s proposed social group in March 2021, however, the BIA largely disregarded our precedent, providing no citation to or discussion of Crespin-Valladares. The BIA instead relied chiefly on its own then-existing precedent, set forth in the Attorney General’s 2019 L-E-A- II decision. As described above, L-E-A- II — which was vacated by the Attorney General in June 2021 and thus “lacks legal force” — “conflicted with [this Court’s] well-established precedent” recognizing families as cognizable social groups. See Perez Vasquez v. Garland, 4 F.4th 213, 227 n.11 (4th Cir. 2021). Surprisingly, the BIA paid little mind to L-E-A- II’s vacatur in its Reconsideration Order of 2022, doubling down on its earlier “particular social group” ruling and again inexplicably declining to apply Crespin-Valladares and its progeny.7
Notably, the “rule of Crespin-Valledares” — my case where the BIA erroneously reversed me — continues to have an impact! A dozen years post-Crespin and the BIA is still getting it wrong! Why are these guys still on the appellate bench, setting negative precedents and ignoring favorable precedents? In a Dem Administration? Seriously!
Michelle N. Mendez, ESQ Director of Legal Resources and Training National Immigration Project, National Lawyers Guild PHOTO: NIPNLG
My friend Michelle Mendez, Director of Legal Resources and Training over at National Immigration Project offered some commentary on the Second Circuit’s decision in Paucar v. Garland.
Congratulations and thank you for your superb work, Lindsay! This case offers so much and seems like the CA2 delivered.
Here are a couple of excerpts from the decision that stood out to me:
“In a January 14, 2020 written decision, the BIA dismissed Paucar’s appeal and denied his motion to reopen and remand. Three months later—after Paucar filed a petition to review the BIA’s decision in this Court—the BIA sua sponte reinstated Paucar’s appeal and motion, noting that it had not “consider[ed] all of the evidence submitted by [Paucar].” Id. at 124.” [Do we know why the BIA sua sponte reinstated the appeal and motion?] LINDSAY NASH RESPONDS: “The BIA only sua sponte reopened the appeal and motion because Paige Austin (co-counsel extraordinaire, copied here) filed a PFR and identified the missing evidence early on, prompting OIL to agree to a remand.”
“Finally, the BIA concluded that remand to await the adjudication of Paucar’s U visa petition was unnecessary because Paucar could request a stay of removal from USCIS.” [Does anyone know what the BIA was referencing here? Later on the decision says DHS and not USCIS so perhaps it is a typo.] LINDSAY NASH RESPONDS: “I think that the reference to USCIS that you flag was a typo and that it should have said DHS.”
“We conclude that the BIA should have applied the Sanchez Sosa factors in considering Paucar’s motion to remand as it pertains to his U visa or explained its reasoning for not doing so. [This is the first time that the CA2 answers the question of whether Sanchez Sosa applies to motions to remand or reopen filed during the pendency of an appeal where the noncitizen did not previously request such a continuance before the IJ].”
There is a great discussion on the BIA improperly applying Coelho (which they love to throw around in correctly) to the prejudice assessment and a paragraph discussing how the CA2 and other courts of appeals view unpublished BIA decisions.
Again, really great work and outcome! Thanks for sharing with all of us, Dan!
For a case distinguishing Coelho and applying a “reasonable likelihood of success” standard to a MTR, see Matter of L-O-G-, 21 I&N Dec. 436 (BIA 1996), written by me! The BIA ignores it or misapplies it in many cases. But, it’s still “good law!” Just another instance in which the BIA evades “older” precedents that could produce favorable outcomes for respondents!
In this case the IJ denied the respondent’s applications and ordered removal in May 2018, five years ago. Nobody contests that the respondent was ineffectively represented at that time.
Through new pro bono counsel, respondent Paucar filed a timely appeal with the BIA. Less than two months following the IJ’s decision, new counsel filed a copiously documented motion to the BIA to remand for a new hearing because of the ineffective representation.
Rather than promptly granting that motion for a new hearing, the BIA set in motion five years of dilatory effort on their part to avoid providing a hearing. Obviously, several new merits hearings could have been completed during the time occupied by the BIA’s anti-immigrant antics!
Along the way, according to the Second Circuit, the BIA “improperly imposed a heightened standard,” “erred by discounting the impact of counsel’s ineffectiveness,” “improperly relied] on the IJ’s tainted findings,” “overlooked and mischaracterized the record evidence,” “erred by overlooking or mischaracterizing evidence,” “overlooked and mischaracterized material evidence,” and failed, without explanation, “to follow its own precedent.” What else could they have screwed up? The file number?
This would be highly unacceptable performance by ANY tribunal, let alone one entrusted with making life or death decisions about human lives and whose decisions in some instances have been unwisely insulated from effective judicial review by Congress. Individuals appearing before EOIR deserve better! American justice deserves better! How long will AG Garland continue to get away with failing to “clean house” at America’s most dysfunctional court system and bring order, due process, fundamental fairness, legal expertise, and judicial professionalism to this long-overlooked, yet absolutely essential, foundation of our entire U.S. justice system!
Wasting time and resources looking for bogus ways to deny that which better, more expert, fairer judges could easily grant his had a huge negative impact on the EOIR backlog and is a driver of legal dysfunction throughout the immigration bureaucracy, and indeed throughout our entire legal system, all the way up to and including the Supremes!
Start by fixing “that within your control!” That’s a simple message that Dems, unfortunately, don’t seem to get when it comes to immigration, human rights, and racial justice in America!
