🤯 CAT-ASTROPHE: TOM MOSELEY DOWNS OIL, AS 3RD REACTS TO EOIR’S DISDAIN FOR FOLLOWING CIRCUIT PRECEDENT!

Train wreck
Train wreck — 
“A heck of a way to run the railway!”
Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca3-on-cat-procedural-failures-not-following-instructions-llanes-quintero-v-atty-gen

“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.”

[Hats off to Thomas E. Moseley!]

Thomas E. Moseley
Thomas E. Moseley ESQ

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

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!

🇺🇸 Due Process Forever!

PWS

08-27-23

🇺🇸⚖️🗽 GW IMMIGRATION CLINIC STUDENTS SAVE ANOTHER LIFE!😎 — “[He] clicked the trigger of the gun, which made a sound, but did not fire a bullet.”

GW Law Immigration Clinic Director Professor Alberto Benítez & Co-Director Professor Paulina Vera

Professor Alberto Benítez reports:

This past Wednesday, August 2, Immigration Judge (IJ) Dinesh Verma of the Hyattsville Immigration Court granted asylum to Immigration Clinic clients R-R- and her 17-year-old son, D-R-. R-R- and D-R- have been Clinic clients since 2019 and their asylum applications were filed that year with the assistance of the Clinic. Their merits hearing was originally scheduled for 2020, but was postponed until this past Wednesday due to the pandemic. They were represented at their hearing by Immigration Clinic summer intern Brennan Eppinger, a rising 2L.

R-R- and D-R- fled Honduras after R-R- stood up to a gang member who was trying to recruit her son, D-R-, to transport drugs. D-R- was 11 years old at the time. The gang member later broke into their home, put a gun to R-R- ‘s head, asked R-R- if she had ever played Russian roulette, and the quote in the subject line is what happened next. R-R- and D-R- sought safety in the United States shortly after.

Please join me and Professor Vera in congratulating Navil Infante, Alex North, Rachel Kidd and Jasmine Elsmasry, who all worked on the case. IJ Verma is a GW Law alum and was a student in my Immigration Law I class in 1997. Brennan noted this fact on the record but the IJ (who did remember me) and the ICE trial attorney waived any conflict issue.

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

Alberto Manuel Benitez

Professor of Clinical Law

Director, Immigration Clinic

The George Washington University Law School

650 20th Street, NW

Washington, DC 20052

(202) 994-7463

(202) 994-4946 fax             

abenitez@law.gwu.edu

THE WORLD IS YOURS…

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

Many congrats to all involved! 

Interestingly, I used the “Russian Roulette analogy” yesterday in referring to AG Merrick Garland’s dismissive attitude toward the outrageous inconsistencies and abuses in his EOIR asylum adjudications. 

⚖️☠️ BLOWING THE BASICS! — IJ Misapplies “Under Color Of Law Doctrine” In CAT Case; BIA Affirms; 10th Circuit Reverses, Blowing Away Garland DOJ’s BS “No Jurisdiction” Argument In The Process — “[The IJ’s] interpretation defies logic and the law.” — We Deserve Much Better From Dem AG!

This is a wonderful, inspiring result, produced by great student lawyering, a thoughtful IJ, and an ICE ACC with a sense of justice and practicality. It should be the rule, not the exception, in EOIR asylum adjudication! But, sadly, it isn’t!

Alfred E. Neumann
Has Alfred E. Neumann been “reborn” as Judge Merrick Garland? “Not my friends or relatives whose lives as being destroyed by my ‘Kangaroo Courts.’ Just ‘the others’ and their immigration lawyers, so who cares, why worry about professionalism, ethics, and due process in Immigration Court?”
PHOTO: Wikipedia Commons

I virtually guarantee that if this case had been adjudicated at the border, in detention, and/or on one of Garland’s “expedited/dedicated” dockets, the result would have been unfavorable. And, depending on the circumstances, it’s not even clear that an applicant with this type of very grantable claim would have access to the asylum adjudication system under Biden’s “enjoined but stayed transit rules!” See, e.g., https://twitter.com/Haleaziz (A “temporary win” for the Biden Administration, engineered by two 9th Cir. Dem judicial appointees, is a big loss for humanity and the rule of law, defended only by dissenting Trump appointee, Judge VanDyke, a result that should leave advocates scratching their heads about their place in today’s mushy Dem Party.)

Cases like this illustrate how the EOIR system could be run in a fair, efficient, professional, and properly humane manner! But, they don’t answer the question of why isn’t set up to run that way in every case under Garland!

Also, and quite perversely, the failure of the Biden system to produce fair and equitable results at the border puts a premium on individuals who can avoid border processing and get to the interior (the exact opposite of the result Biden claims to be trying to achieve)! 

This is a totally screwed up system being “administered” by a Dem Administration that sorely lacks both courage and a clear vision of how to insure that asylum seekers and other immigrants, particularly those of color, receive due process and justice in America!

🇺🇸Due Process Forever!

PWS

08-04-23 

⚖️🗽 TRIPLE HEADER!  — Cornell Immigration Clinic Wins 3 @ BIA!

Professor Stephen Yale-Loehr
Professor Stephen Yale-Loehr
Cornell Law

Professor Stephen Yale-Loehr reports:

Paul: Thanks to the excellent work of our law students, our Cornell asylum clinic received three BIA remands this spring.  A short summary of each case follows.  A longer summary of each case is attached, as well as redacted versions of the BIA’s decisions. If anyone wants redacted copies of our briefs, have them contact me directly.

