"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
In times like these, we should not depend solely on the courts. There are many of us here in the U.S. who believe that the world’s refugee framework — developed in response to the profound moral failure of turning back the St. Louis — is worth fighting for. We need to take a vocal stand. The clear message must be that those fleeing persecution should never be returned to persecution.
It’s been a busy time for Karen. She writes in Linkedin:
I was very honored to be chosen by the 2025 graduates of UC Law, San Francisco, to be their faculty speaker. Our students truly inspire me, and make me hopeful for the future.
Karen Musalo speaking at UC Law graduation, May 2025. PHOTO: Linkedin
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Thanks for speaking out so forcefully and articulately, my friend! Sticking to and standing up for values and the rule of law is important, particularly in an age of scofflaws, myth spreaders, and dehumanizers! One need look only as far as the St. Louis incident that you cite to see how even with the benefit of historical knowledge and fact, some among us stubbornly stick to lies, myths, and xenophobia with tragic and deadly results.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
[T]he Board in Matter of A-A-R- impermissibly reinterpreted the evidence in a very selective way in order to reach a different conclusion than that reached by the trier of fact. As the Fourth Circuit recently held in reversing the Board, “In conducting clear error review, the BIA may not reweigh evidence or ‘substitute[ ] its own judgment for that of the IJ.’”
For all of the above reasons, a prediction that A-A-R- will not withstand circuit court scrutiny would not be clearly erroneous.
Thanks, Jeffrey, my friend and colleague, for your scholarly exposition of the BIA’s result-oriented sophistry. It’s no coincidence that in erroneously reversing a solid CAT grant to El Salvador the BIA chose, as it seldom does in other than a negative context, to reject a very viable form of mandatory protection, to a country currently in the news, which is available without regard to criminal record, alleged gang membership, and /or discretionary factors.
By choosing to designate it as a rare precedent, the “captive” BIA appears to be fulfilling the political demands of the Trump Administration to be able to argue, contrary to the Supremes, that no fair hearings are necessary in similar cases of illegal removals because an ultimate negative result is foreordained by precedent (even though that is clearly wrong, even under A-A-R-).
Administration lawyers have even gone to the extraordinary extent of trying to— so far unsuccessfully — submit and argue that bogus “predictive denials” — basically the DHS’s position without any opportunity to challenge — can be relied upon by a reviewing Article III court to deny the return of individuals wrongfully deported. What a complete crock and insult to the rule of law, as well as to the judges to which these disingenuous arguments are addressed! 🤬🤮
While “third country removals” are possible for those granted withholding of removal or deferral of removal under the CAT, proper legal procedure and due process require that 1) the DHS seek to reopen the case for designation of a new country of removal (unless such alternative country was previously designated and named in the Immigraton Judge’s order), and 2) the respondent be given a reasonable opportunity to raise any protection claims relating to that country.
“On Petition for Review of a Final Order of the Board of Immigration Appeals. (Agency No. A209-343-065). Immigration Judge: David Cheng. … As for Quinteros’s Convention Against Torture claim, our precedent requires the agency to follow certain steps. Yet neither the judge nor the Board did so. … Here, neither the immigration judge nor the Board followed our instructions. … Those procedural failures infected the agency’s decisions. Neither the immigration judge nor the Board considered a separate death threat and beatings that Quinteros got from gang members. In gauging the likelihood and severity of future harm, the agency should have considered the gang’s death threat too. See Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 112 n.5 (3d Cir. 2020). So we will grant the petition as to Quinteros’s Convention Against Torture claim, vacate the Board’s order, and remand.”
Gee whiz, applying and following Circuit precedent seems like “Immigration Judging 101!” Yet two levels of supposedly “expert” EOIR judges blew it — badly! Fortunately, this respondent was represented by experienced Federal litigator Thomas E. Moseley, who is never afraid to go to the Article IIIs to correct EOIR’s errors.
But, most respondents aren’t so lucky. So, it’s likely that for every defective adjudication “outed” by a Circuit, multiple, potentially deadly or at least life changing, mistakes go uncorrected. Worse yet, some are even “institutionalized!” Seems like a “heck of a way to run the railway,” particularly for a former Article III Judge who was once nominated for the Supremes!
Unforced error after unforced error in life or death cases from Garland’s substandard “courts!” Would brain surgeons 🤯☠️ who kept on screwing up critical operations still be “on staff.” I doubt it! So, why aren’t “DOJ attorneys” carrying out quasi-judicial functions subject to some quality controls? In theory, that’s supposed to be the BIA’s function. But, the BIA has firmly established itself as “part of the problem, NOT the solution!”
Congrats to my long-time friend and former “Legacy INS” colleague Tom Moseley. As a former INS Special Assistant U.S. Attorney in the SDNY (in the time of “Crazy Rudy”) during the “Inman/Schmidt Era” at INS General Counsel, Tom has also seen both sides of the system!
BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees! Albrecht Dürer, Public domain, via Wikimedia Commons
Dan Kowalski reports for LexisNexis Immigration Community:
“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”
Eric Suarez ESQUIRE Partner Sanabria & Associates PHOTO: Firm website
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EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!
In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!
The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.
Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations.
The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.
Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.
Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, andwidely-acknowledged qualifications for these critically important judgeships.
Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’
I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:
We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!
Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:
Maybe the Board should read my article on the proper test for nexus:
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!⚖️
Would you want this guy as your Immigration Judge or BIA “panel?” If not, tell Garland to “pull the plug” on his deadly and incompetent BIA! Public Domain
Sorto-Guzmán v. Garland, 4th Cir., 08-93-22, published
PANEL:KING and WYNN, Circuit Judges, and FLOYD, Senior Circuit Judge.