“We must decide whether Ramírez’s conduct—lying to local authorities about U.S. citizenship—was for a “purpose or benefit under” a particular law. The BIA, relying on its Richmond decision, concluded that Ramírez lied about his citizenship “for the purpose of avoiding removal proceedings.” See In re Richmond, 26 I. & N. Dec. 779, 788 (B.I.A. 2016) (holding that a “purpose” under a law “includes the avoidance of negative legal consequences— including removal proceedings”). The BIA’s interpretation of § 1182(a)(6)(C)(ii)(I) is untenable. We agree with our sister circuit that “the BIA’s construction of the ‘purpose or benefit’ language [is] . . . ‘unmoored from the purposes and concerns’ of the statute.” Castro v. Att’y Gen., 671 F.3d 356, 370 (3d Cir. 2012) (quoting Judulang v. Holder, 565 U.S. 42, 64 (2011)). … We conclude that Richmond’s construction of “under” is unreasonable and do not afford it any deference. Consequently, we reject Richmond’s derivative holding that “[t]he term ‘purpose’ . . . includes the avoidance of negative legal consequences—including removal proceedings.” … We therefore grant the petition for review and remand to the agency to either grant Ramírez’s application for adjustment of status or explain, consistent with this opinion, why not.”
Trust the BIA under Garland to come up with “teaching examples” of what’s wrong with EOIR!
Just last week we were discussing “Chevron deference” (a/k/a “Article III judicial task avoidance”) in my Immigration Law & Policy class at Georgetown Law. “Unreasonable interpretation” was one of the three ways we discussed for the Article IIIs to avoid giving Chevron deference to the BIA (the other two being “plain meaning” and “not your field of expertise”).
This is a classic (if rather brutal) example of the “unreasonable” exception to Chevron.
One reason why the “21st Century BIA” has become “unmoored” is that it is basically “tethered” to whatever DHS Enforcement wants and what appears to line up with an Administration’s “immigration enforcement agenda.” In other words, the BIA tends to interpret ambiguous statutes with “career preservation” rather than “best interpretations” in mind. That’s generally bad news for individuals seeking due process and fundamental fairness in life or death matters before EOIR!
That’s a chance for NDPA “practical scholar/experts” to start counteracting what has been a two-decade downward spiral of due process, fundamental fairness, and best practices at this oft-ignored “life or death tribunal” with nationwide jurisdiction.
“Dagoberto Luna petitions for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge’s denial of his motion to rescind an in absentia removal order. Luna contends he received a defective Notice to Appear that renders the in absentia removal order invalid. We agree. We GRANT Luna’s petition, VACATE, and REMAND for further proceedings.”
[Hats off yet again to superlitigator Raed Gonzalez!]
When will they learn, when will they ever learn? The ultra-conservative 5th Circuit pays attention when Raed litigates in behalf of individuals seeking due process and fundamental fairness at EOIR. Why doesn’t Garland?
Women find “trial by ordeal” can be the order of the day at Garland’s BIA:
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Dan Kowalski reports for LexisNexis Immigration Community:
CA11 on VAWA, “Extreme Cruelty,” Chevron: Ruiz v. Atty Gen.
“Esmelda Ruiz, a native and citizen of Peru, appeals the Board of Immigration Appeals’ determination that she is ineligible for relief under 8 U.S.C. § 1229b(b)(2), a provision whose language was originally adopted as part of the Violence Against Women Act of 1994 and that outlines the conditions under which certain “battered spouse[s] or child[ren]” qualify for discretionary cancellation of removal. As relevant here, it requires a petitioning alien to show that she “has been battered or subjected to extreme cruelty” by her spouse or parent. 8 U.S.C. § 1229b(b)(2)(A)(i). Ruiz contends that the Immigration Judge and the BIA made two errors in refusing her cancellation request. First, she maintains that, as a matter of law, they misinterpreted the statutory term “extreme cruelty” to require proof of physical—as distinguished from mental or emotional—abuse. And second, she asserts that, having misread the law, the IJ and the BIA wrongly concluded that she doesn’t qualify for discretionary relief. We agree with Ruiz that the IJ and the BIA misinterpreted § 1229b(b)(2) and thereby applied an erroneous legal standard in evaluating her request for cancellation of removal. Accordingly, we grant her petition for review and remand to the BIA for further consideration. … For the foregoing reasons, we agree with Ruiz—and hold— that the BIA misinterpreted 8 U.S.C. § 1229b(b)(2). The term “extreme cruelty” does not require a petitioning alien to prove that she suffered physical abuse in order to qualify for discretionary cancellation of removal; proof of mental or emotional abuse is sufficient to satisfy the “extreme cruelty” prong of § 1229b(b)(2)’s five-prong standard. We therefore GRANT the petition in part and REMAND to the BIA for further proceedings consistent with this opinion.”
Not only did the supposedly “expert” BIA get the standard completely wrong, but Garland’s OIL continued to throw up specious arguments defending the BIA’s abusive treatment of women!
When you start with “No,” and then “reason” backwards to get there, bad things happen. Frankly, the Biden Administration was elected to “clean house” 🧹 at EOIR and to bring systemic due process, expertise, best practices, and impartiality to our nation’s dysfunctional immigration tribunals — with literally millions of lives and the future of democracy at stake! Why haven’t they done it? How do they continue to get away with it?
Pooja Asnani reports from Sanctuary For Families NY:
Hi all,
I wanted to share a recent asylum grant won by my colleagues, Deirdre Stradone, Amalia Chiapperino, and Kelly Becker-Smith, before IJ McKee at the NYC immigration court.
Client is Honduran Garifuna woman who survived DV and gang violence, and, importantly for the grant of asylum, forced sterilization. Below is a quick summary of the case, and I’m highlighting this asylum grant because our team, specifically Deirdre, has been seeing more and more cases of forced sterilization among Central American women.
Respondent is a forty-five-year-old Honduran Garifuna woman who has been the victim of forced sterilization, severe verbal, physical, and sexual violence, robbery and death threats by gang members, and intentional deprivation of law enforcement assistance and medical attention due to her race and gender. Overwhelming evidence affirms the horrific practice of forced sterilization against Garifuna women, as well as the high levels of domestic and gang violence in Honduras that take place with impunity. The evidence shows that government authorities largely fail to respond to complaints of abuse, or when they do respond, fail to do so effectively.
