"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.
“Little Shop of Horrors:” Another human life devoured by the “due process eating plant” hidden away in the bowels of the BIA! PHOTO: Little Shop of Horrors at Grafton High School 14.jpg, Creative Commons License
Faiza Sayed Assistant Professor of Law and Director of the Safe Harbor Project Brooklyn Law School PHOTO: Brooklyn Law Website
ABSTRACT—Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision- making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.
The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and
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political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.
AUTHOR—Assistant Professor of Law, Brooklyn Law School. I am thankful to Matthew Boaz, Richard Boswell, Jason Cade, Stacy Caplow, Pooja Dadhania, Elizabeth Isaacs, Kit Johnson, Anil Kalhan, Elizabeth Keyes, Catherine Kim, Shirley Lin, Medha Makhlouf, Hiroshi Motomura, Prianka Nair, Vijay Raghavan, Philip Schrag, Andrew Schoenholtz, Sarah Sherman- Stokes, Maria Termini, Irene Ten-Cate, and S. Lisa Washington for thoughtful conversations and comments on drafts. This Article benefitted from feedback at the New Voices in Immigration Law Panel at the 2022 AALS Annual Meeting, the 2021 Clinical Law Review Writers’ Workshop at NYU, and the junior faculty workshop at Brooklyn Law School. I am grateful to Benjamin Winograd and Bryan Johnson for helpful conversations about the Board, unpublished decisions, and FOIA, and to David A. Schnitzer and Visuvanathan Rudrakumaran for discussions about the Andrews and Uddin cases. Thank you to Emily Ingraham for outstanding research assistance and to the editors of the Northwestern University Law Review for excellent editorial assistance. Financial support for this Article was provided by the Brooklyn Law School Dean’s Summer Research Stipend Program.
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Professor Sayed has written an “instant classic” that should be a staple for future historians assessing the legal career and impact of Merrick Garland and how the Democratic Party has failed humanity time again on immigrant justice when the stakes were high and the solutions achievable!
Here’s my “favorite” part:
In 1999, Attorney General Janet Reno attempted to deal with the BIA’s rapidly increasing backlog of appeals by implementing “streamlining rules” that made several changes to the way the Board operated.41 Most importantly, certain single permanent Board members were now permitted to affirm an IJ’s decision on their own and without issuing an opinion.42 The Chairman of the BIA was authorized both to designate certain Board members with the authority to grant such affirmances and to designate certain categories of cases as appropriate for such affirmances.43 Finally, Attorney General Reno increased the size of the Board to twenty-three members.44 Evaluations of the reforms found that they “appear to have been successful in reducing much of the BIA’s backlog” and “there was no indication of ‘an adverse effect on non-citizens.’”45
Despite the documented success of Attorney General Reno’s reforms, in 2002, Attorney General John Ashcroft announced controversial plans to further streamline the BIA’s decision-making.46 These rules “fundamentally changed the nature of the BIA’s review function and radically changed the composition of the Board.”47 To support the reforms, Ashcroft cited not only the backlog but also “heightened national security concerns stemming from September 11.”48 The reforms included making single-member decisions the norm for the overwhelming majority of cases and three-member panel decisions rare, making summary affirmances common, and reducing the size of the Board from twenty-three members to eleven.49 A subsequent study found that Attorney General Ashcroft removed those Board members with the highest percentages of rulings in favor of noncitizens.50 As a result of the reforms, outcomes at the BIA became significantly less favorable to noncitizens,51 and the federal circuit courts received an unprecedented surge of immigration appeals.52
In the wake of harsh criticism of immigration adjudications by federal circuit courts, Attorney General Alberto Gonzales directed the DOJ to conduct a comprehensive review of the immigration courts and the Board in 2006. Based on this review, Attorney General Gonzalez announced additional reforms “to improve the performance and quality of work” of IJs and Board members.53 The most significant change was the introduction of performance evaluations, which include an assessment of whether the Board member adjudicates appeals within a certain time frame after assignment.54 Scholars have explained that “the performance evaluations give an incentive to affirm rather than reverse IJs by emphasizing productivity, and because immigrants file the overwhelming number of appeals with the BIA . . . the incentive to affirm means outcomes that favor the government.”55
The Trump Administration once again transformed Board membership. Board members whose appointments predated the Trump Administration were reassigned after refusing buyout offers,56 and the Administration expanded the Board to add new members.57 Most of the new Board members appointed under the Trump Administration had previously served as IJs,
where they had some of the highest asylum denial rates in the country.58
Garland has failed to replace the asylum denying judges who were “packed” onto the BIA during the Trump era with qualified real judges who are experts in asylum law, unswervingly committed to due process, and able to set proper precedents and enforce best judicial practices. That’s a key reason for the “prima facie arbitrary and capricious inconsistencies’ in EOIR asylum grant rates — 0% to 100% — a rather large range!
The latter read like a compendium of legally and factually questionable “how to deny asylum and get away with it” instructions. Absent is any hint of the properly fair and generous treatment of asylum seekers required by the Supremes in Cardoza-Fonseca and once echoed in BIA precedents like Mogharrabi, Kasinga, Chen, Toboso-Alfonso, A-R-C-G-, and O-Z- & I-Z- .
Some well-reasoned grants that could be widely applied to recurring situations are also buried on the “shadow docket.” At the same time, as cogently described by Professor Sayed, cases with almost identical facts that resulted in denial are also hidden there. This system is simply NOT functioning in a fair, reasonable, and legally sound manner. Not even close! Yet, Garland has not brought in competent expert judicial administrators and managers at EOIR who recognize the problems and would make solving them, rather than aggravating them, “priority one!” Why?
Contrast that with the enlightened movement among American Law Schools to promote immigration “practical scholars” and clinicians to administrative positions in recognition of their inspirational leadership and superior “real life” problem-solving skills! It’s as if Garland and the rest of Biden’s inept immigration bureaucracy operate in a “parallel universe” where immigration, human rights, and racial justice don’t exist!
Not surprisingly, some of the BIA’s best and most useful guidance on asylum came before the “Ashcroft purge.” But, they still remain “good law” that Immigration Judges can use, despite the “any reason to deny” culture reflected by today’s “Trump holdover” BIA. Curiously, this negative asylum “culture” is tolerated and enabled by Garland, even though it directly contradicts promises made by Biden and other Dem politicos during the 2020 campaign! Why?
The Obama Administration also did not act to undo the damaging changes made during the Bush Administration. Thus, the ambivalent attitude of Dem Administrations toward justice for immigrants and building a fair, functional BIA has much to do with the current dysfunctional, unfair, and horribly administered mess at EOIR!
I was one of those BIA judges removed during the “Ashcroft purge,” essentially for “doing my job,” ruling fairly, and upholding the rule of law.Notably, many of the views of the “purged” judges were eventually reflected in Court of Appeals, and even a Supreme Court, reversals of the BIA.