 

Please mention on Immigration Courtside.  Thanks, Steve

 

1: IES is a citizen of Mexico and a former gang member.  The immigration judge (IJ) denied withholding and CAT relief, holding that his conviction in California was a particularly serious crime and that our client did not meet the requirements for CAT relief. For the particularly serious crime argument, our brief argued that the IJ improperly analyzed IES’ offense, ignored credible evidence that the drugs were for personal use, and relied on boilerplate sentencing documents instead. As a result, the IJ failed to analyze IES’s motivation and intent at the time of the offense. We used case law where crimes like sexual contact with a minor (Afridi v. Gonzalez) and strangulation (Flores-Vega v. Barr) were remanded because the facts and circumstances of the offense had not been considered.

 

For our CAT argument, we focused on 6 IJ errors: 1) the IJ did not consider that his prolonged mental pain would cause future torture (we had psychological evaluation reports and decided to use them for this argument). This is an underutilized argument in CAT claims, so there isn’t much case law. We used the interpretation from an OLC opinion on prolonged mental harm to bolster this argument. 2) The IJ did not consider future torture from gangs and cartels despite an expert saying this risk was at 80%. 3) The IJ did not consider country conditions and did not admit 400 pages into evidence. 4) The IJ mischaracterized his attempts to flee cartels 8 times as “relocation.” 5) The IJ did not think there was police acquiescence even though the police, the local Attorney General, and the judicial police ignored IES’ complaints. 6) The IJ did not aggregate IES’ risk of torture. The BIA remanded.

 

2: LRG is a citizen of El Salvador who fled to the US in 1989.  While in the US he joined the MS-13 gang. He is in U.S. prison for a criminal conviction. The IJ denied withholding and CAT relief. Our client’s info was part of the November 2022 ICE data leak, but the IJ did not address that concern.

 

Our brief argued that our client is more likely than not to face torture if removed to El Salvador. We posited several theories under which our client is likely to be tortured: 1) by the Salvadoran government, especially if our client is incarcerated there; 2) by Salvadoran gangs, in or out of prison, with the acquiescence of the Salvadoran government; and/or 3) by Salvadoran anti-gang death squads, with the participation or acquiescence of the Salvadoran government. We argued that our client’s identifying characteristics, including his gang tattoos and criminal history, would subject him to targeting and torture by any of these groups. We also argued that the IJ insufficiently aggregated our client’s risk of torture in El Salvador and that the IJ erred by failing to consider the impact of the ICE data leak on our client.  Finally, we argued that the IJ afforded insufficient weight to the evidence offered by our client. The IJ admitted Dr. Patrick McNamara’s universal expert declaration only as background evidence, rather than for his expert opinions. The BIA remanded.

 

3: REC is a citizen of El Salvador who fled to the US in 2022.  REC was not a gang member, but his brother was, and was killed by the police.  REC’s family filed a lawsuit against the police for murdering REC’s brother, and the police retaliated against REC.  The IJ denied asylum, withholding, and CAT relief.

 

On asylum and withholding, we argued that the IJ erred by ignoring the Salvadoran government as a persecutor of REC and by failing to assess the proper particular social group that REC had proposed, based on his membership in his family. On CAT, we argued that the IJ effectively ignored part of REC’s claim by failing to analyze whether the MS gang would be more likely than not to torture him. We further argued that the IJ’s analysis about the Salvadoran government as a torturer of REC was flawed because the IJ herself found that Salvadoran officials “misused their power” when they beat him. We argued that the IJ also erred because she did not aggregate all potential sources of torture, including the government and the MS gang. The BIA remanded.

Stephen Yale-Loehr

Professor of Immigration Law Practice, Cornell Law School

Faculty Director, Immigration Law and Policy Program

Faculty Fellow, Migrations Initiative

Co-director, Asylum Appeals Clinic

Co-Author, Immigration Law & Procedure Treatise

Of Counsel, Miller Mayer

Phone: 607-379-9707

e-mail: SWY1@cornell.edu

Twitter: @syaleloehr

Check out my Green Card Stories book:

http://www.greencardstories.com.

 

See more of my books at amazon.com/author/stephenyaleloehr

You can access my papers on SSRN at: http://ssrn.com/author=109503

Cornell 1 Cornell 2 Cornell 3 Cornell 4 Cornell 5 Cornell 6

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Get all the details in the six attachments above!

Thanks, Steve! And, congrats and “hats way off” (as my friend Dan Kowalski would say) to the clinic students involved! 

Interesting to contrast the careful work of the clinic with the sloppy, result-oriented work of the IJs in these cases. 

🇺🇸 Due Process Forever!

PWS

07-29-23

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants!  ☠️ — Marvin A.G. v. Garland (published)!

Four Horsemen
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:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“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.”

[Hats off to Eric Suarez!]

Eric Suarez
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, and  widely-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.

Jeffrey S. Chase
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:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

 

 

🗽🧑🏻‍⚖️ BIA APPELLATE JUDGES LIEBOWITZ, BROWN, MANUEL WITH STRONG REVERSAL OF HIGH-DENYING IJ IN FIFTH — Nexis, PSG — Roberto Blum Reports!  — “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,” Says Says Brooklyn Law Associate Dean Stacey Caplow!

 

Roberto writes:

Hello Judge,

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.

Best,

DPF!

RB 

pastedGraphic.png

Here’s the panel decision:

BIA APPEAL REMAND (Redacted)

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

Thanks, Roberto.