Deirdre has been collaborating with the Mt. Sinai Human Rights program to study the forced sterilization of Central American women, a topic she had encountered over and over again in her asylum cases, with the researchers agreeing that this particular violation of human rights is likely more common than is being research and reported. Deirdre has found several reports and studies conducted regarding indigenous, mainly Garifuna, women living with HIV who have been victims of this practice. As you all probably know, and stemming from the response to China’s one-child policy, forced sterilization is defined in the Immigration and Nationality Act (“INA”) as “per se persecution on account of political opinion.”
I wanted to share this because we’re realizing that that it may be a more wide-spread practice than we initially thought, and often times, clients don’t even realized they have been sterilized when they come to us. We have been asking specific questions about this in our intakes, and often have been sending our clients to get a medical evaluation to determine whether they have been sterilized. Unfortunately, we have had a several clients discover in the course of our representation that they had been sterilized without their consent, and we believe that many other women may have experienced this without realizing.
While we have worked on several cases with similar facts, but interestingly, this is the first asylum case we have had were the IJ (McKee) granted specifically based on the forced sterilization claim (political opinion), and not on the ARCG DV claim.
Our team at Sanctuary is working to put together a training to help issue-spot, discuss common fact patterns, and how to prepare and brief these cases; stay tuned for more details.
CC’ing the team who worked on this case, including Deirdre, if folks have questions.
Thanks,
Pooja
Deirdre Stradone Attorney Sanctuary for Families NYKelly Becker-Smith Attorney Sanctuary for Families NYAmalia Chiapperino Sanctuary for Families NY
********************
Dan Kowalski reports from LexisNexis Immigration Community:
Christina Brown writes: “I wanted to share the attached decision in case it is helpful to others. IJ Burgie granted the asylum claim of an indigenous Guatemalan applicant finding past persecution based on severe economic deprivation (DHS failed to rebut). She also granted based on a pattern and practice of severe economic persecution of indigenous Guatemalans.”
Many congrats and much appreciation to all involved!
Even as the Biden Administration and GOP nativists push their “big myth” that most seeking asylum at the Southern Border are “mere economic migrants” not “true refugees,” these results from those fortunate enough to have expert lawyers, fair Immigration Judges, and reasonable time to prepare, document, and present continue to show the intellectual and moral bankruptcy of the racially-biased restrictionist claims. Indeed, to get to the “any reason to deny” nonsense, which also is often mis-employed by the BIA, one has to intentionally ignore or misconstrue both the real country conditions in the Northern Triangle and the inclusive “at least one central reason” mixed motive language of the INA.
These are NOT “one offs!”No, they are actually recurring situations! A properly functioning, fair, expert BIA, committed to a correct and generous interpretation of asylum laws, would have incorporated these and other recurring “grant” situations into a series of binding precedents. These, in turn, would allow lawyers, Asylum Officers, IJs, and ACCs to recognize and prioritize these cases for “fast track grants.”
That, in turn, would enable many asylum applicants to be timely admitted in legal asylum status, work authorized, and on the way to green cards and naturalization. Significantly, it would also avoid the largely self-created, self-aggravated, ever-growing EOIR backlogs that seem to “drive” the “haste makes waste,” sloppy, “any reason to deny” decision-making that still exists throughout our broken and biased asylum system.
The REAL problem here its that meritorious cases like or similar to these that require expert recognition, proper preparation and documentation, and officials committed to “protection not rejection,” are likely to be summarily rejected and wrongfully pushed back across the border by the “Biden/Miller Lite” procedures and toxic official attitudes toward asylum now being promoted by both the Administration and the GOP.
It’s disturbingly clear that the needed positive changes in the immigration legal system are NOT “coming from the top” in the Biden Administration. Consequently, in addition to recruiting, training, and mentoring ever more members of the NDPA (including non-attorney accredited representatives), to hold the system accountable, it is ESSENTIAL that we get more NDPA “practical experts” on the Immigration Bench to spread and force due process, fundamental fairness, and best interpretations/practices on a resistant system from the “retail level” — the “grass roots” if you will.
That requires that NDPA experts with the qualifications apply for Immigration Judge vacancies en masse! You can’t be selected if you don’t apply! And, without better Federal Judges at all levels not only will injustice continue to prevail for immigrants, but our entire democracy will be imperiled! Better judges for a better America!
Yes, as I have acknowledged in prior posts, EOIR can be a tough place to work. But, human lives and the future of our democracy depend on our changing the system, from “the bottom up” if that’s the only way. This system is too important, with too much at stake, to be left to the whims and false agendas of tone-deaf politicos and inept, “go along to get along” bureaucrats!
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
The 5th Circuit didn’t mince any words in its latest (inexplicably) unpublished, 24-page takedown of EOIR’s ridiculous “judicial” failure with lives at stake!
Based on all of the evidence as a whole, and in light of the applicable caselaw, Reyes-Hoyes has made a compelling case of persecution. Nevertheless, we find a remand is necessary because the BIA did not make a determination as to Reyes-Hoyes’s credibility. The BIA did not mention credibility in its decision or express any doubts about the truth of Reyes- Hoyes’s testimony. The IJ did express some doubts about Reyes-Hoyes’s credibility, although he did not explicitly find her uncredible and ultimately stated he was not denying relief “based on a lack of sufficiency of proof.” However, the BIA did not adopt the IJ’s decision and thus did not incorporate any of the doubts the IJ had. “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.” I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). If Reyes-Hoyes is credible, she has shown persecution, but the credibility determination must be made by the factfinder, not by this court on appeal. See 8 U.S.C. § 1158(b)(1)(B)(iii); Avelar-Olivia v. Barr, 954 F.3d 757, 767 (5th Cir. 2020). Accordingly, the decision of the BIA is vacated in part, and we remand to the BIA for a determination on credibility.
. . . .