Once “exiled” to the Arlington Immigration Court, except where bound by contrary BIA precedent, I ruled the same way that I had in many of the cases coming before me at the BIA. Guess what? I was seldom reversed by my former colleagues! I used to quip that “I finally got the ‘deference’ that I never got as Chair or a BIA judge.”
ICE appealed relatively few asylum and/or withholding grants; surprisingly often, their “closing summary” actually echoed what likely would have been in my final oral opinion, had it been been necessary to issue one. A number of BIA reversals by the Fourth Circuit Court of Appeals during my Arlington tenure made points that I, and/or my ”purged colleagues,” had raised in vain during my time on the BIA. A few even involved poorly-reasoned attempts by the BIA to reverse some of my decisions granting relief!
And, oh yes, there were the gross inconsistencies in unpublished “panel” decisions. Once, an Arlington colleague and I came down with opposite conclusions on whether a particular Virginia crime, on which there was then no BIA precedent, involved “moral turpitude.” Within a week of each other, we both received an answer from different BIA panels. We BOTH were reversed! As we joked at lunch, the only consistent rationale from the BIA was that “the IJ was wrong!”
The current BIA is a continuing blot on American justice, The same information and resources available to Professor Sayed in writing this article were available to Garland. How come she “gets” it and he (and his lieutenants) don’t? Why didn’t Garland hire Professor Sayed and a team of other experts like her to straighten out and rejuvenate EOIR?
And, let’s not forget that the increased public access to the “shadow docket,” even if still inadequate, is NOT the result of EOIR wanting to provide more transparency or any enlightened reforms stemming from Garland. No, it required aggressive litigation by the New York Legal Assistance Group (“NYLAG”) against EOIR to force even these improvements!
Does the public REALLY have to sue to get basic services and information that a properly functioning USG agency should already be providing? Merrick Garland seems to think so! How is this the “good government,” promised but not delivered by Biden in the critical areas of immigration, human rights, and racial justice?
Vulnerable asylum seekers and others whose lives depend on a just, professional, expert EOIR deserve better! Much, much better! The inexplicable and disastrous failure and refusal of Garland and the Biden Administration to deliver on the promise of due process and equal justice at EOIR will likely haunt the Democratic Party and our nation well into the future. As my friend Jason “The Asylumist” Dzubow would say, “It didn’t have to be this way!”
“At the heart of this case is an effort by advocates to learn about the circumstances of an asylum-seeker’s tragic death in federal custody. The Freedom of Information Act exists for just such a purpose—to ensure an informed citizenry, promote official transparency, and provide a check against government impunity. Yet here the advocates’ FOIA requests met first with silence and then with stonewalling; only after the advocates filed suit did the government begin to comply with its statutory obligations. Our task is to discern whether the government’s belated disclosure was “adequate” under FOIA. We conclude that it was not. … REVERSED, VACATED, and REMANDED.”
As Andrew Free ;pointed out to me, the 9th Circuit suggested some potential “bad faith” at work here in footnote 2 (p. 22):
2 Our conclusion is strengthened by evidence that the Government withheld information under this exemption in an overbroad manner. For instance, ICE redacted a portion of Hernandez’s credible fear interview under Exemption 7(E), but when TLC received an unredacted version from the CoreCivic production, the redacted text read as follows: “I left because my life was threatened by the Maras gang. A group of Maras raped and tried to kill me I was afraid for my life and left Honduras.” This statement from Hernandez could not possibly fall under the category of techniques, procedures, or guidelines. Such a redaction suggests that the agencies may have invoked Exemption 7(E) in an effort to shield prejudicial information. See Pulliam v. EPA, 292 F. Supp. 3d 255, 260 (D.D.C. 2018).
This raises the additional questions of 1) why is this going on in a Dem Administration that promised to restore the rule of law toimmigration; and 2) why is Garland’s DOJ defending this nonsense and incredibly shoddy process in Federal Court?
Subject: Victory for Immigrants and Their Advocates!
All,
I am proud to share that NYLAG and co-counsel Public Citizen reached a historic settlement in NYLAG v. Board of Immigration Appeals (18 Civ. 9495 (S.D.N.Y.)). Under the settlement entered last night, the Board of Immigration Appeals (BIA) will for the first time make the vast majority of its decisions available to the public by publishing them online, helping to level the playing field for immigrants.
NYLAG brought this case to challenge the BIA’s longstanding failure to make its judicial decisions publicly available, which meant that neither immigrants nor their attorneys could access these crucial documents to help them defend their cases and seek relief. This gave an unfair advantage to the government’s lawyers, who could access these same decisions to advocate for removal of NYLAG’s clients and immigrants across the country, in proceedings already stacked against them. To challenge this practice, NYLAG made a request under the Freedom of Information Act (FOIA) that BIA post all of its final orders in immigration cases in its electronic reading room– which FOIA has required since 1996 for all federal agencies.
Last February, NYLAG and co-counsel Public Citizen won a critical victory in the case, when the U.S. Court of Appeals for the Second Circuit ruled that people can sue to enforce the FOIA requirement that federal agencies post certain documents online so that they are accessible to the public.
Last night, the United States District Court for the Southern District of New York approved the settlement agreement between NYLAG and the BIA, under which the BIA has agreed to place nearly all its opinions into an online reading room. This will ensure that immigrants and immigration advocates across the country (including NYLAG’s own Immigrant Protection Unit’s staff and clients) will have access to these opinions within six months of when they are issued. The Board also must post prior decisions dating back to 2016.
This victory is a testament to NYLAG’s ability to create large-scale change. Kudos to the NYLAG attorneys involved in this case – Danielle Tarantolo, Jessica Ranucci, and Jane Stevens (before her retirement) of SLU; and Jodi Ziesemer and Melissa Chua of IPU –and our dedicated co-counsel at Public Citizen. This victory could not have been achieved without their partnership, diligence, and hard work.
Beth
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Congrats to all concerned! As noted in Beth Goldman’s last paragraph, while Garland has been reluctant to make progressive changes and to bring much needed management and substantive reforms to EOIR, advocacy groups have been able to force some systemic improvements through litigation.
It seems like a wise AG would “clean out the deadwood” @ EOIR and bring in dynamic experts who can solve problems and make the necessary changes to restore due process to his ridiculously broken system. But, that apparently would be an AG “other than Garland.”