OPINION: Judge FLOYD
KEY QUOTE:
In sum, we hold that the IJ’s decision, which the BIA adopted, blatantly ignored our long line of cases establishing that the threat of death alone establishes past persecution. This was legal error, and therefore, an abuse of discretion. See Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014). We hold that Sorto-Guzman has established she was subjected to past persecution in El Salvador.2 She is thereby entitled to the presumption of a well-founded fear of future persecution. Li, 405 F.3d at 176; 8 C.F.R. § 208.13(b)(1). The IJ and the BIA erred in not affording Sorto-Guzman this presumption, which would
2 Sorto-Guzman argues, in the alternative, that the IJ and the BIA erred in finding that she failed to establish a well-founded fear of future persecution. We will not answer that question today. Because we hold that she properly established past persecution, the proper remedy is to remand the case to the BIA to consider the question of whether DHS can rebut the presumption that Sorto-Guzman has a well-founded fear of future persecution.
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have then shifted the burden to DHS to rebut the presumption. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004); 8 C.F.R. § 1208.13(b)(1)(i).
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Sorto-Guzman is a life-long Catholic who regularly attended Catholic services in El Salvador. In December 2015, about five members of the Mara 18 gang accosted Sorto- Guzman in the street as she was leaving church. At the time, she was wearing a crucifix medallion around her neck. The gang members tore the chain from her neck, hit and kicked her, and threatened to kill her if she ever wore it or attended church again. Sorto-Guzman stopped attending church after the attack, fearing the gang and their threats.
A few weeks later in January 2016, a group of Mara 18 gang members—including some of the gang members from the December 2015 assault—stopped Sorto-Guzman, along with her sister and Rivas-Sorto, as she was coming home from a shopping trip. One of the men attempted to sexually assault Sorto-Guzman and had started to forcefully kiss her. He only stopped when her screams caught the attention of a neighbor. The gang members threatened to kill Sorto-Guzman and Rivas-Sorto if Sorto-Guzman did not join the gang and start living with them.
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On February 13, 2016, some of the gang members from the prior incidents tracked where Sorto-Guzman lived and broke into her house carrying guns. The gang members viciously beat Sorto-Guzman, threatened her life, and robbed her. Sorto-Guzman’s neighbors called the police, but they did not come until several hours after the assault. Sorto-Guzman reported the assault and robbery to the officers who arrived at the scene. She also went to the local police station the next day to report the attack. The police made one attempt to investigate, but Petitioners were not home when the police arrived, and the officers never followed up. The day after, a gang member called Sorto-Guzman, warning her she would regret making the report to the police and that they would soon kill her, her son, and her sister.
Absurdly, an Immigration Judge found that this gross abuse and death threats by a gang with the ability and willingness to carry them out did not amount to “persecution.” Worse yet, on appeal, rather than reversing and directing the judge below to follow the law, the BIA agreed — invoking the outlandish “theory” that the death threats, on top of the savage beating, weren’t so bad because they had never come to “fruition.” In other words, the applicant hadn’t hung around to be killed. Then, to top it off, attorneys from the DOJ’s Office of Immigration Litigation (“OIL”) unethically defended this deadly nonsense before the Fourth Circuit! This is “justice” in Garland’s disgraceful, deadly, and dysfunctional “court” system!
Garland’s BIA Judges applying the “fruition” test. If she lives, it’s not persecution! Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
NOT, a “mere mistake.”
EOIR’s performance is this case, particularly the BIA’s absurdist conclusion that, essentially, death threats must result in death to constitute past persecution, is a contemptuous disregard for binding circuit precedent, a demonstration of gross anti-asylum bias, misogyny, and a clear example of judicial incompetence.
Would a heart transplant surgeon who “forgot” to install a new heart or neglected to sew up the patient’s chest be allowed to continue operating? Of course not! So, why is the BIA still allowed to botch life or death cases — the equivalent of open heart surgery?
If Garland allows his “delegees” to perform in this dangerous and unprofessional manner, in his name, what is he doing as Attorney General? This is a farce, not a “court system?” Those responsible need to be held accountable! And, OIL’s unethical defense of this deadly nonsense is indefensible!
“What are legal ethics? Not my friends or relatives whose lives as being destroyed by these ‘Kangaroo Courts.’ Just ‘the others’ and their dirty immigration lawyers! So, who cares? Why worry about professionalism, ethics, and due process in Immigration Court?” PHOTO: Wikipedia Commons
We’ve heard lots lately from Garland about “accountability.” Why doesn’t it apply to his own, wholly owned, totally dysfunctional, legally deficient, contemptuous, unprofessional “court system” that builds astounding, self-created backlogs while causing pain, suffering, and sometimes sending innocents to death?☠️
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
Additionally, in Kansas this week, women have shown the power of their just demand to be treated as humans, with rights, rather than dehumanized pawns just there to re-populate the world for the men in charge. So, why not unleash the same passion and rightful fury on Garland and his ongoing, illegal, misogynistic treatment of women (primarily women of color) at EOIR!