As Roberto says:

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
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.

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/the-pathos-of-patel-v-garland

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!

🇺🇸 Due Process Forever!

PWS

05-31-22

☠️⚰️🏴‍☠️HAITI IS NOT “SAFE,” & THE PERVASIVE GANG VIOLENCE APPEARS TO BE POLITICALLY MOTIVATED! — “They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs. . . . It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption!” — So, Why Are Biden, Harris, Mayorkas, & Garland Illegally Returning Refugees There Without Hearing Their Asylum Claims?  👎🏽🤮

 

 

Catherine Porter
Catherine Porter
Toronto Bureau Chief
NY Times
PHOTO: NY Times website
Natalie Kitroeff
Natalie Kitroeff
Foreign Correspondent
NY Times
PHOTO: NY Times

https://www.nytimes.com/2021/10/21/world/americas/haiti-gangs-kidnapping.html?referringSource=articleShare

By Catherine Porter and Natalie Kitroeff

They raped women, burned homes and killed dozens of people, including children, chopping up their bodies with machetes and throwing their remains to pigs.The gruesome massacre three years ago, considered the worst in Haiti in decades, was more than the work of rival gangs fighting over territory. It was organized by senior Haitian officials, who provided weapons and vehicles to gang members to punish people in a poor area protesting government corruption, the U.S. Treasury Department announced last year.

Since then, Haiti’s gang members have grown so strong that they rule swaths of the country. The most notorious of them, a former police officer named Jimmy Cherizier, known as Barbecue, fashions himself as a political leader, holding news conferences, leading marches and, this week, even parading around as a replacement for the prime minister in the violent capital.

. . . .

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

Read the rest of this gruesome, yet telling, report at the link.

Over 21 years on the Immigration Bench as both a trial and appellate judge, I adjudicated thousands of asylum claims. The circumstances described on this article undoubtedly would give rise to many potentially valid asylum and withholding claims, based on actual or implied political opinion and/or family or gender-based “particular social groups” and Convention Against Torture (“CAT”) grants based on torture with government acquiescence or actual connivance!

So, how do Biden, Harris, Mayorkas, and Garland, who to my knowledge have never represented an asylum applicant or adjudicated an individual asylum case among them, “get away” with simply suspending the rule of law, under false pretenses, for those entitled to seek asylum?

Stephen Miller must be on “Cloud Nine” as Biden & Co. carry out his White Nationalist plans to eradicate asylum, particularly when it protects women and people of color! This is even as Miller and his neo-Nazi cohorts (a/k/a “America First Legal”) are gearing up to sue the Biden Administration to block every measure that might aid immigrants, particularly those of color.

Stephen Miller Monster
He’s delighted with Biden’s abuse of  asylum seekers of color! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

By contrast with Miller’s delight, human rights NGOs have “had it” with the Biden Administration’s grotesque anti-asylum agenda! See, e.g.,https://m.dailykos.com/stories/2021/10/18/2058777/–We-refuse-to-be-complicit-Advocates-leave-Biden-admin-meeting-in-protest-of-Remain-in-Mexico-plan?detail=emaildkre

Haiti Corpses
NGOs don’t share the Biden Administration’s vision of what a “safe” Haiti looks like. Neither do kidnapped American missionaries!
PHOTO: Marcelo Casal, Jr., Creative Commons License

Angering and alienating your potential allies and supporters to aid the far-right program of your enemies who are determined to do whatever it takes to undermine, discredit, and destroy your Presidency! Obviously, I’m no political expert. But, sure sounds like an incredibly stupid, “designed to fail” strategy to me!

🇺🇸Due Process Forever!

PWS

1-23-21

SEN. DIANNE FEINSTEIN (D-CA) JOINS CALL FOR GARLAND TO QUICKLY REVERSE TRUMP-ERA RACIST, MISOGYNIST, INCORRECT PRECEDENTS AIMED AT PUNISHING WOMEN REFUGEES FROM THE NORTHERN TRIANGLE! 

 

Senator Dianne Feinstein
Senator Dianne Feinstein (D-CA)
Official Portrait

https://www.feinstein.senate.gov/public/index.cfm/press-releases?id=D36F6BAC-ADE5-4173-BE85-8CE83CD6FE09

Feinstein to Garland: Reverse Trump-Era Asylum Eligibility Rules

May 14 2021

Washington—Senator Dianne Feinstein (D-Calif.) called on Attorney General Merrick Garland to review decisions made by the Trump administration restricting asylum eligibility for victims of domestic and gang violence.

The Refugee Act of 1980 extended asylum protections to foreign nationals who fear to return to their home countries due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Trump administration rejected established precedent by restricting asylum eligibility for victims of gang and domestic violence.

“As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” wrote Senator Feinstein.

“I ask that you … consider vacating … those decisions and bring our asylum system back into alignment with the law and the values informing it,” Feinstein added.

Full text of the letter is available here and below:

May 13, 2021

The Honorable Merrick B. Garland

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Attorney General Garland:

I write regarding two decisions issued by Attorneys General Session and Barr during the Trump administration in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), as well as other opinions based on these decisions. Enclosed are copies of letters I sent the Attorneys General on these decisions, which in my opinion, ignored precedent by eliminating asylum eligibility for many victims of domestic and gang violence. I am sure you share my belief that all who Congress made eligible for asylum should receive the law’s protections.

As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution.