“Eyore In Distress” — Ethics have long been “on vacation” at EOIR. Sitting judges are muzzled from speaking publicly and can be disciplined for minor transgressions. But, some judges accused of serious misconduct get away scott free under an intentionally opaque process that operates without public input or oversight. Meanwhile DOJ politicos and EOIR Senior Execs operate in open violation of 5th Amendment Due Process and the most basic conflict of interest requirements. The end result is that individuals systematically are denied the “fair and impartial adjudicator” that our Constitution requires! Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Let’s hop on over to ICE and see what our “partner” Kent Frederick wants us to do today to help out our masters at DHS enforcement!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Hon. “Sir Jeffrey” Chase reports to the Round Table:
From: Frederick, Kent
Sent: Friday, June 01, 2018 12:59 PM
To: Weil, Jack (EOIR)
Subject: Matter of Castro-Tum/ IJMorley
Dear Judge Weil:
Just for reference, here is the portion of the decision that 1.1Morley violated:
Matter of Castro-Tum, 27 l&N Dec. 271 (AG 2018), which explicitly directed the matter be remanded “to the Board with instructions to remand to the Immigration Judge to issue a new Notice of Hearing within 14 days of the date of this order. If the respondent again fails to appear, the Immigration Judge should proceed according to 8 U.S.C. §
1229a(b)(5).”) Matter of Castro-Tum, 27 l&N Dec_ at 294. Moreover, the Attorney General explicitly rejected the option to terminate or continue this matter on remand if Castro-Tum again failed to appear. Castro-Tum,27l&N Dec.at291 n.12 (“DHS adequately alleged that it provided sufficient notice because the Notice to Appear informed the respondent of all statutorily required information about the proceedings…. DHS also adequately alleged that the form of the notice was sufficient. DHS personally served the Notice to Appear on the respondent and mailed the Notice of Hearing to the address the respondent repeatedly provided the government.”(internal citations omitted)).
Kent J. Frederick
Chief Counsel
Office of the Chief Counsel
U.S. Deportment of Homeland Security immigration and Customs Enforcement 900 Market Street, (b)(6).(b)(7)(C) Philadelphia, PA 19107
(267) 479 —___(2_622_479-3456 (fax)
(b)(6),(b)(7XC)
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Thanks to Judge Sue Roy for forwarding this:
[Above] please find a redacted email obtained through a FOIA request by private attorney Matthew Hoppock. It is a private email between Kent Frederick, the ICE District Counsel in Philadelphia, and Jack Weil, who at the time was the Philadelphia court’s ACIJ. Although the first part of the email is redacted, in the second part, the ICE District Counsel provides Jack with the basis that led to removing Castro-Tum from the case’s proper IJ, Steve Morley.
It should be noted that this is not a motion with service on opposing counsel; this is a private email between ICE and the ACIJ about the handling of a particular case.
While the Chief Immigration Judge should be taking steps to prohibit these types of communications, it bears noting that the present Chief Immigration Judge is the former Atlanta ICE District Counsel.
Best, Jeff
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Thanks to NDPA warrior Matthew Hoppock for once again having the perseverance to use the FOIA to document and “out” misconduct @ DOJ, EOIR, and DHS! What’s the purpose of an “appeals process” if DHS can just raise its dis-satisfaction with legal issues to their “partners” in EOIR “administration” and ask them to take action? For the record, Judge Morley eventually was removed from the case and replaced with an Assistant Chief Immigration Judge who carried out Sessions’s wishes.
I think this is EXACTLY the type of misconduct that “Gonzo” Sessions intended to promote when he unethically exhorted “his judges” to “partner with DHS” to deny due process, target refugee women for abuse, torture, and death, and speed up removals. (However, because Sessions’s undeniable maliciousness was accompanied by mind-boggling and resource squandering incompetence, the overall result was to exponentially increase backlogs while institutionalizing injustice, unethically endangering the lives of migrants, and falsely smearing the professional reputations of their attorneys.)
Sessions, unethically acting as a “quasi-judicial official,” in violation of every ethical rule of judicial disqualification for overt bias, prejudgement, lack of impartiality (every case in which “Gonzo” Sessions participated is a grotesque violation of this — a man whose overt racism once led HIS OWN PARTY to find him unqualified for a Federal Judgeship!), appearance of conflict, and actual conflict of interest, unleashed a torrent of gross unethical behavior at DOJ and DHS. But, there were plenty of lawyers already “on the payroll” who were perfectly happy to engage in unethical conduct in support of the Trump kakistocracy’s White Nationalist, racist, xenophobic, misogynist agenda.
I’ll let the various comments I have received speak for themselves:
When I was an IJ . . . I complained about this practice to Chief IJ Creppy at an open forum at the IJ conference involving an ex parte complaint Frederick had lodged against . . . . Creppy just brushed it off as interagency cooperation.
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At the least, these two should be referred to their state bars for disciplinary proceedings for engaging in impermissible ex parte communication.
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WOW! This is crazy.
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Wow! Just WOW! We always knew it was happening, but this is pretty blatant evidence!
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Utterly unacceptable! It may seem ludicrous or petty, but it is far more than an objectionable practice. It optimizes a fundamental violation of due process that is routinely accepted and even expected.
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Shameful, what happened to the appeal process Mr. Fredrick!
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Is anyone really surprised?
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Disappointed, but not surprised.
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And has been happening ever since I started practicing in the mid-eighties. I agree it is totally unacceptable.
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Jack has been nothing but a profound disappointment. I’m sure you all remember his arrogant and almost insane boast that he. could teach constitutional law to a child respondent. This email is both unethical and stupid: what kind of intellect allows for this response to him to put in writing? I never expect much from an ICE official, but I am always go smacked when a judge acts like a Watergate miscreant.
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Completely shameful, but not surprising. We frequently suspected this kind of thing went on.
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The conduct of “Gonzo” Sessions, then-Director McHenry (still on the EOIR payroll, although thankfully removed from participation in the Immigration Courts), and the EOIR and DOJ officials involved in this sorry incident is reprehensible.
BUT, HERE’S THE REAL PROBLEM:AG Merrick Garland, a respected Article III Judge and one-time Supreme Court nominee, was appointed by President Biden supposedly to clean up the ungodly mess at Justice left by the Trump kakistocracy. He isn’t getting the job done! Not even close!
EOIR requires immediate due process reforms, competent administration, a complete “housecleaning,” and, most of all, progressive leadership by “practical scholars.”
Yet, after three months in office Garland has nary lifted a finger to institute even rudimentary progressive reforms to restore due process at EOIR. Things are just as bad in our disgracefully dysfunctional Immigration Courts as they were on Jan. 20, 2021, in some cases even worse!
Beyond this indolence, Garland outrageously affirmatively appointed 17 non-expert, non-diverse, non-progressive “judges” who were recruited and hand-picked by Billy Barr. Along with Gonzo Sessions, Barr is one of the most unethical, unqualified, un-indicted (yet) AGs in American history. Garland’s lack of awareness, absence of immigration expertise, disrespect for progressive “practical scholars,” and trashing of humane values is super-damaging to our nation!
Of course, nobody can be an “expert” in every legal subject. But, the job of an effective leader is to pick folks who are experts to manage and staff these areas. I don’t see that type of expertise at today’s DOJ or EOIR Headquarters (although there are some well-qualified progressive Immigration Judges on local courts who could have been immediately detailed to EOIR HQ to stabilize the out of control situation).
Garland presides over a massive, deadly, systemic failure and chaotic “Clown Show” 🤡 @ EOIR that threatens the entire U.S. Justice system. I’ve actually known excellent Immigration Judges who have been suspended, docked pay, or threatened with removal for ex parte communications far, far, far less serious than that described above.