“She struggled madly in the torturing Ray” — AG Garland has failed miserably to engage with the plight of women, mostly those of color, being denied fundamental rights and abused daily by his lawless, anti-immigrant, anti-asylum, misogynistic “holdover” EOIR! Why are women putting up with his bad attitude and dilatory approach to justice? What happened to Lisa Monaco, Vanita Gupta, and Kristen Clarke? Are they “locked in a dark closet” somewhere in Garland’s DOJ? Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Here’s another remand you might like to read. This time it was Nexus and PSG with IJ Monique Harris (previously in Houston). According to TRAC she has a 96.5 asylum denial rate. The prior remand I shared was IJ Khan who is at 97% denial rate. Clearly these IJs are getting a lot of “matter of life and death” decisions wrong. As you say, haste makes waste. This case (like the previous one) should have been easy grants with all of the supporting documents that were included. I appeared at the individual hearing and my colleague Bryan Russell Terhune (from the same office) worked on the BIA Brief.
P.S. you can see this news article: https://sv.usembassy.gov/court-inaugurated-memory-pnc-agent/ , from our own U.S. Embassy in El Salvador where they inaugurated an athletic court in the Usulutan Police Delegation, named after the PNC officer Nelson Panameño, who was killed. Panameño was one of the instructors from the Gang Resistance Education and Training Program (GREAT) which my client closely worked with for many years helping him and the PNC gain trust with the community and local youth. This was part of the record, plus a lot more evidence showing this specific connection and the specific and imminent warnings that Panameno gave to my client before his own murder. This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
This was just one of the many great things this client did in El Salvador to try and make his country a better place. We are lucky to have him and his family in this country now.
That this respondent is here to contribute to our country is due to Roberto and his colleagues in the Law Office of Juan Reyes, Houston, and to this particular panel of BIA Appellate Judges. But it is “no thanks” to the IJ who got this case egregiously wrong below!
Nor, is it thanks to an Attorney General who has allowed injustice, bad judgment, and poor quality decision-making to flourish at the “retail level” of his wholly-owned “court” system. What about the many folks who don’t have Roberto or someone like him for a lawyer or who get members of the “BIA asylum deniers club” appointed under Trump to “pack the BIA for an anti-asylum agenda” instead of this panel of conscientious appellate judges?
I note that Judge Elise Manuel and Judge Denise Brown are currently denominated “Temporary” Appellate Judges. At least in this case, along with Judge Ellen Liebowitz, they “got it” at a level at odds with the work of too many of their so-called “permanent” colleagues. Why has Garland allowed this obviously problematic situation to continue to fester with human lives at stake?
Judge Ellen Liebowitz’s compact, cogent, powerful opinion is a terrific “mini-primer” on how PSG and “one central reason” nexus cases properly should be decided! As Judge Liebowitz demonstrates, you don’t have to write a lot to say a lot. You just have to know what you’re doing!
The gross, fundamental errors in the application of basic statutory terms by the IJ below in this case are, unfortunately, repeated on a regular basis by many of her colleagues across America who are improperly “programmed to deny” clearly grantable asylum cases.
It belies the bogus claim that EOIR is an “expert subject matter tribunal!” That expertise is, at least in part, what the questionable doctrines of “Chevron deference” and “Brand X abdication” by the Supremes rest upon. Shouldn’t it make a difference that in EOIR’s case, it’s a lie?
Why is Garland allowing this to happen when it could be remedied? Make this case a precedent and start removing, retraining, or reassigning so-called “judges” who don’t follow it and who continue to disregard the law and the rights of asylum seekers!
Why isn’t this case a precedent? Why is an IJ who is so clearly unqualified to decide asylum cases still on the Immigration Bench under Garland? Why aren’t cases like this being used to end the “asylum free zone” improperly established by some Houston IJs?
These are the “tough questions” that Garland should have addressed. Why hasn’t he? Why is “refugee roulette” still plaguing EOIR and American justice — 15 years after the problem was first “outed” by my Georgetown Law colleagues Professors Schrag, Schoenholtz, and Ramji-Nogales? How is this “good government,” or even “minimally competent government?”
When compelling, well-documented cases like this are turned down at the trial level, something clearly is rotten in the system! Make no mistake about it, lack of expertise, bad judicial attitudes, widespread anti-asylum bias, counterproductive “haste makes waste gimmicks,” and way, way too many denials are significant “drivers” of the backlog that continues to mushroom under Garland.
The arbitrary and often grotesquely unfair, unprofessional, and results-driven state of “justice” in Garland’s dysfunctional Immigration Courts was recently highlighted by Brooklyn Law Associate Dean Stacey Caplow in her lament about the Supremes’ abdication of responsibility in Patel v Garland.
Stacy Caplow Associate Dean of Experiential Education & Professor of Law Brooklyn Law PHOTO: Brooklyn Law website
As Dean Caplow cogently points out:
Patel shuts the door firmly and unequivocally, preventing independent review of fact-finding by Immigration Judges, however irrational and indefensible once the Board of Immigration Appeals has affirmed. This makes the need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament even more urgent. Perhaps this case will provide new impetus for reform such as Real Courts, Rule of Law Act of 2022 voted by the House Judiciary Committee in May just days before the Supreme Court’s decision.
While an independent, subject matter expert Article I Immigration Court is the obvious answer, unfortunately, it’s not immediately on the horizon. Meanwhile, the innocent and vulnerable continue to suffer daily injustices, sometimes gratuitous humiliation or dehumanization, in Garland’s broken system. It DOESN’T have to be this way!
As Dean Caplow says, we “need to populate the Immigration Court bench with independent, highly qualified, experienced, non-political unbiased individuals with appropriate temperament.” It’s not “rocket science” 🚀— just intellectual excellence, courage, and a fair-minded approach to justice!