The Refugee Act of 1980 extends asylum to foreign nationals who are unwilling or unable to return their country of origin due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). The Trump Administration rejected established precedent when it concluded that victims of domestic or gang violence ignored by their home countries could not claim the protections of asylum.

Accordingly, I ask that you, as part of your review of “precedential decisions … governing the adjudication of asylum claims” directed by President Biden in Executive Order No. 14,010, consider vacating Matter of A-B-, Matter of L-E-A-, and subsequent opinions based on those decisions and bring our asylum system back into alignment with the law and the values informing it. This approach has been used before to provide timely relief in anticipation of formal rulemaking.

Thank you for your prompt attention to this matter.

Sincerely,

Dianne Feinstein

United States Senator

###

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

It’s a very modest, straightforward, well-justified, and long overdue “ask” by Senator Feinstein and others.

It’s simply shocking that Garland continues to dither and “swallow the whistle” on “Basic Day 1 Immigration/Human Rights Stuff” while abused refugee women and their children continue to suffer and die on his watch. Meanwhile, their long suffering pro bono and “low bono” attorneys tear their hair out at Garland’s lack of attention to the horrible human rights, due process disaster in his Immigration “Courts.”

Woman Tortured
“She struggled madly in the torturing Ray” — Despite outrage from progressives and women’s rights advocates, AG Garland has shown no concern for the suffering of women because of bad Trump-era precedents that he has allowed to remain in effect as well as his continuation of Trump’s lawless refusal to enforce asylum laws at border!
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

n

🇺🇸🗽⚖️Due Process Forever!

PWS

05-19-21

🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!

Grundoon
Grundoon
From Walt Kelly’s “Pogo”
SOURCE: Pininterest

Grundoon: A diapered baby groundhog (or “woodchunk” in swamp-speak). An infant toddler, Grundoon speaks only gibberish, represented by strings of random consonants like “Bzfgt”, “ktpv”, “mnpx”, “gpss”, “twzkd”, or “znp”. Eventually, Grundoon learns to say two things: “Bye” and “Bye-bye”. He also has a baby sister, whose full name is Li’l Honey Bunny Ducky Downy Sweetie Chicken Pie Li’l Everlovin’ Jelly Bean. [From the Walt Kelly comic strip “Pogo.”]

https://en.wikipedia.org/wiki/Pogo_(comic_strip)

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2021/4/29/the-dojs-contradictions

Contact

The DOJ’s Contradictions

In a recent blog post, I discussed the difficulty in establishing asylum based on a political opinion expressed against MS-13.  In the specific case discussed, the Board of Immigration Appeals reversed the Immigration Judge’s finding that the asylum-seeker had expressed a political opinion to MS-13 members.1  In reversing the Immigration Judge, the BIA specifically stated as to MS-13 that “the gangs are criminal organizations, and not political or governmental organizations and gang activities are not political in nature.”  The BIA has repeatedly expressed this same view (using this or similar boilerplate language) in its decisions denying asylum.  In the particular case discussed in my blog post, a split panel of the Second Circuit Court of Appeals could not find enough evidence of record to compel the majority to overturn the BIA’s conclusion.

The BIA is of course a part of the U.S. Department of Justice; its judges are appointed by and employed by the Attorney General.  Former Deputy Attorney General Rod Rosenstein was one of the Department officials to make the following point to a class of new Immigration Judges in March 2019:

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.2

The clear message being conveyed is “Don’t get any big ideas of judicial independence and neutrality; you work for ‘Team Justice,’ and you will behave accordingly.”  Am I alone in thinking that the motto cited by Rosenstein, “when you accept a privilege, you incur an obligation,” here comes across as a boss reminding new employees where their loyalties lie rather than as a commitment to truth and justice?

As wrong as this message is when conveyed to judges who are supposed to enjoy the independence and neutrality to rule against the Department of Justice and the Attorney General when the facts and law compel such an outcome, let’s examine this view for the consistency of its application as to all DOJ employees.  Presumably, the Board’s official stance that MS-13 is not a political organization and that its activities are criminal and not political in nature enjoys the Department’s seal of approval.  In fact, other Department of Justice attorneys, working for the Office of Immigration Litigation, defend that view when the BIA”s decisions are reviewed on appeal by the Circuit Courts.  I’m not aware of any Attorney General action to certify a BIA decision expressing this view in order to correct the Board’s position on this issue, or even to remand to the Board for further consideration of its position in light of other conflicting views within the Department.

Regarding such conflicting views, I was recently made aware of a criminal indictment drafted by the U.S. Attorneys’ Office in the Eastern District of New York.3  The indictment was filed in December, 2020, while the Trump Administration was still in office.  The opening paragraph of the indictment states that MS-13 is a transnational criminal organization engaged in terrorist activity, and that its members use violence “in order to obtain concessions from the government of El Salvador, achieve political goals and retaliate for government actions against MS-13’s members and leaders.” (emphasis added).

The indictment contains a specific section titled “Political Influence in El Salvador.”  The indictment states that a unit of MS-13, the Ranfla Nacional, “gained political influence as a result of the violence and intimidation MS-13 exerted on the government and population of El Salvador.”  It continued that the organization exercised leverage on the Salvadoran government through its control on the level of violence.  The indictment states that in 2012, MS-13 exercised its leverage to negotiate a truce with the ruling FMLN party and its rival 18th Street “to reduce homicides in El Salvador in return for improved prison conditions, benefits and money.”  According to the indictment, MS-13 also negotiated a similar agreement with the rival ARENA party, promising to deliver votes in return for benefits.  The indictment states that over time, “the Ranfla Nacional continued to negotiate with political parties in El Salvador and use its control of the level of violence to influence the actions of the government in El Salvador.”