In sum, we conclude that, if Reyes-Hoyes is credible, the record compels the conclusion that Reyes-Hoyes suffered harm rising to the level of past persecution, but we remand for the BIA to consider her credibility in the first instance. We also conclude that the record compels the conclusion that safe internal relocation to parts of Guatemala—Mesata and Raul—was not possible. Additionally, we hold that the BIA procedurally erred in the remainder of its analysis concerning whether internal location was reasonable and whether Reyes-Hoyes had shown state action by not meaningfully considering the relevant substantial evidence.
. . . .
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Here is my immediate reaction when Dan Kowalski at LexisNexis sent me the decison:
Wow! This is an EOIR/OIL error fest — replete with misrepresentations and mischaracterizations! Totally sloppy work! Why won’t they publish this? It’s a perfect example of how Garland has failed to get the job done!
And, here’s the reaction from my friend and Round Table Colleague “Sir Jeffrey Eagle Eyes” Chase:
24 pages; very detailed analysis of recurring asylum issues. Should certainly have been published.
BTW, please note footnote 9, an example of the ongoing problem with the government’s online regs continuing to list the enjoined “death to asylum” regs that the previous administration tried to push through. The Fifth Circuit continues to believe that the internal relocation reg was amended effective January 19, 2021. Have cases been decided based on this erroneous belief?
Lest you doubt the “complete FUBARness” of EOIR, check these out:
Worst of all the small and mid-sized agencies ranked;
While the “curve” for “subagencies” has gone up since 2007, EOIR’s score has cratered, plunging dramatically during the Trump years;
EOIR ranked at or near the bottom on key metrics, including, significantly, “leadership style” (some of the “credit” for this abysmal score should go to DOJ, which has failed to provide dynamic, due-process-oriented leadership over the last six years);
GAO study just cited EOIR for a number of management deficiencies including “blowing off” “our [GAO’s] 2017 recommendation to develop a strategic workforce plan to address current and future staffing needs, EOIR hasn’t done so—even though it had a significant and growing backlog of 1.8 million pending cases at the start of FY 2023, more than triple the number that it had in FY 2017.”
The NAIJ continues to raise technology and health and safety defects with EOIR “management;”
Notably, during this period of abject failure, EOIR has found time and resources to waste (and potential “goodwill” to squander) on unneeded nonsense like “IJ Dashboards,” “production quotas,” “expedited dockets,” more layers of bloated headquarters bureaucracy, and, perhaps the biggest boondoggle of all, a totally absurd and duplicative “Office of Policy” for an agency that has demonstrated a disturbing inability to carry out its “core function:” Providing Due Process for all through fair, timely, expert, correct adjudications!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up” — As Dems founder in their commitment to restore justice, could new Immigration Judges from the NDPA — unswervingly committed to due process, fundamental fairness, and best practices — get this poor little fella back on his feet and improve the culture and atmosphere at the “retail level” of EOIR, even in the face of indifference and incompetence from those in charge? Lives and futures — perhaps the future of our democracy — are at stake!
What we really need is a “lean, not mean, due process machine” @ EOIR. Why can’t the Dems deliver? That’s the age-old question among human rights experts!
Hernandez v. Garland, 2d Cir., 04-21-23, Walker, Pooler, Park, Circuit Judges
POOLER, Circuit Judge, dissenting:
2 Standards matter. A standard of review is the essential mechanism that
3 defines an appellate court’s proper role in reviewing the record presented. All
4 appellate courts must adhere to the proper standard of review. The Board of
5 Immigration Appeals (“BIA” or “the Board”) is no exception. Here, the BIA
6 applied a standard that substantially deviated from the clear error standard and
7 improperly made factual findings that contradicted those made by the
8 Immigration Judge (“IJ”). The BIA’s failure to adhere to the proper standard is
9 “the type of error that requires remand.” De La Rosa v. Holder, 598 F.3d 103, 108
10 (2d Cir. 2010). Accordingly, I respectfully dissent.
11 This Court lacks jurisdiction to review purely discretionary decisions by
12 the BIA, see 8 U.S.C. § 1252(a)(2)(B)(ii), but we retain jurisdiction over
13 “constitutional claims or questions of law,” Noble v. Keisler, 505 F.3d 73, 77 (2d
14 Cir. 2007) (quoting § 1252(a)(2)(D)). When reviewing decisions, “[t]he Board will
15 not engage in de novo review of findings of fact determined by an immigration
16 judge. Facts determined by the immigration judge, including findings as to the
17 credibility of testimony, shall be reviewed only to determine whether the
18 findings of the immigration judge are clearly erroneous.” 8 C.F.R. §
1
1 1003.1(d)(3)(i). “[W]hen the BIA engages in factfinding in contravention of 8
2 C.F.R. § 1003.1(d)(3)(iv), it commits an error of law, which [the Court has]
3 jurisdiction to correct.” Padmore v. Holder, 609 F.3d 62, 67 (2d Cir. 2010); see also
4 Rizal v. Gonzales, 442 F.3d 84, 89 (2d Cir. 2006) (explaining that the Court will
5 vacate BIA decisions “that result from flawed reasoning or the application of
6 improper legal standards”). Though the BIA “may review questions of law” and
7 “all other issues” on appeal de novo, see § 1003.1(d)(3)(ii), it is explicitly barred
8 from “engag[ing] in factfinding in the course of deciding cases” aside from
9 taking “administrative notice of facts that are not reasonably subject to dispute,”
10 § 1003.1(d)(3)(iv)(A).
11 Here, the BIA recited the precise legal standard at the beginning of its May
12 2019 decision. Special App’x at 7 (citing § 1003.1(d)(3)). But we do not simply
13 “rely on the Board’s invocation of the clear error standard; rather, when the issue
14 is raised, [the Court’s] task is to determine whether the BIA faithfully employed
15 the clear error standard or engaged in improper de novo review of the IJ’s factual
16 findings.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012); see also Chen v.