There are literally hundreds of extraordinarily well-qualified individuals out there in the private sector who could outperform the IJ in this case in every critical aspect of the job! Why hasn’t Garland actively recruited them for his courts? Why isn’t his system functioning correctly “on the retail level?”
Garland has the authority to take the bold action necessary to redirect, refocus, and re-populate his current parody of a court system to laser-focus on due process, fundamental fairness, judicial expertise in immigration and human rights, and efficiency (without sacrificing due process or decisional excellence).All of us who care about the future of American justice should be asking why he isn’t doing his job!
“In a decision dated May 21, 2020, an Immigration Judge found the respondent to be removable as charged, denied her application for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(h) (2018), and ordered her removed from the United States. On appeal, the respondent contests the Immigration Judge’s determination that her Virginia conviction for distributing a controlled substance renders her ineligible for a section 212(h) waiver, arguing that a State court issued a nunc pro tunc order reflecting that she was not convicted of distributing a substance controlled by Federal law. The Department of Homeland Security (“DHS”) opposes the appeal. Because the nunc pro tunc order reflects the respondent has not been “convicted” of an offense relating to a controlled substance within the meaning of the INA, the respondent’s appeal will be sustained and the record will be remanded for further proceedings.”
Many congrats, Ben!😎 A rare win for the rule of law and the “good guys” at the BIA. And, give the BIA panel (Judges Goodwin, Gorman, & Greer) credit for rejecting the ICE position and getting this one right under the categorical approach.
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Hello all,
Just wanted to share some good news! A client had her merits hearing yesterday afternoon in Seattle. Her asylum claim was based on her PSG of being an immediate family member of a police officer. She had been threatened by some maras and approached because the maras knew her husband was an officer. She fled within 2 weeks. The judge granted and DHS surprisingly did not put up much of a fight.
Sincerely,
Ramon Trujillo
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Ramon Trujillo
Law Offices of Ramon Trujillo
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Many congrats, Ramon! Clearly the correct result under Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). A former policeman is a PSG; so, undoubtedly the immediate family is also. And certainly, that relationship was “at least one central reason” for the persecution.
Imagine what a “Better Immigration Court” could look like if everyone had the awareness and integrity of the group in court for this case. Justice is a “team effort,” and it sounds like that’s what happened in your case.
That’s what should happen every day in every case at EOIR!
Also, I’ll bet there are more cases like this that were unfairly “locked out of our refugee/asylum system” by abusive use of Title 42 by the Trump and Biden Administrations.
“This Dude loves the ‘Miller Lite’ approach to asylum by Garland and Mayorkas, as well as Harris’s latest tone-deaf ‘victim shaming.’” Keeps him (as well as human smugglers) in business! Reaper Image: Hernan Fednan, Creative Commons License
SAN MIGUEL, El Salvador — Rejected by her family, Zashy Zuley del Cid Velásquez fled her coastal village in 2014, the first of a series of forced displacements across El Salvador. She had hoped that in the larger city of San Miguel she could live as a transgender woman without discrimination and violence, but there she was threatened by a gang.
She moved away from San Miguel, then back again in a series of forced moves until the 27-year-old was shot to death April 25, sending shock waves through the close-knit LGBTQ community in San Miguel, the largest city in eastern El Salvador.
“Zashy was desperate; her family didn’t want her … and the gangsters had threatened her,” said Venus Nolasco, director of the San Miguel LGBTQ collective Pearls of the East. “She knew they were going to kill her. She wanted to flee the country, go to the United States, but they killed her with a shot through her lung.”
One day after Del Cid’s slaying, U.S. Vice President Kamala Harris identified anti-LGBTQ violence in Central America as one of the root causes of migration in the region during a virtual meeting with the president of neighboring Guatemala, Alejandro Giammattei. She is visiting Guatemala and Mexico this week.
Transgender migrants were present in the Central American caravans that attempted to reach the United States border in recent years, fleeing harassment, gang extortion, violence and police indifference to crimes against them. Even in those large migrant movements, they say they faced harassment.
Things had been rough during Del Cid’s first stint in San Miguel. She had been living in a neighborhood where, as in many parts of the country, the MS-13 gang was the ultimate local authority. Gang members began to harass her, then brutally beat her, breaking her arm in 2015, Nolasco said.
“They warned her to leave, but she didn’t listen,” Nolasco said.
Del Cid moved in with Nolasco in the same neighborhood. One day, the gang grabbed Del Cid again.
“They took her, they wanted to kill her,” Nolasco said. “I begged them not to kill her, to let her go and she would leave the neighborhood.”
Del Cid moved back to her hometown, but her family rejected her again. She tried to please them, but she couldn’t, Nolasco said. Del Cid joined a church, got a girlfriend and had a baby girl, but could not maintain that life, she said.
She returned to San Miguel, where initially things seemed to go better. In 2020, Del Cid received humanitarian and housing support from COMCAVIS TRANS, a national LGBTQ rights organization, and the United Nations High Commissioner for Refugees.
Del Cid rented a home and opened a beauty salon there. She hired another woman to help her and was participating in an entrepreneurship program. She was preparing a business proposal to move the salon into its own space.
But Del Cid was shot in the back walking alone at night down the street. Passersby tried to help her and took her to a hospital, where she died. So far, police have made no arrests, and Nolasco believes that like other hate crimes in the country, “it will be forgotten; they’re not interested in what happens to us.”
Laura Almirall, UNHCR representative in El Salvador, said Del Cid’s killing frightened her community and saddened everyone who knew her.
“She was excited about her new plans and her new life. And unfortunately and tragically, everything came to an end,” she said.