The indictment also contains a section explaining the purpose of the Ranfla Nacional.  The second specific goal listed is: “Influencing the actions of governments in El Salvador and elsewhere to implement policies favorable to MS-13.”

The attorneys who made the above claims in an indictment filed in Federal District Court are also employees of the U.S. Department of Justice.  They are also members of the executive branch, following lawful instructions from the Attorney General, and sharing a duty to enforce the law.   In the Second Circuit case I recently discussed, other Department of Justice attorneys in their brief to the court defended the Board’s decision by depicting MS-13 as “an institution that is entirely non-governmental – that is…a group of criminals who, in fact, reject the rules set out by the government.”  Noticeably absent from the same brief was any mention that this “rejection of the rules set out by government” includes strategies to pressure said government into undertaking specific actions, as well as its entering into negotiations and ultimately agreements with political parties, the terms of which include MS-13’s delivering votes in return for the parties’ commitment to enacting beneficial policies.

So how can it be that attorneys in one office of the Department of Justice argue that MS-13 as an organization is engaged in exerting political influence to achieve its political goals, and at the same time, another group of attorneys within the same Department of Justice can sign orders sending victims of the same MS-13 to their death by employing a boilerplate sentence that MS-13 is not a political organization and its activities are not political in nature?  And that the decisions of that latter group are then defended by a third group of Department attorneys on appeal who make no mention of the conflicting arguments?  Let’s remember that, according to Rosenstein, these attorneys were taught from day one that their duties as Department of Justice employees include gathering the facts and seeking the truth.

In 1997, a very different BIA wrote the following in a decision that, although still binding as precedent, seems long forgotten:

immigration enforcement obligations do not consist only of initiating and conducting prompt proceedings that lead to removals at any cost. Rather, as has been said, the government wins when justice is done. In that regard, the handbook for trial attorneys states that “[t]he respondent should be aided in obtaining any procedural rights or benefits required by the statute, regulation and controlling court decision, of the requirements of fairness.” Handbook for Trial Attorneys § 1.3 (1964). See generally Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 48 (D.C. Cir. 1992)(finding astonishing that counsel for a federal administrative agency denied that the A.B.A. Code of Professional Responsibility holds government lawyers to a higher standard and has obligations that “might sometimes trump the desire to pound an opponent into submission”); Reid v. INS, 949 F.2d 287 (9th Cir. 1991)(noting that government counsel has an interest only in the law being observed, not in victory or defeat).4

This matter deserves the immediate attention of Attorney General Merrick Garland.  The ability of asylum seekers to receive a fair review of their claims based on accurate information is a matter of life and death.  At this early stage of the Biden Administration, it is critical that the Department send a clear message that the “obligation” mentioned in its motto is to serve an ideal of justice that is independent of the particular politics of those temporally in charge.

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Notes:

  1. Zelaya-Moreno v. Wilkinson, No. 17-2284, ___ F.3d ___ (2d Cir., Feb. 26, 2021).
  2. https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly.
  3. E.D.N.Y. Docket No.: 20-CR-577 (JFB).  The Department of Justice’s Press Release can be found here: https://www.justice.gov/usao-edny/pr/ms-13-s-highest-ranking-leaders-charged-terrorism-offenses-united-states.
  4. Matter of S-M-J-, 21 I&N Dec. 722, 727 (BIA 1997).

APRIL 29, 2021

Reprinted by permission.

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

As most outside the nativist world know, the BIA’s position that Northern Triangle gangs aren’t political in nature and action is absurd! For Pete’s sake, these guys negotiate “peace treaties”  with governments, control large swaths of territory, manipulate “public death rates” for political gain, aid or punish political candidates and police, collect taxes, control jobs, and have economic policies. Sure sounds like a quasi-governmental, clearly political entity to me. Somewhere, there is a dissent of mine in an old published CAT case saying approximately that.

At least at one point, gangs in El Salvador controlled more jobs than did the Salvadoran Government! No competent, unbiased group of adjudicators (not to mention supposed “experts”) could have reached the BIA’s ridiculous, clearly politicized conclusions!

Sadly, to date, Judge Garland has followed in the footsteps of his dilatory Dem predecessors by destroying lives, promoting injustice, and blowing the Dems’ best chance to build a progressive, due process oriented, human rights advancing judiciary that also would help resolve America’s failure to come to grips with the 1951 U.N. Refugee Convention and its key role in our legal immigration system as well as being a prerequisite to achieving racial justice in America.

Supposedly, these are the goals of the Biden Administration. Unfortunately, Garland, Monaco, and Gupta haven’t gotten the message, although it has been “delivered” time after time by numerous experts and advocates!

A few historical notes:

  • I was on the en banc BIA that decided Matter of S-M-J-, cited by Jeffrey. It was written by Judge Michael J. Heilman, a fellow Wisconsinite who once had worked for me at the “Legacy INS” General Counsel, following service as a State Department consular officer. That case “originated” on a three-member panel of Heilman, the late Judge Lauri Steven Filppu, and me. It reflects the “government wins when justice is done” message that I had incorporated into INS attorney training years earlier, as well as fealty to UN Handbook standards encouraged by the Supremes in INS v. Cardoza-Fonseca, and the “best practices” that bygone BIA was consciously and aggressively advancing.
  • Former DAG Rod Rosenstein was once a respected career prosecutor who served Administrations of both parties. Then, he “sold out” to the Trump Administration and its neo-fascists. Although that probably should have ended his legal career, he’s currently enjoying life in “big law” while those victims harmed and wronged by the illegal and unethical policies (or, in some cases their survivors) he furthered continue to suffer.