17 Bureau of Citizenship & Immigr. Servs., 470 F.3d 509, 514 (2d Cir. 2006) (noting that
18 despite “cit[ing] the proper legal standard at the outset of its decision, [the BIA]
2
1 failed to apply this deferential standard of review”). Despite its invocation of the
2 clear error standard, the BIA did not ultimately apply this standard of review to
3 Oscar Hernandez’s case. Merely reciting the standard does not transform the
4 BIA’s impermissible factfinding into a permissible exercise of discretion. Such lip
5 service should not suffice.
6 The majority opinion characterizes the BIA’s impermissible factfinding as a
7 simple “de novo reweighing of the equities based on the facts found by the IJ.”
8 Maj. Op. at 3. That is not the case. Without identifying any of the IJ’s findings as
9 clearly erroneous, the BIA implicitly rejected the IJ’s factual findings and
10 substituted the facts found by the IJ with its own factual findings. If the BIA
11 rejects the IJ’s findings, we expect it to “supply cogent reasons for its rulings,”
12 which the BIA failed to provide. See Lin v. Lynch, 813 F.3d 122, 129 (2d Cir. 2016).
13 The BIA completely disregarded the IJ’s credibility determination when it
14 concluded, contrary to the IJ’s findings, that it “d[id] not find [Hernandez’s]
15 explanation convincing” regarding the circumstances of his 2016 arrest. Special
16 App’x at 10. This divergence in characterization of the 2016 incident was central
17 to the BIA’s decision. In its attempt to parse out the definition of “convincing,”
18 the majority claims the BIA did not overturn the IJ’s factual findings, arguing the
3
1 BIA’s intended use of the word meant it was not “persuaded” by Hernandez’s
2 explanation, not that his testimony was not “truthful.” Maj. Op. at 11. This is an
3 unconvincing distinction. Next, the majority suggests the BIA doubted that
4 Hernandez warranted discretionary relief, not the truthfulness of his testimony.
5 Id. at 12. That clarification, however, does not do much to support the majority’s
6 argument. The BIA’s “de novo” reconsideration of whether Hernandez merited a
7 favorable exercise of discretion was premised on its factual determination that he
8 had “continued to engage in violent behavior” following his first arrest and
9 conviction in 2009. Special App’x at 10. The only evidence cited for this
10 determination was that Hernandez’s “most recent arrest in 2016 . . . included
11 abusive behavior toward his spouse”—a characterization directly at odds with
12 the IJ’s findings. Special App’x at 10.
. . . .
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You can read the full decision, including Judge Poolers’ full dissent, at the link.
As Judge Pooler points out, manipulation of the standards of review can be used either to improperly substitute judgement on fact-findings (BIA) or too avoid critical review of BIA’s actions (Circuit majority).
Thanks to Dan Kowalski over at LexisNexis for passing this along.
“Hipppity, hippity, hop! Deny, deny, deny! For any reason, in any season, or for no reason at all! Hippity, hippity, hop!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
Fwd: CA2 Vacates Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)
“Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we conclude that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. As such, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”
First, many congrats to NDPA super lawyer John Giammatteo! Obviously (to everyone but Garland), experts like John belong on the Immigration Bench, not just in front of it!
Something is horribly wrong with a system that designates fabrications and denials of due process as “precedents” to guide other judges! Something is also disturbingly wrong with an Attorney General, a former Article III Federal Appeals Judge no less, who has failed to bring in real expert progressive judges to run EOIR, redo defective precedents as proper legal guidance, eradicate the disgraceful anti-asylum bias, and enforce due process, fundamental fairness, and decisional excellence in America’s most important “retail level” court system!
There currently are opportunities for better judges to get into the system, start eradicating bad judging like this, and replacing it with expert, due process focused, efficient, “real judging” by better judges. Get those applications in!
The “message” of Matter of Y-I-M- is clear: make it up, ignore it, cut it off, hustle off to lunch — whatever it takes to “get to no” — we’ll have your back!
“The decision is scorching,” says Dan Kowalski. And, well it should be! This is a disgusting,institutionalized travesty of justice 🤮, in life or death cases ☠️, going on right under AG Merrick Garland’s nose! It’s undermining American democracy! And, it’s totally preventable!
Remarkably, the BIA selected this pathetically bad adjudication — one that raises questions as to whether anyone at EOIR even read the record — combined with a horrendous denial of due process, and an IJ who obviously felt “empowered” to elevate time over fairness and substance — as a precedent! That means it was supposed to be a “model” for IJs — essentially a message that you should go ahead and deny asylum for any reason — even if largely fabricated — and the BIA will give you a “pass.” This actually raises some serious ethical problems with the whole EOIR mess and Garland’s indolent stewardship over this critical part of our justice system!
The IJ actually said this: “So, don’t get frustrated if I shutdown your arguments. It’s just that —we’re now at 12:00, and we’re nowhere . . . near done in the case.”
Amazingly, this IJ “touted” that cutting off relevant testimony, actually “helped” the respondent by giving him more possible reasons to appeal! Does this sound like a system that encourages “efficiency” and “excellence?”
No wonder they have backlogs coming out the wazoo! Yet, rather than slamming this IJ and using it as a precedent of how NOT to handle an asylum case, the BIA basically “greenlighted” an egregiously defective performance and made it a “model” for other judges! Outrageous!
It’s an example of why this system needs progressive, due process oriented leadership and radical reforms! Now!
A competent IJ could have granted this corroborated case and still have made their “noon lunch date!” Recognizing and institutionalizing consistent grants of relief is what “moves” the Immigration Court system without violating anyone’s rights and without tying up the Article III Courts!
Instead, because of the unchecked “culture of denial” and the incompetence allowed to flourish at EOIR, after four years this case is still bouncing around the system. That’s a key reason why EOIR is dysfunctional and their backlogs are out of control!
Correct, positive precedents establishing and enforcing best practices are essential to due process and fundamental fairness — once, but no longer, EOIR’s “vision.”