Nolasco said that in San Miguel, some 70 miles east of the capital, the transgender community endures constant harassment from intolerant residents and gangs. They have rocks thrown at them, are beaten and are victims of extortion. If they go to police to make a report, they are insulted and demeaned. “Don’t come here to claim rights, because there are no rights for you,” police tell them, Nolasco said.
. . . .
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Read the rest of the article at the link.
Despite some legal nonsense from EOIR and sometimes from uninformed Circuit Judges who have never represented asylum seekers and know little of actual conditions in the Northern Triangle, neither El Salvador nor the other Northern Triangle governments are “willing and able” to protect most individuals suffering gender-based and other forms of persecution.Decisions claiming otherwise are, in most cases, legally wrong and disingenuous to boot.
The U.S. asylum system needs expert Asylum Officers at DHS and progressive expert Immigration Judges at EOIR. Babbling (misleadingly) about “sealed borders” won’t take the place of telling Garland and Mayorkas to stop screwing around, bring in progressive experts, and fix the U.S. asylum system before more die! V.P. Harris could have taken the first necessary step toward “fixing the Southern Border” without even leaving DC.
How are we going to promote the rule of law in other nations when we ourselves are unwilling to exhibit honesty and follow the law with respect to the most vulnerable in the world seeking legal refuge at our borders?
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com. — Why won’t Garland repudiate “Gonzo’s” racist, misogynist, anti-due-process policies @ EOIR? Republished under license“She struggled madly in the torturing Ray”– Garland’s failure to repeal Matter of A-B-, revoke other xenophobic precedents and rules, and appoint progressive asylum experts to end the institutionalized racism, misogyny, and denial of due process at EOIR has become a national disgrace that is crippling the Biden Administration and squandering the support of progressives! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
El Salvador’s house of horror becomes grisly emblem of war on women
Authorities have sought to portray the ex-policeman at whose home up to 40 bodies, mostly female, may be buried, as a freakish psychopath, despite the arrest of nine other suspects
Bryan Avelar in Chalchuapa and Tom Phillips
Published:
05:00 Tuesday, 25 May 2021
Day after day they flock to the emerald green house on Estévez Street, seeking news of loved ones who have vanished without a trace.
“They say there are lots in there, maybe 40,” said Jessenia Elizabeth Francia, a 38-year-old housewife who had travelled 20 miles to reach the heavily guarded building under a punishing midday sun.
Francia had come to Chalchuapa, a small town in western El Salvador, in search of her son, Luis Fernando, who disappeared seven years ago at the age of 16. “I just want to find at least his bones so I can bury them and find peace,” she said, clutching a cellphone showing a photograph of her missing child and the words: “I have faith.”
Others sought daughters or wives, Central American women feared to have fallen prey to the house’s proprietor, the former police officer and alleged serial killer Hugo Ernesto Osorio Chávez, who is feared to have buried his victims inside.
El Salvador: dozens of bodies found at ex-cop’s house investigated as femicides
“She was 24,” said Candelaria Carranza Castro, a silver-haired mother whose daughter went missing in July 2015 and who was among those to visit the house on Monday. “Whatever has happened I want to find her.”
The mass grave at No 11 Estévez Street was discovered on the night of 7 May after neighbours called police having heard the cries of a young woman. By the time police arrived more than an hour later she and her mother were dead – reportedly bludgeoned to death with an iron tube by Osorio, who confessed to the crimes. While taking the 51-year-old into custody, police stumbled across the half-buried bodies of two men in the house’s patio and, when they started digging, found more corpses below in a series of pits.
Authorities have yet to announce the precise number of bodies buried inside but the excavators still probing its foundations believe there could be as many as 40, and no fewer than 15.
. . . .
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Read the rest of the article at the link.
What, exactly, is Garland doing about EOIR to justify his continuance in office? What about supposed social justice, gender justice “activists” Lisa Monaco, Vanita Gupta, and Kristen Clarke? The continuing human rights, gender rights farce at DOJ and EOIR should outrage all progressives and be a continuing stain on all the reputations of feckless Biden Administration officials at the failed and ever more failing DOJ !
PANEL: THACKER, RICHARDSON, and QUATTLEBAUM, Circuit Judges.
OPINION BY: JUDGE QUATTLEBAUM
DISSENT: JUDGE RICHARDSON
KEY QUOTE FROM MAJORITY:
Juan Carlos Amaya, a citizen of El Salvador, seeks to avoid deportation to that country, fearing persecution on account of membership in the PSG “former Salvadoran MS-13 members.”1 Appellant’s Br. at 13–16. For that reason, he argued to an immigration judge (“IJ”) that his removal from the United States should be withheld.2 After the IJ denied Amaya’s claims, he appealed to the Board of Immigration Appeals (“BIA”). The BIA dismissed Amaya’s appeal, determining that the “former Salvadoran MS-13 members” PSG was “too diffuse” to satisfy the particularity requirement. J.A. 4. Assuming we must afford Chevron deference to the BIA’s decision, our question is whether we think the BIA’s decision is reasonable. Because we do not, we grant the petition in part and remand on this ground.
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Great opinion by Judge A. Marvin QUATTLEBAUM! He’s a Trump appointee whom I’ve criticized in the past. But, his analysis is “spot on” in this case!
Perhaps the Federal Courts are finally catching on to the BIA’s disingenuous “scissors approach” to PSG. That’s used to “cut off” all PSG asylum claims no matter how meritorious.