How do we teach ethics to an upcoming generation of lawyers when AG Garland and his senior managers are unwilling to hold accountable those who participated in the Trump White Nationalist kakistocracy @ Justice?
Team Garland daily mocks justice by not instituting standards that require demonstrated subject matter expertise, unswerving commitment to due process, fundamental fairness, and a record of ethical behavior from those appointed to, and continuing to serve in, Immigration Judgeships.
Under Garland, EOIR is a life threatening, democracy destroying “disaster zone.” “Team Garland’s” inexcusable failure to appoint qualified progressive experts and to undertake the “no brainer” immediate reforms essential to get the EOIR system back on track has, sadly, become a major problem for the Biden Administration and our nation.
It’s all so unnecessary, so aggravating, so damaging to humanity and American democracy. It’s even worse because the “complicit culprits” are folks (Biden appointees) who were “supposed to know better” and had the incredible, unprecedented advantages of potentially drawing on years of exceptionally high quality research, overwhelming documentation, smart, creative, practical recommendations, and extraordinarily qualified progressive “practical scholars and advocates” ready to solve problems from “inside Government.”
But, they can’t solve the problems solely “from the outside.” It takes an unrelenting combination of progressive experts pushing from the outside and receptive progressive judges and officials on the inside to make the radical changes necessary to save our nation!
Garland’s disrespectful, indolent, and tone deaf treatment of migrants, progressives, and simple human dignity, as well as his gross misunderstanding and diminution of what continues to drive racial and social injustice in America, will certainly come back to haunt the Biden Administration!
Let me reiterate: There will be neither racial justice nor social justice in America as long as our Immigration Courts operate as White Nationalist enforcers of “Dred Scottification of the other.” Immigration/human rights are where “the rubber meets the road” for racial and social justice in America! Immigrants’ rights are human rights, are civil rights, are constitutional rights! As MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”
“Willian Rubio Barahona petitions for review of a decision by the Board of Immigration Appeals (“BIA”) upholding the denial of his request for asylum and withholding of removal, based on a finding that serious reasons exist to believe Barahona committed a serious nonpolitical crime outside the United States. We hold that the “serious reasons for believing” standard requires a finding of probable cause before an alien can be subject to the mandatory bar set forth in 8 U.S.C. § 1158(b)(2)(A)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii), and 8 C.F.R. § 1208.16(d)(2). Because no such finding was made below, we reverse and remand for further proceedings.”
“Plaintiff-Appellant New York Legal Assistance Group (“NYLAG”) seeks access to non-precedential “unpublished opinions” issued by Defendant-Appellee the Board of Immigration Appeals (“BIA”) in immigration cases. NYLAG wants to consult the opinions, which are not routinely made available to the public, to aid in its representation of low-income clients in removal and asylum proceedings. NYLAG asserts that the BIA’s failure to make the opinions publicly available violates the agency’s affirmative obligation under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(2), to “make available for public inspection in an electronic format final opinions . . . [and] orders, made in the adjudication of cases.” In this action under FOIA’s remedial provision, 5 U.S.C. § 552(a)(4)(B), which authorizes district courts “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant,” NYLAG seeks an order requiring the BIA to make available to the public all unpublished opinions issued since November 1, 1996, as well as future unpublished opinions. The United States District Court for the Southern District of New York (Paul A. Crotty, J.) dismissed the case, concluding that FOIA’s remedial provision does not authorize district courts to order agencies to make records publicly available. We conclude that FOIA’s remedial provision authorizes the relief NYLAG seeks. FOIA’s text, read in light of its history and purpose, empowers district courts to order agencies to comply with their affirmative disclosure obligations under 5 U.S.C. § 552(a)(2), including the obligation to make certain documents publicly available. We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.”
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Why would the BIA even want to withhold unpublished decisions or bar someone from asylum based on less than probable cause? Why would anyone want to further impede the already difficult task of representing the most vulnerable in Immigration Court? What if the resources wasted on litigation to diminish due process were “repurposed” to working with NYLAG and other pro bono all-stars to achieve universal representation? Much of what EOIR does these days makes little or no sense unless looked at from a White Nationalist nativist perspective.
When will it end? The Biden Administration proclaimed a “new day” on immigration and human rights issues. But, you sure can’t tell from the junk continuing to come out of the BIA and being defended in court by OIL. No matter how welcome the change in tone from the President is, it requires concerted action and getting better judges, administrators, and litigators in place to actually change policies, produce fairer results, and save lives!
Congrats to Allison Heimes and the good folks at Fair Trials Americas.
Also, congrats to my former Georgetown Law superstar, Arlington Intern, & NY JLC, Elizabeth Gibson (“The Gibson Report”) and her colleagues at the NY Legal Assistance Group!
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
🇺🇸🗽⚖️Due Process Forever! We need “a little less talk and a lot more action!”
Mary Kenney, Deputy Director, National Immigration Litigation Alliance (“NILA”) writes:
Hello all –
NILA, NWIRP, AIC and the Law Offices of Stacy Tolchin are thrilled to announce that the district court just granted declaratory and injunctive relief in our nationwide class challenge to A-File FOIA delays, Nightingale v. USCIS. The court orders:
Declaratory relief due to Defendants DHS, USCIS and ICE’s pattern or practice of failing to make timely A-File FOIA determinations;
Injunctive relief permanently enjoining Defendants from further failing to adhere to the statutory deadlines for A-File FOIA requests;
That Defendants to make determinations on all backlogged FOIA requests within 60 days; and
That Defendants submit quarterly compliance reports to the Court and class counsel going forward.
Here are some great findings from the Court:
Defendants’ “delay in processing A-File FOIA requests . . . . undermines the fairness of immigration proceedings, particularly for the vast number of noncitizens who navigate our immigration system without assistance of counsel.”
“A comprehensive remedy is needed and is long overdue.”
“[S]ince 2017 these defendants have employed aggressive immigration enforcement policies that made an increasing [A-File FOIA]workload predictable and expected. The unfortunate reality is that FOIA is the only realistic mechanism through which noncitizens can obtain A-Files. Given the critical importance of the information in A-Files to removal defense and legalizing status, it is not at all surprising that the number of A-File FOIA requests have increased along with this increase in immigration enforcement.”
“USCIS also complains that it recently tried to increase its fees through a new regulation that could have added more resources to its FOIA budget, but that effort is currently preliminary enjoined in this District. . . . . This argument is particularly troubling as it insinuates that FOIA processing is entirely dependent on the fees paid by the very people who are harmed by the defendants’ delays.
Congrats to Mary and everyone else involved in this extraordinary “team effort” to hold the immigration bureaucracy (now “kakistocracy”) accountable after years of unacceptable and illegal conduct which has directly undermined the rule of law and immigrants’ rights!