One of the “uninitiated” might logically expect that having exposed and eliminated this disingenuous “any reason to deny asylum” precedent, advocates for due process and fundamental fairness have “won this battle.” Not so in the “parallel universe” of Garland’s EOIR!
As pointed out by Hon. “Sir Jeffrey” Chase of the Round Table:
If they follow past practice, the BIA will continue to apply this decision as a model for IJs in every circuit but the 2d.
Come on, man!
The author of the Second Circuit decision, U.S. District Judge Gary Brown has an interesting background, according to “Sir Jeffrey:”
Also, the judge who wrote the decision for the panel, Gary Brown, is a Trump appointee to the Eastern District of NY sitting by designation on this panel. When John’s argument was being mooted, we actually discovered that Judge Brown is also a renowned magician, who invented an effect called the Viking Spirit Trumpet.
Actually, Judge Brown was nominated for the bench by both President Obama and President Trump! Wonder if he has any magic spells up his sleeve that would make EOIR disappear and reappear as a real, due-process-focused court!
Magic Hat & Wand Could U.S. District Judge Gary Brown, also a famous magician, conjure up a spell that would make due process “reappear” at EOIR? PHOTO: Public Realm
Amazing how busy Article III Judges can take the time to read and understand records in asylum cases, but the BIA can’t! This system is broken!
Meaningful reform starts with a new, better qualified, expert BIA focused solely on due process, fundamental fairness, and decisional excellence. It’s very straightforward! Why doesn’t Garland “get it?” How many more will be wrongfully denied while our disconnected AG floats around in his surreal, yet deadly, “intellectual never never land?”
Lost in an intellectual fog, and far removed from the “retail level of justice,” AG Merrick Garland can’t be bothered with the injustices heaped on asylum seekers and their dedicated representatives in his dysfunctional, deny for any reason, Immigration Courts! PHOTO: Wikipedia Commons
Every time I read this decision I get more and more outraged about the continuing horrors of EOIR! Attorneys could face sanctions for making material misrepresentations in briefs. Yet, nothing happens to EOIR Judges who “make it up as they go along” to deny asylum!
I was told by some withknowledge of the EOIR disaster that, at least until recently, those at higher levels of the Administration who (curiously) are “pulling the strings” at EOIR were unaware that Immigration Judges are not automatically “packaged” with Judicial Law Clerks! Duh! Anybody who has actually worked at the “line level” of EOIR as well as a whole bunch of widely available reports and studies could have told them that!
So, according to my sources, in at least some locations “flooded” with new IJs, the already poor IJ to JLC ratio has gotten much, much worse!
Just another piece of “low hanging fruit” that Garland has failed to “harvest.” I’ve also been told that problems with grade levels discourage individuals from making a career out of working in the law clerk program.
All of this makes it critical that new Immigration Judges be experts in immigration law with “hands on” experience. So, NDPA practical scholars, get those applications for judgeships in NOW! Indolence about due process at the top creates opportunities for spreading and institutionalizing due process at the “retail level!” But, that requires great judges with the right experience. So, don’t wait! Apply today!🗽⚖️👨🏾⚖️👨🏼⚖️👩🏾⚖️🧑🏻⚖️
On Friday we had a challenging issue with our Asylum case in immigration court.
The case was heavily documented and our NYC team did such an amazing job with the package that DHS was already willing to stipulate to a Withholding of Removal (which actually requires proving a higher probability of persecution than asylum, but is a much more restrictive form of relief). Client is a bona fide Falun Gong practitioner and has publicly opposed the Chinese government’s vicious and ruthless persecution of FLG followers in China, so it was a victory on its merits just from looking at the filing and before taking testimony.
However, the reason the government would not stipulate to Asylum is because there was a one year issue in the case. Normally, clients are required to apply for asylum within one year of their last entry into the United States, unless they can prove they qualify for one of the exceptions in the statute.
This was an unfortunate case where USCIS lost the filing and by the time client found out about this, she was so mentally distraught with the persecution of her family back home that she simply could not muster the necessary focus to work on the application. Her symptoms persisted for two years until after her family was released and she finally was able to file.
We showed several receipts, USPS labels, brought a witness who was aware of the challenges client was facing at the time, and took detailed testimony where client explained the mental anguish she was suffering at the time and how this affected her ability to focus.
Denver IJ Grants CAT, Withholding Relief (El Salvador, PSG)
Prof. Elizabeth Jordan writes: “DU clinic students Anni Winan and Sharon Malhotra got a win in Judge Caley’s courtroom a few weeks ago on behalf of a Salvadoran who fears return to El Salvador under the State of Emergency declared by President Bukele. Notably, Caley found “Salvadoran men with tattoos erroneously perceived to be gang members” cognizable as a PSG, departing from Matter of EAG, and found that the conditions in Salvadoran prisons under the SOE amount to torture. [ICE did NOT appeal.] We would highly recommend Dr. McNamara as an expert as well.”
[Hats way off to Prof. Jordan (Director, Immigration Law & Policy Clinic, University of Denver Sturm College of Law) and her students!]
***********************
Congrats to everyone involved! Fairness, scholarship, timeliness, respect, and teamwork succeeds!
Common threads:
Great representation of the respondent;
Great preparation;
A well-prepared, thoughtful ICE Assistant Chief Counsel committed to working for a fair, correct, result;
An Immigration Judge who inspired the parties to excellence, paid attention to the law and the issues, listened carefully, and allowed both counsel to do their jobs;
An Immigration Judge who encouraged the parties to work cooperatively, narrow the issues, and focus on the key dispositive issue;
Great teamwork and professionalism produced a great result, with efficiency, and without gimmicks or corner cutting.
What’s needed:
Precedents establishing, enforcing, and reinforcing due process and best practices;
Working with the private bar and NGOs to establish universal representation;
Prioritizing represented grantable cases on the docket;
Dynamic judicial leadership focused on institutionalizing due process, fundamental fairness, and correct, high-quality decisions;
Highest quality judicial training and continuing judicial education. (It exists out here in the “real world” with inspiring, effective, creative, problem-solving“practical scholar/teachers.” But, according to EOIR sources, currently available only through the NAIJ!)