Here’s how it works. They incorrectly find that almost all “particularized” social groups fail the “social distinction” test. But, when you prove “social distinction,” they wrongly characterize the social group as too “amorphous” or “vague” to be particularized. In that manner, the BIA and many IJs can manipulate the law to reject proper “particular social groups” and keep their White Nationalist anti-asylum “handlers” at the DOJ happy, which also helps them retain their positions.
It will be interesting to see how that works out for them if, as many of us have recommended, Judge Garland actually puts some Appellate Judges on the BIA who understand asylum law and start applying it fairly, correctly, and in accordance with due process?
In making EOIR appointments, the Obama Administration generally eschewed the “best and brightest” with expertise representing asylum seekers and applying the UN Convention and the Refugee Act of 1980 in accordance with their humanitarian intent, rather as ways to advance a restrictionist agenda of deterring asylum seekers by wrongfully denying their claims. After all, how many asylum seekers are fortunate enough to have a good lawyer like Abdoul Aziz Konare represent them in their asylum cases? Not very many!
No, the average asylum seeker, many in detention and without adequate access to counsel or research materials, gets railroaded out with gobbledegook like “Chevron deference,” too “amorphous,” not “socially visible” and citations to cases even experienced Federal Judges often don’t correctly understand. So, getting asylum tends to depend not so much on the strength of your claim (many of which should be pretty easily grantable unless the IJ is “programmed to deny” — the norm these days), but on your lawyer, your IJ, and whether you are fortunate enough to have access to a thoughtful Article III judge like Judge Quattlebaum in this case. He took the time to figure out the bogus nature of the DOJ’s standard “BS arguments.”
Unfortunately, many Federal Judges would have just “punted” by accepting the “Chevron deference” argument for a “quick kill” without the need for much thought or analysis. After all, Court of Appeals Judges also like to “keep their dockets moving” and what easier victim to “throw under the bus” than an asylum applicant who is going to be deported to a place where he or she will be too busy fighting to stay alive to reflect on the deteriorating quality and lack of concern for fairness in the U.S. Judicial system.
The Trump kakistocracy actually went a long way toward convincing the world that the once widely admired U.S. Justice system is now little more than a “third world sham” — controlled by nationalist politicos, programmed to reject, deny, dehumanize, and operated largely for the exclusive benefit of the rich white ruling class.
I hope that “Team Garland” will “End the EOIR Clown Show” 🤡 and restore integrity to our system. But, so far, it bumbles along chewing up and spitting out hope, humanity, and lives, while mocking any normal understanding of “justice” on a daily basis. Not something I’d want on my watch!
PANEL: THACKER, QUATTLEBAUM, and RUSHING, Circuit Judges.
OPINION BY: Judge Quattlebaum
DISSENTING OPINION: Judge Stephanie D. Thacker
KEY QUOTES FROM JUDGE THACKER’S DISSENT:
The majority opinion begins its analysis with a reminder of the applicable standard of review, emphasizing the importance of deference in this context. But the majority fails to mention a threshold requirement for the application of deference — in order to be accorded deference, agency decisionmakers below must conduct sufficient analysis to which we can defer. See Cordova v. Holder, 759 F.3d 332, 338 (4th Cir. 2014) (“[T]he Supreme Court long ago instructed that ‘the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.’” (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943))). Here, neither the Immigration Judge (“IJ”) nor the Board of Appeals (“BIA”) provide even the bare minimum level of explanation that our precedent requires. This failure is an abuse of discretion.
The agency decisions here are precisely the kinds of cursory opinions we have repeatedly rejected for their failure to engage with an applicant’s arguments and evidence. I therefore respectfully dissent.
. . . .
In conclusion, I borrow from the majority opinion, which likens the standard of review to an offensive lineman in football. In light of the limited analyses below, which were at worst nonsensical and cursory at best, the standard of review “offensive lineman” in this case cannot protect the decision below. Instead, the weak analysis of the agencies left their blind side wide open.
I dissent.
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“[A]t worst nonsensical and cursory at best.” Those prophetic words from Judge Thacker’s dissent should outrage every American! Don’t vulnerable individuals, effectively on trial for their lives, deserve better from the U.S. Justice system? Is the “half-baked” standard applied by the panel majority really the way we would want ourselves or our loved ones judged in any matter of importance, not to mention what is in many ways a “capital case?” What’s going on in our Article III Judiciary?
Read the full opinion at the link. This is a prime, very disturbing example of the “any reason to deny” standard used by the Trump regime to subvert justice for asylum applicants of color. Here, as effectively pointed out by Judge Thacker it was (laboriously and wordily) “rubber stamped” by twocomplicit Article III Judges.
To call this “second class justice” would be far too generous. It’s basically no justice at all and a damning illustration of how intellectual absurdity and race-driven results have become institutionalized and acceptable, not just in the Immigration Courts, but in various places throughout our judicial system that is failing to deliver on the Constitutional requirement of “equal justice for all.”
Any activists who think that the problems of racial tension in America are going to be resolved without addressing the systemic judicial failure to stand up against the illegal, racially-biased mistreatment of asylum seekers and other migrants by the likes of Trump, Miller, Sessions, Barr, and Wolf, as enabled by the Supremes and other Article III Judges who have “swallowed their whistles,” is mistaken.
As cogently pointed out by Judge Thacker, this was a “no brainer remand” under any application of the proper standards. Indeed, the panel majority spent more time and effort, and killed more trees, looking for ways to “paper over” the BIA’s indefensible and unprofessional performance than it would have taken them to correct it! This panel majority appeared much more interested in “rehabilitating the BIA” and “codifying injustice” (probably as an aid to rubber stamping more assembly line injustice in the future) than it was in achieving justice for the young man whose life was at stake.