Radical progressive due process reforms @ EOIR, starting with wholesale personnel changes and revocation of restrictionist, racist, misogynist policies and practices is long overdue. Nearly two months into his tenure Judge Garland has yet to demonstrate awareness of the need for immediate, decisive action. Meanwhile the bodies continue to pile up and the “adverse decisions” from the Article IIIs bearing his name and tarnishing his reputation continue to roll in! 

Actually, Judge, each wrong decision from the BIA represents a human life ruined, often irrevocably. Is that the type of “impact” on American justice that you intend to leave as your “legacy?”

 

Tower of Babel
EOIR HQ, Falls Church, VA (a/k/a “The Tower of Babel”)
By Pieter Bruegel The Elder
Public Domain

🇺🇸⚖️🗽🧑🏽‍⚖️👨🏻‍⚖️Due Process Forever!

PWS

05-01-21

☠️🤮⚰️🏴‍☠️ CONTINUING CAT-ASTROPHE  @ GARLAND’S EOIR: Latest Circuit Rebukes Show EOIR’s Deep-Seated Incompetence In CAT Adjudication Involving Common Situations — “[A]ny reasonable adjudicator would be compelled to conclude that they suffice to establish a ‘reasonable possibility’ that he may be subjected to torture with government acquiescence, as that term has been defined in the relevant regulation.” — EOIR & DHS Were Dispensing Injustice, Ignoring Circuit Precedents, & Mis-Construing Regulations To Deny CAT Even Before Biden-Mayorkas-Garland Continued Illegal Suspension Of Rule Of Law @ Border! PLUS — Answers To Last Week’s EOIR Pop Quiz!

  1. 9th Cir. Shows How IJ Screwed Up “Reasonable Fear” Analysis Of Honduran CAT Claim!

Alvarado-Herrera v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/18-70191.pdf

From court staff summary:

The panel held that substantial evidence did not support the immigration judge’s determination that Alvarado- Herrera failed to establish a reasonable fear of torture with the consent or acquiescence of a public official, given Alvarado-Herrera’s specific assertions of police complicity in the 18th Street gang’s violent acts. Noting that the asylum officer refused to credit Alvarado-Herrera’s assertions, which were based in part on media reports and common knowledge among Hondurans that it is well known that the police work for the gangs, that the police are allied with the 18th Street gang in particular, and that the police not only allow gang members to harm others but also provide information to gang members to help them find and kill people, the panel wrote that it was unclear what additional evidence the asylum officer expected Alvarado-Herrera to produce at that stage of the proceedings. The panel observed that non-citizens in reinstatement proceedings who express a fear of returning to their home country typically appear for a reasonable fear interview within a short time of their

ALVARADO-HERRERA V. GARLAND 5

apprehension by immigration authorities, and that many, like Alvarado-Herrera, are being held in detention facilities and do not have legal representation. The panel wrote that, as a result, they cannot realistically be expected to produce for the asylum officer’s review the kind of detailed country conditions evidence that would be introduced during a merits hearing before an immigration judge. The panel wrote that such a demand would be inconsistent with the purpose of a reasonable fear interview, which is simply to screen out frivolous claims for relief in as expeditious a manner as possible, and if a non-citizen provides an otherwise credible account concerning his fear of torture, his own statements can supply adequate support for claims about country conditions, at least for purposes of satisfying the ten percent threshold necessary to pass a reasonable fear screening interview. The panel remanded with instructions for the agency to provide Alvarado-Herrera a hearing before an immigration judge only as to the merits of his claim for protection under CAT.

2) 10th Cir. Says IJ Muffed Analysis Of Mexican CAT Claim!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca10-on-cat-mexico-cartels-torrez-de-lopez-v-garland

CA10 on CAT, Mexico, Cartels: Torrez de Lopez v. Garland

Torrez de Lopez v. Garland

“Maria Torres de Lopez, a native and citizen of Mexico, appeals the denial of her application for deferral of removal under the United Nations Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant the petition for review and remand for further proceedings. … [W]e are compelled to conclude it is more likely than not that El Tigre [of the Sinaloa Cartel] would be aware if Torres de Lopez is removed to Mexico, and that El Tigre and his direct associates would have both sufficient motivation and ability to locate Torres de Lopez anywhere in Mexico. But the evidence does not compel the conclusion that the Juárez or Sinaloa cartels have a sufficient institutional motivation to locate Torres de Lopez anywhere in Mexico. And the questions that remain are ones the IJ did not reach—if El Tigre or his direct associates found Torres de Lopez in Mexico, would they inflict any harm on her, would that harm be severe enough to constitute torture for CAT purposes, and would Mexican public officials instigate, consent to, or acquiesce in such harm? We may not answer those questions in the first instance and remand them to the IJ for initial consideration. … All this brings us to the fourth and fifth steps in the IJ’s framework—if El Tigre or his direct associates find Torres de Lopez, will they harm her and, if so, will the harm amount to torture? … [W]e must remand to the agency to conduct the inquiry into the fourth and fifth steps in the first instance. … We grant the petition for review and remand to the agency for further proceedings consistent with our decision.”