Due process, fundamental fairness, best practices, and maximum efficiency, consistent with due process, can be achieved at EOIR! It just takes expertise, will, a plan, and the right personnel to make it happen! Leadership makes a difference!
A.G. Merrick Garland’s continuing operation of the “EOIR Clown Show,” at taxpayer expense, is costly in more ways than one! “Any reason to deny” proves too much even for the hyper-conservative 5th Circuit! PHOTO: Public Domain
Dan Kowalski reports for LexisNexis Immigration Community:
“On May 18, 2022, this court granted Giscard Nkenglefac’s petition for review of the Board of Immigration Appeals’s (BIA) dismissal of petitioner’s appeal from the immigration judge’s (IJ) denial of his application for relief from removal. See Nkenglefac v. Garland, 34 F.4th 422, 430 (2022). Because the IJ’s adverse credibility determination was not supported by evidence in the record, we determined that the BIA erred in affirming it and remanded the case to the BIA. The petitioner filed a timely application for attorneys’ fees under the Equal Access to Justice Act (EAJA). We find that petitioner is entitled to attorneys’ fees under the EAJA and award $56,169.79.”
Homero Lopez, Jr. Director & Co-Founder Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA websiteEmma Morley Paralegal Immigration Services & Legal Advocacy New Orleans, LA PHOTO: ISLA website
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Wouldn’t it be cheaper and better for everyone if Garland finally “cleaned house” at EOIR, appointed and retained only well-qualified expert judges at both the trial and appellate level, replaced incompetent administrators, and ended the toxic — and costly — “any reason to deny culture” at EOIR?
When the DOJ is being “pasted” on wrongful decisions denying asylum by the 5th Circuit, everyone but Garland knows that “the EOIR Clown Show has got to go!”🤡
Make no mistake about it! Garland’s failure to reform EOIR into a due-process-focused expert tribunal willing to stand up for the legal rights of asylum seekers and to require “best practices” with respect to access to representation at the border and elsewhere is a major contributing factor to the Biden Administration’s deadly humanitarian disaster and abrogation of the rule of law for asylum seekers at the Southern Border. It didn’t have to be this way!
Why is this “preventable disaster” happening under a Dem Administration that ran on an (apparently false) pledge to restore due process and the rule of law for asylum seekers and other migrants? How can we stop it and prevent it from happening again in the future?
I daresay that many humanitarian experts warned the Biden Administration that without fundamental positive changes, better, courageous, expert, inspirational leadership, and long-overdue administrative reforms at DOJ, DHS, and the White House, disasters would unfold across the board. That’s exactly what has happened! It’s also infecting the entire legal system and inhibiting social justice in America.
But , unless and until social justice advocates come up with a better political approach to the disturbing lack of integrity and values in both political parties when it comes to immigration, they will continue to be vilified and attacked by the GOP and “consistently kicked to the side of the road” by Dems!
I wish I knew the answer! I don’t! But, I do know that human rights and social justice disasters will continue to unfold unless and until social justice advocates figure out how to get some “political clout” behind their intellectual power and store of (largely ignored) great ideas!
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
From Dan Kowalski @ LexisNexis:
Good morning Dan,
I am writing to let you know that the U.S. Department of Justice, Executive Office for Immigration Review (EOIR), is looking to hire additional immigration judges. I wanted to provide the following information in the event it might be useful to Bender’s Immigration Bulletin subscribers and others who may wish to learn about the immigration judge career path. Could you please provide this information to anyone who you think may be interested?
Sign up to attend a Recruitment Outreach Session – on March 23 and on March 30, sign up to attend a live webinar, where we’ll be explaining how to become an immigration judge. The hour-long sessions are moderated by assistant chief immigration judges, with time for Q&A at the end.
2.The next immigration judge job opportunity announcement is scheduled to open in early April. Individuals may receive a notification when the announcement is posted on USAJOBS, by signing up for EOIR’s Adjudicators Announcement listserv: U.S. Department of Justice (govdelivery.com).
3.For more information on the immigration judge career path, benefits, qualifications, etc., please visit our EOIR Careers webpage.
Thank you so much for your attention and support as we work to hire additional immigration judges.
Kathryn
Kathryn Mattingly
———————————————–
Assistant Press Secretary
Communications and Legislative Affairs Division
Executive Office for Immigration Review
U.S. Department of Justice
**********************
It’s very encouraging to see EOIR now doing some “affirmative recruiting” to widen and improve the selection pool for these important “life or death” positions. It’s YOUR chance to promote and deliver due process at the most important level of our justice system — the “retail level!” That’s where “the rubber meets the road” (or continues to have “flat tires” as is now the case throughout the Federal Judiciary at all levels.)
I seldom attend any professional gathering these days without being bombarded with “horror stories” and angry complaints about the poor quality of judging, lack of understanding, and absence of practical problem solving skills at all levels of EOIR. NDPAers, this is OUR chance to do more than “just complain” (particularly to me, since I’m not in charge of anything) by improving and diversifying the system “from the ground up,” institutionalizing better interpretations, great applications of law, and best practices in the process!
I also have a vision that at some point in history, a more “with it” Administration that actually understands the cosmic importance of immigration and human rights, takes Constitutional Due Process seriously, has some guts, and views all human lives as mattering, will use the Immigration Courts as a “natural pool” for better Article III judicial appointments.
Additionally, when Article I eventually happens, there inevitably will be some type of “grandfathering” of existing IJs. WHO would YOU like to see “grandfathered” into a new independent system? All of the current incumbents, or a more diverse group including many practical scholars and fearless due process mavens?
As my good friend and neighbor, Professor Alberto Benitez of the GW Law Immigration Clinic always says, “The world is yours!”
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world! The Twilight Zone Billy Mumy 1961.jpg :PHOTO: Public Realm
Dan Kowalski reports for LexisNexis Immigration Community:
CA9 on Standard of Review: Umana-Escobar v. Garland
“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”
The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved!