Indeed, Judge Quattlebaum and Judge Rushing are so arrogantly “tone deaf” and impervious to human suffering that they employ a “snarky sports analogy” in essentially imposing a potential death sentence on a young Salvadoran refugee without any serious pretense of due process or effective and intellectually honest judicial review. Is this how Quattlebaum and Rushing would like to be “judged” if they or their loved ones (or someone they considered “human”) were on trial for their lives? No way! So why is it “due process” for this young man?
Obviously, these are two judges who are confident in a privileged life “above the fray” that puts them beyond moral and legal accountability for the unjust human misery and suffering that they cause. It’s all a “sports joke” to them. But, not so funny to those whose lives are at stake in what once was supposed to be a serious legal process but now has devolved into a deadly and totally dysfunctional “Clown Show.”
It’s also a national disgrace and a serious indictment of our entire justice system that this type of clearly “dangerous and defective judging” goes on in our life-tenured judiciary. America deserves better from our Article III Judiciary!
I want to share some good news: my Deportation Defense Clinic at the Hofstra Law Clinic won an asylum case on the PSG of “U.S. law enforcement labeled gang members” before Judge Poczter at 290 Broadway for a client falsely accused of gang allegations. See the redacted decision attached. We’re waiting to see if DHS appeals within these next two weeks and are prepared to continue the fight if necessary.
Quote on Page 13:
“Respondent’s social group, ‘U.S. law enforcement labeled gang members’ is cognizable, in that its members share an immutable characteristic that is socially distinct within Salvadorian society and defined with sufficient particularity.”
I’m willing to share the redacted TOE and brief with those interested.
Deep gratitude is owed to CLINIC/NITA, Michelle Mendez, Vickie Neilson, and folks at Hofstra including Lauris Wren, law graduates Lorena Paulino and Trishshawn Raffington, and many others.
Dr. Tom Boerman and I are working on a law review article on this topic, and I hope this new resource will be helpful to others defending clients from false gang allegations. More to follow soon.
So, even in the time of time of extreme White Nationalist restrictionism in Government, there are still plenty of “winnable” asylum cases out there if individuals: 1) get access to the hearing process; 2) have access to competent lawyers; 3) get time to prepare and document cases; and 4) have a fair and impartial Immigration Judge with knowledge of asylum law. A fair and reasonable INS Assistant Chief Counsel is also an important factor.
How many valid cases like this are being turned back at our borders under the regime’s “fake COVID-19” rules with no hearings at all? How many are being summarily deported without fair credible fear interviews or an opportunity for impartial judicial review as a result of the Supremes’ latest expedited removal constitutional abomination?
Interestingly, this case was so well prepared and documented that ICE and the Clinic stipulated as to the testimony and merely submitted that record to Judge Poczter for a legal analysis and decision. Shows that without political interference, judges and parties can work together to facilitate a fair and timely resolution of cases without trampling on due process.
It’s simply a “crime against humanity” that the Immigration Court system is run by bigoted anti-asylum zealots with no interest in due process or fundamental fairness.
So, what if decisions like Judge Poczter’s (a former BIA Attorney Advisor during my tenure) were the precedents, instead of deny, deny, deny? What if “best practices” were valued? What if achieving correct results in accordance with due process were the object, rather than increasing the number of asylum denials to fit a false narrative? What if asylum law were properly applied to protect, rather than reject?
This could be a system that would do justice and make Americaproud. But, it’s not going to happen without an independent, merit-based judiciary and an Administration that works to achieve equal justice for all, rather than undermining it at every step.
“Patricia Xiomara Martinez De Artiga challenges the denial of her 26 application for asylum, withholding of removal, and protection under the 27 Convention Against Torture (CAT). Martinez listed her son as a derivative 28 beneficiary on her application. The Immigration Judge (IJ) found that Martinez 29 testified credibly regarding serious, individualized threats against her and her 30 children by the infamous Mara Salvatrucha (MS-13) gang. Nevertheless, the IJ 31 denied Martinez’s claims for asylum and withholding, concluding that the 32 gang targeted Martinez because she had frustrated the gang’s recruitment 33 efforts and not on account of membership in her son’s family. On the issue of 34 CAT protection, the IJ determined that Martinez failed to meet her burden for 35 relief because she fled El Salvador promptly after MS-13 threatened her. We 36 hold that the IJ erred as a matter of law when it penalized Martinez for her prompt flight, and we cannot confidently predict that a remand would be 2 futile. We therefore DENY the government’s motion for summary denial, 3 GRANT Martinez’s petition for review, and REMAND the case.”
Let’s see. Woman credibly threatened with torture by group known to have capability, often aided and/or abetted by a corrupt and often complicit government, and renowned for leaving a trail of headless corpses behind. She does what any reasonable human might do in the same position: flees immediately for her life. It’s an “open and shut” case for CAT protection — should have been granted by stipulation between the parties.
Instead, in the warped, twisted, irrational, misogynist, and racially biased world of EOIR, a Latino women’s rational actions become a judge’s reason to deny her clearly warranted protection. According to this judge, she had to be dumb or unfortunate enough to wait to be tortured or killed to get protection. Of course it’s absurd! But, what’s even more absurd is that a corrupt, unconstitutional system that daily metes out this type of deadly utter nonsense to vulnerable humans seeking legal protection is allowed to continue to operate in our nation at all.