[Hats off to Stephen W. Spurgin!]

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

Sadly, “reasonable adjudicator” wouldn’t encompass many of those currently serving in Garland’s holdover corps of Immigration Judges and his “Millerized & Trumpitized” BIA. In particular, the horrible job done by, and the bias against due process for those seeking CAT protection shown by, Attorneys General and the BIA over the past three Administrations is absolutely disgraceful. 

Yet, it continues, unabated, today under Judge Garland! It’s basically “Jim Crow Justice” dressed up in a Sunday suit. One could almost imagine a picture of Chief Justice Roger Taney hanging in the BIA’s conference room.

Roger Taney
Roger Taney
PHOTO: Matthew Brady
Public Realm
Discredited CJ remains a hero to many Miller/Hamilton/Sessions holdovers at Garland’s DOJ because of his aggressive “Dred Scottification” of the other! One of Stephen Miller’s soul mates, this dude’s life was defined by his unyielding belief that all men aren’t created equal and that only powerful White Guys have a right to life, liberty, and the pursuit of happiness! And, that women don’t even exist before the law!

The obvious lack of competence in a “judiciary” regularly attempting to send individuals back to possible torture in violation of due process and the statute should prompt decisive corrective action from those in charge of this dysfunctional system. But, to date, it hasn’t!

Instead, what have Biden, Garland, & Mayorkas done? Continued the illegal practice of returning asylum seekers and others to possible death or torture without any process at all. Then, they have the gall to send their “flackies” out to claim that the “victims” are the “problem” for exercising their legal rights to seek protection, at a time that apparently is “politically inconvenient” for the Biden politicos to offer a system that provides that legally-required protection. 

Looks pretty “Stephen Millerish” to me, not to mention “Catch 22!” How dare you cross our border seeking due process and turn yourself in to the Border Patrol when can go to a legal port of entry, present yourself, and be immediately sent back to death with no process at all! Don’t you understand how American “justice” works? Go back to your own countries from where you were forced to flee where, if you live long enough, you can’t apply under our non-existent overseas refugee system. Is that perfectly clear? 

The Presidential election was over on Saturday, Nov. 7, 2020! Biden and Harris campaigned on a platform of immigration and human rights reforms that included ending the many illegal, inhumane, and counterproductive policies of Trump/Miller, restoring the rule of law, and re-establishing honesty and human dignity in immigration, asylum, and refugee processing. 

Yet, in the 10 weeks between the conclusion of the election and the inauguration, “Team Biden” and those who were under serious consideration for leadership positions in the thoroughly broken and dysfunctional immigration bureaucracy came up with no viable plans to “hit the ground running” with the necessary dramatic, yet achievable, changes. That’s something that I submit hundreds of “practical experts” — all of them in the Democratic camp — could have achieved had they been tapped.

It certainly was no mystery that the border and the mess at DHS, EOIR, OIL, and the SG’s Office would have to be addressed immediately — “day one or day two stuff!” Nor, would it take any deep thinking to recognize that immigration would be the overarching issue connecting social justice, racial justice, economic recovery, court reform, foreign affairs, the environment, and public health. 

Nor would it have taken much awareness to recognize that the GOP, who didn’t even bother advancing a platform or constructive ideas during the campaign, would make and “rev up” appeals to hate, fear, racism, White Nationalism, myths, fabrications, distortions, and outright lies about “security threats” (actually threats to “white culture and power”) posed by desperate individuals, many of color, merely seeking legal refuge and fair consideration under our legal system. So, getting the legal asylum and refugee systems functioning again should have been a top priority — simultaneous with COVID relief!

Additionally, there were dozens of smart journalists out there who were “on top” of the Miller/Trump White Nationalist nonsense, and had figured out how to cut through the BS and obfuscation to explain what the law and common sense requires, in understandable terms. Thus, the Biden team even had a “golden opportunity” to put together a group of “immigration/human rights/rule of law flackies” who could both educate insiders and in public run circles around the likes of Fox News, right wing radio, and magamoron White Nationalist nativists like Cruz, Cotton, Hawley, and McCarthy. All it would have taken is competence and courage — two qualities often in short supply in Dem Administrations when immigration, human rights, and due process are at stake.

Yet, nearly three months into the Administration, and a full five months after the election was decided, the Administration’s approach to this key issue can best, and most charitably, be described as “Amateur Night at the Bijou.”  

Amateur Night
During five months since the election, the Biden Administration has quickly moved to set up a chain of nationwide “recruiting centers” for the their Immigration Courts, immigration bureaucracy, refugee administration, human rights PR groups, and liaison with Hill Dems. Results have been astounding! 
PHOTO: Thomas Hawk
Creative Commons

Most seriously, the Immigration Court and the rule of law remain in shambles — with Judge Garland failing to take the necessary elementary steps to reverse the Trump/Miller DOJ’s misogynist, racially driven assault on the rule of law for asylum seekers of color. This sends an ugly shockwave of failure throughout the Biden-Harris agenda and continues to de-stabilize an already shaky American justice system. 

It also “pisses off” the Administration’s would-be friends and supporters while energizing its most vociferous enemies! Additionally, it demoralizes and disrespects those remaining at EOIR, many who have struggled though the last four years trying to hold some portions of the fort while waiting for salvation, potential allies — already on the in side — who will be necessary for the “reclamation project.”