So, let’s summarize the absurdity, and not let the “malicious incompetents” at EOIR off the hook, either:
With well over 1 million backlogged cases, many pending for years, EOIR chooses to “expedite and prioritize” “not quite ready for prime time” recent cases, without giving the private parties adequate time to prepare, or even get lawyers in many cases;
In “cahoots” with DHS, EOIR insures that cases will be scheduled without regard to the delays in getting the necessary file material from DHS via FOIA requests;
EOIR fails to impose reasonable discovery rules on DHS, nor do they insist, as any ”real” court would, that no case will be scheduled for a merits hearing until DHS complies with respondents’ reasonable requests for file materials;
USCIS, once a “self-funding agency,” improperly diverts resources to bogus racist inspired, enforcement activities;
As a result of this gross mismanagement, USCIS falsely claims “bankruptcy,” and illegally tries to increase FOIA fees, a move properly blocked by Federal Courts;
USCIS then falsely blames respondents for the discovery delays caused by its own misappropriation of resources and racist policies.
The solution:The Biden Administration must immediately oust the White Nationalist kakistocracy ☠️ at DHS and EOIR and replace it with competent experts from the NDPA who will restore order, rationality, professionalism, efficiency, and integrity to a dysfunctional system that has undermined the public interest and common good.
It’s not rocket science! Just competence, morality, and humanity.
Congrats to my friend Zachary Nightingale, Partner at Van Der Hout LLP, in San Francisco, who was the “lead named plaintiff” in this “sure to be famous” case. The “Nightingale rule” and “getting the Nightingales” are likely to become synonymous with what passes for “discovery” in Immigration Court, at least until we get Article 1.
Job Opportunity:Clock Repair Technicians Wanted. Start Date: January 21, 2021. Location: DHS & EOIR. Duties: Fix broken “asylum work authorization clock 🕰” to account for reality that most major delays in completing asylum hearings consistent with due process are caused by the Government’s incompetence, elevation of racist enforcement initiatives over due process and fundamental fairness, and “Aimless Docket Reshuffling,” NOT by asylum applicants and their (often pro bono or “low bono”) representatives. Draft legislation to repeal this irrational, unnecessary, and counterproductive statute.
Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.
In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–
In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr,2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).
in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).
In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr,2019 U.S. App. LEXIS 21310 (6th Cir. 2019).
David Cleveland ESQUIRE
Now that he has a copy of his client’s file, David Cleveland is finally able to relax.
More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr,944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions,884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder,745 F.3d 336 (8th Cir. 2014).
In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.
How can I prevent surprise in Immigration Court?
When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).
Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.
To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov
In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center. A model FOIA request can also be found at the same page.
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Take it from me, as someone who has presided over hundreds of asylum hearings, this is great advice from two of the best to set foot in my courtroom!
As I always said in my my “mini lectures” on “Presenting an Asylum Case in Immigraton Court:” “Beware and Be Prepared!” Preparation, preparation, preparation! It’s what wins cases (and appreciation from “the bench”).
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
She was a Leader of the NDPA before there was an NDPA! Now Michelle Mendez and her CLINIC Team are giving you “the skinny” on how to combat EOIR’s “Raging War on Due Process!”
Friends,
Wanted to share with you two new CLINIC resources:
An immigration judge may issue an in absentia removal order if the Department of Homeland Security, or DHS, establishes by clear, unequivocal and convincing evidence that the respondent had written notice of the hearing and is removable as charged on the Notice to Appear. There are many reasons why a respondent may fail to appear at a removal hearing, including lack of notice of the hearing, sickness, a breakdown in transportation, limited or no English knowledge, or because the respondent is a child without the help of a responsible adult who can assist them in getting to the hearing. As documented in the report Denied a Day in Court: The Government’s Use of in absentia Removal Orders Against Families Seeking Asylum, CLINIC learned about these reasons firsthand while representing 46 families released from detention and successfully challenging their in absentia removal orders. Perhaps the main factor for failing to appear at scheduled hearings in immigration court is the presence or absence of legal counsel to orient the respondent through the layers of government bureaucracy and the complex immigration system.
On November 18, 2019, CLINIC submitted a Freedom of Information Act, or FOIA, request to the Executive Office for Immigration Review, or EOIR, seeking data on the number of in absentia removal orders issued based on legal representation status. CLINIC requested three sets of in absentia order data: the total number of in absentia removal orders issued since 2008, the number of in absentia orders issued to Unaccompanied Children, or UACs, since 2008, and the number of in absentia orders issued to families classified by EOIR as “Family Unit,” FAMU, cases since November 16, 2018. On March 13, 2020, EOIR responded with a three-tab Excel spreadsheet of raw in absentia removal order data. CLINIC has calculated the in absentia removal order raw data into percentages.
Here are some key takeaways from the data:
Although, according to EOIR statistics, the current overall representation rate is 65 percent for all pending cases, those who are unable to secure representation are at extraordinary risk of receiving in absentia removal orders. 92.6 percent of those with in absentia orders issued in fiscal year, or FY, 2020 were unrepresented.
Although, according to EOIR statistics, the current overall representation rate is 68 percent for all UAC pending cases, UACs who are unable to secure representation are also at extreme risk of receiving in absentia removal orders. 88 percent of those with in absentia orders issued in fiscal year FY2020 were unrepresented.
Since 2008, the percentage of unrepresented respondents with in absentia removal orders has been at least double that of in absentia orders of removal issued to represented respondents.
Since 2008, at least 70.8 percent of UACs who were issued in absentia orders of removal were unrepresented and, so far this fiscal year, the unrepresented rate for UACs who received in absentia orders of removal has been the highest ever, at 88 percent.
The number of in absentia removal orders issued by EOIR to unrepresented respondents in FY2020 surpassed the total number of in absentia orders issued to unrepresented respondents in FY2019 in just the first five and a half months of FY2020.
EOIR has issued more in absentia removal orders in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.
Total in absentia removal orders from FY2008 through FY2016 were 246,893. Total in absentia removal orders from FY2017 through FY2020 (through March 13, 2020), were 267,696
EOIR has issued more in absentia removal orders to UACs in the three and a half combined fiscal years covering the Trump presidency, than it did during the eight combined fiscal years covering the Obama presidency.
Total in absentia orders of removal issued to UACs from FY2008 through FY2016 were 20,123. Total in absentia removal orders issued to UACs from FY2017 through FY2020 (through March 13, 2020), were 26,228.
During the date range covered by the data (FY2008 through FY2020 Q2), immigration judges issued the fewest number of in absentia removal orders in FY2012, the year that DHS announced DACA. During FY2012, DHS officially launched the prosecutorial discretion program in November 2011 and reviewed many pending removal proceedings to identify low-priority cases meriting favorable exercises of prosecutorial discretion.
Most immigration courts saw a decrease in in absentia orders of removal for unrepresented noncitizens in FY2012 compared to FY2011.
Unrepresented UACs suffered a huge jump of in absentia removal orders from FY2014 (1,701) to FY2015 (5,836). This hike in in absentias for UACs occurred concurrently with the increase in UACs fleeing El Salvador, Guatemala and Honduras, and arriving in neighboring countries and at the U.S.-Mexico border.
89.6 percent of all family units who received an in absentia removal orders from November 16, 2018 to September 30, 2019, were unrepresented.
Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in unrepresented FAMU cases during this period: 4,108 (which translates into 93.8 percent of the total in absentia removal orders issued by this court).
Of all the immigration courts, the Miami Immigration Court issued the second most in absentia removal orders in unrepresented FAMU cases during this period: 3,347 (which translates into 89.5 percent of the total in absentia removal orders issued by this court).
94.2 percent of all family units who received in absentia removal orders from October 1, 2019 to March 13, 2020, were unrepresented.
Of all the immigration courts, the Houston Immigration Court issued the most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,931 (which translates into 95.62 percent of the total in absentia removal orders issued by this court).
Of all the immigration courts, the Atlanta Immigration Court issued the second most in absentia removal orders in FAMU cases from October 1, 2019 to March 13, 2020: 4,662 (which translates into 98.27 percent of the total in absentia removal orders issued by this court).
Oddly, several immigration courts that oversee only detained dockets, including the Elizabeth Detention Center, recorded in absentia removal orders during the FOIA time period.
In FY2020, immigration judges have issued more in absentia removal orders than any prior year since 2008, and we are only five and a half months into the federal fiscal year.
Of all the immigration courts, the Harlingen Immigration Court has recorded the most unrepresented in absentia removal orders overall in FY2020 so far: 8,357.
Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders overall in FY2020: 753.
Of all the immigration courts, the Miami Immigration Court has recorded the most unrepresented in absentia removal orders for UACs in FY2020: 430.
Of all the immigration courts, the New York City Federal Plaza Immigration Court has recorded the most represented in absentia removal orders for UACs in FY2020: 73.
Thanks for helping us share these!
Michelle N. Mendez (she/her/ella/elle)
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.
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Now, it’s hardly “news” that there is a strong positive correlation between legal representation and appearance in Immigration Court. That information came to light way back in the Obama Administration and has consistently been reinforced by data that contradicts the lies about failures to appear put out on a regular basis by regime officials.
Given the clear correlation, the best way to make a fair due process system function would be if the Government worked hand in hand with NGOs, charitable organizations, local bar associations, and others involved in providing pro bono representation to insure that at least all asylum applicants and children are represented before the Immigration Courts. Due Process and fundamental fairness would be served and the in absentia rate would crater. In other words, due process with efficiency, an achievable “win-win!”
Instead, the Trump regime, through both EOIR and DHS, has made a concerted attack on the right to counsel in a transparent attempt to increase the number of in absentia orders and “speed up the deportation railroad” that EOIR now runs as its “one and only mission.”
How does something masquerading as a “court” system conduct a “deportation railway?” It takes lots of complicity and supposedly responsible public officials and citizens intentionally “looking the other way” and studiously ignoring the obvious!
I hope that advocates will be able to use the data provided by CLINIC to expose to the Article III Courts and Congress the rampant fraud, waste, abuse, and just plain “malicious incompetence” of EOIR and DHS (is there really a difference these days? Not apparent to most of us who follow the “Star Chambers” with regularity.).
Remember, moral cowardice and intellectual dishonesty often begin with picking on the most vulnerable and defenseless among us. And what follows is likely to be unspeakably bad, based on history!
Thanks, Michelle, my friend, for all you and CLINIC do.
Clink the above link to enter the weird, wacky world of EOIR in the “Age of Sessions.” Let’s remember, there is nothing whatsoever remarkable about the Castro-Tum case except that Sessions chose, for some reason, to make it a “cause celeb.” Indeed, nobody even knows if this dude is still in the US, is alive, or even existed in the first place.
It’s pretty easy to understand why the taxpayers are being ripped off and our justice system is in tatters under Jeff Sessions as he squanders our money on his White Nationalist agenda! Think what America might be like under a real Attorney General, instead of “Gonzo Apocalypto.” The real problems, Russian interference in our elections, smuggling, police misconduct, human trafficking, voter suppression, hate crimes against vulnerable groups, rampant gun violence, government corruption, and violence against women go largely unaddressed while Sessions chases after non-problems to carry through on his “wing nut, extremist, far-right, immigration restrictionist” agenda that made him an “outlier” even within the GOP during his days in the Senate.
I look forward to the day when Jeff Sessions is no longer Attorney General of the US. It might be the only thing I have in common with Donald Trump.
In an action reflecting on the agency’s transparency, EOIR responded to a Freedom of Information Act request by Long Island, NY attorney Bryan Johnson for the remanded decisions of Charlotte Immigration Judge Barry Pettinato by redacting pretty much everything from all of the decisions, including sections of the Immigration and Nationality Act and the names and citations of published BIA precedent decisions that were referenced in the Board’s judgments. For example, one such redacted BIA decision provided pursuant to the FOIA request now reads that the appeal was from the IJ’s decision denying the respondent’s “applications for [BLANK] pursuant to section [BLANK] of the Immigration and Nationality Act (“Act”); [BLANK], for [BLANK] pursuant to section [BLANK] of the Act, [BLANK], and for [BLANK] pursuant to [BLANK].” A later section of the same redacted decision now reads: “During the pendency of this appeal, the Board issued [BLANK][BLANK] (BIA 2014) and [BLANK] [BLANK] (BIA 2014, which clarifies the elements required to establish [BLANK] under the Act.” Here is the link to all 58 redacted decisions: https://amjolaw.com/2018/05/24/doj-redacts-all-the-relevant-facts-and-law-in-all-58-remand-decisions-of-immigration-judge-barry-pettinato/.
As names and all other identifying information were (correctly) redacted from each decision, it is unclear why EOIR saw the removal of virtually all information from the decisions to be necessary. The BIA publishes precedent decisions in which it substitutes initials for the respondent’s name, but otherwise includes the facts and law relevant to the case. As attorney Johnson points out, “Almost all the cites to BIA and Circuit Court decisions are redacted under the (b)(6) exemption, which is supposed to protect private personal information. The title to a published BIA decision is about as far from personal information as it gets.”
FOIA results: evidence of Immigration Judge V. Stuart Couch’s shocking prejudgment of all domestic violence asylum claims
by Bryan Johnson on April 20, 2018
At the bottom, readers will find the all of the decisions of Immigration Judge V. Stuart Couch that resulted in BIA remands for the Fiscal Year of 2017.
Time and time again, IJ Couch’s decisions denying victims of domestic violence asylum contain carbon copy language.
Thus, it is clear that IJ Couch’s has been prejudging all claims that have a history of domestic violence, and quite literally copying and pasting language he used to deny other domestic violence victims asylum. The following is one of his favorite passages to copy and paste.
The respondent’s evidence reflects that [the] physical and verbal abuse of her was related to his violent and jealous nature…The evidence in this case is more consistent with acts of general violence and therefore does not constitute evidence of persecution based on a statutorily protected ground.
Immediately below, I have excerpted key parts of the BIA & IJ Couch decisions. A clear pattern has emerged: IJ Couch does not grant asylum to women who are victims of domestic violence, despite clear instructions to the contrary from the BIA.
Pages 31-48:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, Guatemala has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Guatemalan society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison.”