Can it really get any worse! It raises the obvious question of why the “appellate immigration judges” who approved this ludicrous abomination of illegality and “counter logic” are still on the bench rather than in remedial training or looking for other jobs.
It’s no surprise that a fundamentally unjust and unconstitutional system that wastes time looking for ways to deny cases that should easily be granted is running an uncontrolled backlog of at least 1.4 million cases. It’s obvious that under Sessions, Whitaker, and Barr, the already stressed, reeling, and mismanaged Immigration “Courts” have become hotbeds of misogyny, anti-immigrant bias, anti-asylum bias, anti-Latino bias, pro-DHS favoritism, unprofessionalism, grotesque mismanagement and waste of taxpayer funds, and just all around horrible judging. They are America’s Star Chambers, pure and simple.
Remanding individual cases is not going to fix these systemic problems that are bringing down our Constitution and de-legitimizing our entire justice system. But, shutting down the system and requiring that it be administered by an independent judicially-appointed monitor to return some semblance of due process and fundamental fairness is not only within the Article III Courts’ power, but is actually constitutionally required to halt this Administration’s systemic abuses of justice. Or, send the cases that actually need to be tried at this point in time to U.S. Magistrate Judges for real due process hearings.
The Courts of Appeals constantly expose the elementary mistakes, illegality, outright irrationality, the widespread, intentional denials of due process, fundamental fairness, and the gross failures of basic judicial expertise by the “EOIR Subdivision” of DHS Enforcement. But, you can be sure that this is just the “tip of the iceberg.”
Some Court of Appeals panels use the same “rubber stamp” techniques as the BIA, hiding their own deficiencies behind a shield of “undue deference” to a failed and unconstitutionally biased agency. And, even more individuals with potentially valid claims are unfairly turned down because they can’t find competent lawyers or don’t have the wherewithal to get to the Court of Appeals at all.
Then there are those who can’t stand the pain and torture inflicted by the “New American Gulag” so give up viable claims without full litigation. Or they are sent to rot and die in Mexico waiting for a purposely unfair hearing system stacked against.
Now, tens of thousands, many with potentially valid claims for protection, are simply being turned back at the border in clear violation of our statutes, our Constitution, and international obligations, not to mention our obligations to our fellow humans. They are denied access to the system. The Administration fabricates numerous lies and false myths to justify its actions, most rooted deeply in the anti-Hispanic racism and misogyny of Trump, Miller, and their accomplices.
The reasons given by the regime for this racist misconduct are phony as a three dollar bill. Yet, some equally dishonest authorities, including judges who should know better, will accept them without critical examination of their fraudulent nature.
Complicity comes in many forms and can often be hidden in the present. But, the the massive, intentional, human rights violations, fueled by the inherent racism of the Trump Administration and its toadies, will someday come out. The full extent of the entirely unnecessary human carnage inflicted on humanity by our nation and the invidious reasons behind it will be documented.
Then, future generations will ask: Where were the Federal Courts while this was happening? Why didn’tprivileged and supposedly independent life-tenured judges stop the “slaughter of innocents?” Why did they allow baby jails, kids in cages, family separation, torture in the New American Gulag, Star Chambers, andNazi-style abuses by corrupt U.S. border guards to continue, unabated? Why were they complicit in the dehumanization of people of color by an overtly racist and scofflaw regime? What is it about Trump’s and Miller’s racist agenda that they were too dim or intellectually dishonest to understand?
Justice will be too late for the dead, tortured, maimed, dehumanized, and destroyed. But, the reputations of these “Modern Day Confederates, Jim Crows, and their enablers” eventually will come tumbling down just like the statutes of their morally and intellectually bankrupt predecessors who also fought for or advanced the cause of racism and man’s inhumanity to men, women, and particularly, children. They had their own flimsy excuses, fabrications, myths, and B.S. justifications which have crumbled over time leaving just the nakedness and ugly truth of their racism and/or complicity for others to see.
This is not a “normal Administration” and falsely treating it as such by approving or failing to stand up to their attacks on our Constitution, human rights, and human dignity is not “normal behavior” for Federal Judges, legislators, and other public officials who allow this grotesque system to continue to destroy lives. “Deferring” to patently racist schemes and overtly biased officials isn’t legal, even when the “cover” of some other legal pretext is offered.
Those who are witness to the many abuses must insure that those who operate and allow this thoroughly corrupt system to persist don’t escape with the “Nuremberg Defense” of “just following orders” or “just following the law.”
Actually, equal justice for all isn’t just a slogan. Our Constitution clearly requires it, and it’s the job of Federal Judges to insure that it happens. Judges who won’t do that, don’t belong on the bench. Certainly, when there is regime change, no future Federal Judge or Justice should be appointed or confirmed unless he or she has demonstrated a commitment to equal justice for all supported by a record of opposing the systemic racial injustice and other invidious discrimination inflicted by the Trump regime through its program of “Dred Scottification” of the other.
There is no national emergency more important right now than the failure of our justice system to provide and enforce equal justice for all. The many who are enabling this regime’s toxic agenda by insuring that justice is unequal and that the system discriminates against and demeans immigrants, asylum applicants, and others of color are themselves operating outside the law, not to mention humanity. There will be a reckoning! Count on it!
Due Process Forever. Complicity in Racist Abuses, Never!
“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”
[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]
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*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.
Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.
Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!
This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.
Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?
Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.
More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!
The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.
Due Process Forever! Captive Courts & Complicit Judges, Never!
Professor Karen Musalo