This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.
When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible,the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable!
In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials!
GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️
“Gerardo Caballero-Vega, a Mexican citizen, entered the United States in 1993 without admission or parole by an immigration officer when he was eight years old. He was removed to Mexico in 2019. Shortly after his removal, Caballero-Vega returned to the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture. Later that year, the Immigration Judge (“IJ”) granted his application for asylum, which the Department of Homeland Security (“DHS”) appealed to the Board of Immigration Appeals (“the BIA”). In 2020, the BIA vacated the IJ’s decision for clear error and ordered Caballero-Vega’s removal to Mexico. The following year, Caballero-Vega filed a petition for review in this court. We reverse the BIA’s vacation of the IJ’s decision and remand the case for further review. … Caballero-Vega became a criminal informant for the San Mateo County District Attorney in 2012. He reported to law enforcement on the drug, firearm, and human trafficking conducted by Nuestra Familia, a California prison gang, as well as the Norteño Gang, Nuestra Familia’s “foot soldiers” in the streets. R. Vol. I at 143. Following his informant work, he testified against Nuestra Familia members in criminal court. Caballero-Vega was placed in a witness protection program during and after his testimony. … On November 13, 2019, the IJ granted Caballero-Vega’s application for asylum, finding that he had established a well-founded fear of future persecution based on his membership in the group of “informants who have testified in court against gangs.” … DHS appealed the decision to the BIA. On December 15, 2020, the BIA sustained DHS’s appeal, vacated the IJ’s grant of Caballero-Vega’s asylum, and ordered Caballero-Vega’s removal to Mexico. Specifically, the BIA found that there was “clear error in the [IJ]’s finding that there’s a reasonable possibility that [Caballero-Vega’s] 2012 status as an informant and his 2013 or 2014 United States testimony against United States gang members will be a central reason for possible future harm to [him] upon removal to Mexico.” … We find insufficient the BIA’s explanation for its finding that the IJ’s decision is clearly erroneous. The fact that Caballero-Vega was not persecuted in Mexico is of little-to-no probative value here because he escaped before he could be identified by cartel members. Likewise, the fact that he was not threatened or harmed in the United States following his time as an informant is unhelpful because he was in witness protection for that entire period. Finally, the expert testimony cited by the IJ demonstrates that Mexican cartel members and United States gang members cooperate extensively, so the fact that Caballero-Vega testified against individuals based in the United States, not Mexico, is not dispositive. Thus, none of the reasons the BIA offers for vacating the IJ’s decision justifies the BIA’s finding of clear error. We remand Caballero-Vega’s case to the BIA to accept the IJ’s decision or to provide further justification for its finding that the IJ’s decision is clearly erroneous.”
Asylum was correctly granted in November 2019. 3.5 years later, the case is still kicking around because the wrong “judges” are on the BIA.
Ever wonder why EOIR has unmanageable backlogs? Even when the system works as it should and protection is granted at the initial level, the BIA and their “partners” at DHS Enforcement combine to screw it up! We need Article I!
Dems keep babbling about “Federal Court reform.” But, they can’t even achieve long-overdue progressive reforms to a court system they totally “own!”
Why won’t the Biden Administration govern in accordance with the humane, practical, legal values they ran upon, when it comes to human rights, immigration, and racial justice? Don’t kid yourself! Rather than being “expendable” or “negotiable,” THESE are the issues on which our democracy will eventually stand or fall! That’s something that the younger generation must focus on!
Sessions and Miller wasted almost no time in co-opting and weaponizing EOIR against asylum seekers, migrants, people of color, and even smearing and attacking those defending them. Evil though they were, they had passion and a plan for dehumanization, destruction, and undermining democracy!
Social justice in America needs passionate, brave, principled advocates and defenders! There are plenty of them “out here!” Indeed, My Round Table colleague Judge Ilyce Shugall and I are surrounded by them here at the VIISTA celebration and training at Villanova!
Villanova University President Rev. Peter M. Donohue, Villanova Law Dean Mark Alexander, Professor Michele Pistone, creator and founder of VIISTA Villanova and the CARES Clinic, the VIISTA and CARES alums who have come here from literally every corner of America to celebrate, teach and learn — THEY are passionate about social justice and are actively expanding and defending it. THEY are doing something about the number one immigration problem today — guaranteeing due process through effective representation — by training and turning out “accredited representatives,” highly skilled professional advocates who don’t necessarily have to be lawyers!
Professor Michele Pistone Villanova Law — Creator of VIISTA Villanova Program for training accredited representatives and building nationwide social justice networks. She is passionate about social justice. Why aren’t Biden Administration politicos?
As Father Donohue said at yesterday’s celebration, “‘Woke’ means social justice!” Amazing people have come here from the Southern Border where they work with asylum applicants on both sides of the border. Every day, they see the human trauma, racism, pain, and suffering caused by the Administration’s failure to innovate, lead, and stand up for human rights. These are the preventable human dramas and traumas that smug, ill-informed Administration “policy makers” run away from — they don’t have the courage to face and learn from those they abuse!
Values – human rights and legal rights — CAN’T EVER be “trumped” by “reelection concerns.” I might also add that the “Miller Lite” strategy followed by the Administration hasn’t found supporters or made them friends anywhere on the political spectrum! If you are going to make folks mad, why not at least be doing the right thing? Are competence, innovation, humanity, keeping campaign promises, and following the law REALLY political “losers” as Biden apparently believes? I doubt it!
The Biden Administration and many congressional Dems apparently lack passion and guts! Without the basic governing skills and integrity to undo the horrible human and systemic damage inflicted by Trump and institutionalize due process and fundamental fairness, the Dems are wandering in the social justice wilderness! No passion, no values, no expertise! Doesn’t say much for a party that promised to be a “socially just” alternative to anti-American Trumpist White Nationalism!
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