BIA’s holding:
The respondent’s testimony reflects that people in the community knew them as a couple and
made comments reflecting their notions that the respondent could not escape the relationship (Tr. 232 at 66).
The respondent also testified that her parents did not help her leave the
relationship because of ingrained views that women are the property of men (Tr. at 33-35).
Under these circumstances, we conclude under the same reasoning as Matter of A-R-C-G-,
supra, that the proffered social group here is “immutable,” “particular” and “socially distinct.”
To the extent that the Immigration Judge determined that the respondent is not a member of this
particular social group, that determination is clearly erroneous. See Matter of A-R-C-G-, supra,
at 3 91 (the question whether a person is a member of a particular social group is a finding of fact
that we review for clear error).”
Pages 65-80:
Immigration Judge’s decision:
“As noted in the particularity analysis supra, El Salvador has significant and troubling
issues related to domestic violence and crimes against women. However, unlike the married
alien in Matter of A-R-C-G-, the respondent lacks an identifiable trait like marriage or
inability to seek assistance from authority that distinguishes her from other women in
Salvadoran society. Similar to the particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
El Salvador, and thereby renders her past harm indistinct by comparison.”
BIA decision:
Finally, the record does not support the Immigration Judge’s determination that the past harm
the respondent suffered is “consistent with acts of general violence” which undermines her claim
for asylum (l.J. at 10). Further, even assuming her former partner’s “criminal tendencies and
substance abuse” played a role in his conduct (/d.), the appropriate inquiry is whether the
asserted protected ground was or would be “at least one central reason” for the claimed or feared
harm. See section 208(b)(l)(B)(i) of the Act; Matter of C-T-L-, 25 I&N Dec. 341, 349 (BIA
2010)
Pages 81-96:
Immigration Judge Decision:
The respondent testified that when was drunk, he would physically and
verbally abuse her. She further testified “he was fine” when he was not under the influence
of alcohol. Thus, ‘s abuse appears related to his own criminal tendencies and
substance abuse, rather than conclusive evidence he targeted the respondent on account of
her proposed particular social group. The evidence in this case is more consistent with acts of
general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground.
BIA decision:
Upon review of the record, we conclude that a remand is necessary for the Immigration
Judge to further assess whether the respondent established that she is a member of a cognizable
particular social group. The Immigration Judge found that the respondent’s case is factually
distinguishable from Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), because she was not in
a marital relationship with her former partner and did not seek assistance from authorities
(I.J. at 7-9). While relevant, the distinguishing factors identified do not preclude the respondent
from establishing that her proposed particular social group is cognizable under the Act, and we
find that further fact-finding regarding the respondent’s experiences in El Salvador is necessary
to determine whether she satisfied the elements required to establish a valid particular social
group. See Matter of A-R-C-G-, supra, at 393 (stating that “adjudicators must consider a
respondent’s own experiences, as well as more objective evidence, such as background country
information”).
Pages 102-120:
BIA decision:
We find clear error in the Immigration Judge’s determination that the respondent was not
abused by her former partner on account of her particular social group. See l.J. at 12; 8 C.F.R.
§ 1003.l (d)(3)(i); Matter of N-M-, 25 l&N Dec. 526, 532 (BIA 2011) (a persecutor’s actual
motive is a matter of fact to be determined by the Immigration Judge and reviewed by this Board
for clear error). The respondent testified that her former partner told her that a woman is not
more intelligent than he is and that the respondent has no value, comments which indicate that he
harmed her because of her perceived lesser status in the relationship (Tr. at 46).
Immigration Judge Decision:
The respondent’s evidence reflects that [the] physical and verbal abuse of her
was related to his violent and jealous nature, sometimes accompanied by his use of alcohol.
Thus, ‘s abuse appears related to his own criminal tendencies or substance abuse,
rather than conclusive evidence he targeted the respondent on account of her proposed
particular social group. The evidence in this case is more consistent with acts of general
violence and therefore does not co nstitute evidence of persecution based on a statutorily
protected ground. Huaman-Cornelio v. BIA, 979 F.2d 9 at l 000; Ruiz v. US. Att’y Gen., 440
F.3d 1247, 1258 (11th Cir. 2006).
Pages 137-155
BIA decision:
We disagree with the Immigration Judge that the respondent’s proposed social group, consisting of Honduran women
who are viewed as property and whose domestic partners refuse to allow them to leave their
relationship lacks the requisite immutability, particularity, and social distinction (l.J. at 7-10).
See Matter of M-E-V-G-, 26 l&N Dec. 227, 236-43 (BIA 2014) (outlining factors to be
considered when discerning whether a social group is cognizable under the Act); Matter of
The respondent’s evidence reflects that ‘s physical and verbal abuse of her
was related to his violent and jealous nature, heavy use of drugs and alcohol, and association
with drug traffickers. Exhibit 3, tab C at 17-19. Thus, ‘s abuse appears related to his
own criminal tendencies or substance abuse, rather than conclusive evidence he targeted the
respondent on account of her proposed particular social group. The evidence in this case is
more consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds
that the respondent has not established targeted her due to her particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
Pages 157-173
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature. The respondent testified Mr. ‘
motivation to harm her was anger when she would ask him for money so she could buy food
for her family. She recalled the final argument that led to their separation occurred when the
respondent confronted Mr. regarding his affair with her sister-in-law. Thus, Mr. ‘
abuse of the respondent appears related to his own violent and criminal tendencies, rather than
conclusive evidence he targeted her on account of her membership in a particular social group.
The evidence in this case is more consistent with acts of general violence and therefore does
not constitute evidence of persecution based on a statutorily protected ground.
Consistent with its immutability and particularity analysis supra, the Court finds the
respondent is an unfortunate victim of violence against women like far too many women in
Guatemala, and thereby renders her past harm indistinct by comparison. For these reasons, the
Court finds the respondent has not met her burden to show the requisite social distinction
necessary for membership in a particular social group.
BIA decision:
The Immigration Judge further concluded that the respondent did not meet the immutability,
particularity and social distinction requirements for a cognizable particular social group (I.J. at 9-
12). We have held that depending on the facts and evidence in an individual case, victims of
domestic violence can establish membership in a cognizable particular social group that forms the
basis of a claim for asylum or withholding of removal. Matter of A-R-C-G-, 26 I&N
Dec. 388 (BIA 2014).
Pages 228-243
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘s physical, verbal, and sexual
abuse of her was related to his violent and jealous nature. The respondent testified Mr.
‘s motivation to harm her was anger after she reported his abuse to government
authorities. Thus, Mr. ‘s abuse of the respondent appears related to his own
violent and criminal tendencies, rather than conclusive evidence he targeted her on account of
her membership in a particular social group. The evidence in this case is more consistent with
acts of general violence and therefore does not constitute evidence of persecution based on a
statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at 1000; Quinteros-Mendoza
v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court finds that the respondent has not
established Mr. targeted her due to her membership in a particular social group,
which is required to prove the requisite nexus for asylum relief. INA§ 208(b)(l)(B)(i).
BIA decision:
There appears to be no dispute that the verbal, physical and sexual abuse suffered by the
respondent at the hands of her stepfather, which occurred several times per week over a period of
years, rises to the level of past persecution. See, e.g., Barahon v. Holder, 588 F.3d 228, 232,
(4th Cir. 2009) (observing that “[a] key difference between persecution and less-severe
mistreatment is that the former is ‘systematic’ while the latter consists of isolated incidents”).
However, the Immigration Judge rejected as invalid the respondent’s proposed particular social
group of”Mexican children who are perceived as property and lack effective familial protection,”
finding that it lacked the requisite immutability, particularity, and social distinction (I.J. at 7-9).
The question whether a group is a “particular social group” within the meaning of the Act is a
question of law that we review de novo. Matter of A-R-C-G-, supra, at 390. On review, we find
that the particular social group posited by the respondent, under the circumstances of this case, is
valid under the reasoning of our recent decisions clarifying the approach to particular social
groups. See Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, 26 I&N
Dec. 208 (BIA 2014).
Pages 264-283
Immigration Judge decision:
The respondent’s evidence reflects that her former spouse’s physical, sexual, verbal,
and psychological abuse of her was related to his violent and jealous nature, and frequent
intoxication from alcohol. The respondent testified that is an alcoholic whose
motivation to harm her stemmed from his anger, dislike for her, jealous nature, and infidelity
with other women. Exhibit 2, tab C at 12-13. Based upon the respondent’s testimony, it
appears the threats, assault and rape she suffered at the hands of was intended to
intimidate and threaten her to comply his own selfish and criminal demands for sex.
Thus, the abuse suffered by the respondent appears related to the violent and criminal
tendencies of her abusive former spouse, rather than conclusive evidence she was targeted on
account of her membership in a particular social group. The evidence in this case is more
consistent with acts of general violence and therefore does not constitute evidence of
persecution based on a statutorily protected ground. Huaman-Cornelio v. BIA, 979 F.2d at
1000; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164-65 (4th Cir. 2009). The Court fmds
that the respondent has not established her former spouse targeted her due to her membership
in a particular social group, which is required to prove the requisite nexus for asylum relief.
INA§ 208(b)( l)(B)(i).
BIA decision:
We additionally conclude that the Immigration Judge’s finding that the respondent was able
to leave her ex-husband is clearly erroneous (l.J. at 10-11).
However, the record reflects that the respondent’s ex-husband continued to threaten and physically abuse the respondent after -their separation,
despite her move to a town over 2 hours away from him, and that he raped her in…2014, after their divorce.
Pages 315-334
Immigration Judge decision:
The respondent’s evidence reflects that Mr. ‘ physical, verbal, and sexual abuse
of her was related to his violent and jealous nature, often fueled by his use of alcohol and
drugs. Exhibit 2, tab H at 1-2. Mr. ‘ motivation to harm her appears to be based upon his
own criminal tendencies and substance abuse, rather than conclusive evidence he targeted
her on account of her membership in a particular social group.
BIA decision:
We also note that even if the evidence and testimony support a finding that the
respondent’s husband has a “violent and jealous nature” (I.J. at 12), this is not clearly separate
from a motive to persecute his wife based on feelings of domination and control, the hallmarks
of domestic violence.
Pages 373-393
Immigration Judge decision:
The respondent’s evidence reflects that her husband’s physical, verbal, and
psychological abuse of her was related to his violent and jealous nature, at times affected by his
use of alcohol. The respondent testimony suggests her husband’s motivation to harm her was
his dislike for her and suspicion she was being unfaithful to him. His motivation also appears
related to the respondent’s desire to leave him because of his infidelity, and his demands for
custody of their son. Based upon the respondent’s testimony, it appears the threats, assaults
and psychological abuse she suffered at the hands of her husband was intended to intimidate
her to obtain some unclear result.
BIA decision:
We conclude, based on the particular facts presented on this record that the respondent
established that she was a member of the particular social group she articulated. We further
conclude that the Immigration Judge erred in concluding that this case is distinguishable from
Matter of A-R-C-G-, supra, based principally on the fact that the respondent was able to separate
and live apart from her husband after he moved out of their home in 2013 (l.J. at I 0-l l ).
The respondent’s ability to live apart from her husband in Honduras is not a distinguishing factor
from the social group rationale articulated in Matter of A-R-C-G-, supra, where the respondent
credibly testified that her husband refused to consent to a divorce and showed up unannounced
and uninvited at her home on several occasions, once touching her in a sexual manner and telling
her that he has a “right” to her as his wife. Additionally, the respondent testified that she was
unable to leave the relationship in Honduras for numerous cultural reasons, including her fear that
would take their son away from her and her belief that she was unable to obtain a divorce
because of ‘s ties to local government officials (l.J. at 3-4; Tr. at 51, 56, 64-73, 99, 105).
See Matter of A-R-C-G-, supra, at 393 (recognizing that “a married woman’s inability to leave the
relationship may be informed by societal expectations about gender and subordination, as well as
legal constraints regarding divorce and separation.”). Further, that domestic violence is prevalent
in Honduras does not mean that the respondent’s proposed particular social group lacks discrete
boundaries, as the Immigration Judge determined (l.J. at 11).
*************************************
EOIR has been known to pass off this type of judicial misconduct as “normal deviations” in judging. But, there is a difference between honest variances in judicial philosophies and approach, which are present to some extent in all diverse judicial systems and might produce differing results, and clearly biased and unfair judging. Judge Couch’s performance clearly fits within the latter.
To state the obvious:
All of these incidents were “specifically targeted.” Therefore, Judge Couch’s determination that they were part of “generalized violence” is clearly fiction.
Asylum applicants are not required to demonstrate “conclusive evidence” of anything. “Conclusive evidence” is not a legal standard in any part of asylum adjudication.
What should have happened:
Judge Couch should have been removed from each of these cases for bias;
Like U.S. Courts of Appeals, the BIA should have “outed” Judge Couch, by name, in published opinions to give both applicants and the Fourth Circuit Court of Appeals notice of his problematic adjudication of asylum cases.
If Judge Couch continued his biased and unfair judging he should have been 1) ordered by the BIA not to hear any asylum cases involving women from the Northern Triangle, and 2) told that if his performance in asylum cases did not improve, he would be referred to the EOIR disciplinary system for Immigration Judges based on actual bias against asylum applicants.
There is simply no room in a true Due Process system, particularly one where many respondents are unrepresented, for a biased, anti-asylum judge like Judge Couch. Is this “being the world’s best administrative tribunals guaranteeing fairness and Due Process for all?” No Way! Jeff Sessions, who often enunciates biased, anti-asylum positions, is part of the problem, not the solution! Due Process can’t be restored to the U.S. Immigration court system until Jeff Sessions and the USDOJ are removed from the process.
We need an independent judiciary capable of telling judges who perform like Judge Couch to correct their behavior immediately — in other words, “shape up or ship out.”