Some have even taken the desperate step of anonymously reaching out to Courtside for help in raising consciousness about the astounding level of injustice, incompetence, and anti-immigration culture that Judge Garland is countenancing at EOIR. They just can’t wrap their heads around it!

As they have pointed out, Sessions, who once (in the distant past, before overt racism came part of the GOP platform) was deemed unfit by his own party for a Federal Judgeship because of his racist record, and his hench-people “hit the ground running” with their White Nationalist misogynistic agenda at EOIR. This was an agenda basically drafted by nativist groups. They moved rapidly and with purpose to remove, force out, disempower, isolate, and/or marginalize anyone at EOIR thought to harbor the heretical belief that asylum seekers, migrants, women of color, and their lawyers were humans or possessed any rights whatsoever. They obliterated any “best practices” — they few things that actually were working at EOIR. They also filled every vacant position with nativist toadies and hacks, packed the Immigration Courts and BIA with more “judges,” even as they were more than doubling the already huge backlog with their “Aimless Docket Reshuffling” and endless due-process- killing, yet fundamentally ineffective, enforcement nobly gimmicks.

Sessions even proudly announced his war on refugee women of color and their lawyers at am “EOIR training session” for “his judges,” drawing stunned silence from many, but also cheers from some “magamoron judges” in the audience. Somehow, over the years, indolent Article III Judges overlooked the obvious lack of ethics in Sessions’s performance as well as the crystal clear lack of Matthews v. Eldridge fundamental due process in a farcical “court” system. A “court parody” where the racist head prosecutor, who also asserted himself as the de facto head of DHS enforcement, urged “his judges” on to inflict ever more rapid and unlawful acts of desecration, dehumanization, and capricious treatment upon those they were supposed to be judging fairly and humanely.

Some of the “survivors” within EOIR expected Judge Garland, once a highly respected Court of Appeals Judge, former Supreme Court nominee, veteran of the DOJ in better times, and relatively recent descendent of immigrants, to put a quick end to the unconstitutional nonsense at EOIR, cast out the “Miller/Hamilton perps,” their many EOIR toadies, and the “go along to get alongs” who had created this disgraceful and dysfunctional mess at what was once supposed to be a “bastion of due process.” They expected Garland to bring in a team of respected “immigration/human rights/due process pros” and to elevate those in the system who had stood tall against the abuses of due process and humanity over the past four years.

Alas, those survivors quickly discovered that Garland is largely oblivious to the ongoing clown show at EOIR, the continuing human carnage it causes on a daily basis, the squandered potential to boost due process and racial justice in America, and the rapid erosion of his support and his image among those who courageously and often successfully fought the “Miller neo-Nazi plan” to dismantle the American justice system.

Vainly, they wait for Garland’s recognition of the heroic role of the National Association of Immigration Judges (“NAIJ”) in maintaining some vestiges of justice and professional training at EOIR and, most important, in publicly exposing, including to Congress, the ongoing fraud, waste and abuse of public trust carried out by the Trump/Miller kakistocracy at EOIR. They are distraught by Garland’s inexplicable failure to condemn “Billy the Bigot’s” totally outrageous actions in frivolously moving to “decertify” the NAIJ as punishment for their exposing his many illegal activities and abuses of honest government at EOIR.

They are absolutely incredulous that a “100 page study,” conducted by those having no real expertise in the Immigraton Court, would be viewed as a substitute for the immediate removal and replacement of dysfunctional personnel and a strong public commentment to root out injustice, racism, and misogyny, reject and repudiate bogus precedents, institute aggressive due process reforms, and promote true quasi-judicial independence at EOIR.

They are particularly puzzled by Garland’s permitting the conducting of idiotic clown shows — misnamed “Town Halls” — throughout the country further insulting and inflaming the long-suffering stakeholders and advertising EOIR’s continuing failure to run like a court and respect the input, expertise, and legitimate needs of those same “stakeholders.” They are baffled when there are so many great “due process role models” out there who could and should be sending the exact opposite message — that “the clown show is over” and the pros are now in charge of restoring justice and sanity @ EOIR!

They can’t fathom how anyone, let alone a former Article III Judge, could believe that judicial dockets across America can be micromanaged by non-judicial bureaucrats in Falls Church and DC who have never successfully managed a docket in their lives, know little about the harsh realities of today’s dysfunctional  Immigration “Courts,” and who operate in blissful studied ignorance of the many localized factors that go into successful docket management at all other functioning court systems in America.

And, although it might be below Judge Garland’s “radar screen,” human lives are actually being destroyed and human suffering multiplied while he and his “spear carriers” diddle over how to fix EOIR! To quote some of the Hill Dems yesterday, “This is stupid!”

(Duh, who outside the Biden camp would have failed to predict that yesterday’s idiotic “two-step” on the refugee cap would go over worse than a lead balloon? The Biden immigration “advisors” might think that refugee lives don’t matter, but many Dems living in the real world and on the Hill don’t see it that way!)

Garland has also failed to place competent judicial leadership in charge of EOIR and the BIA and to make it clear that institutional disdain for due process, best practices, and human dignity will no longer be the ”order of the day” in America’s largest, and perhaps most important, Federal Court System. A rather atrocious start for an Administration struggling to put the Trump-Miller scofflaw White Nationalist agenda behind them! 

Just how does one “pull that off” with a bunch of Miller cronies, and Sessions/Barr nativist judges (many incompetent to fairly apply and interpret basic asylum, immigration, and due process laws) still dominating the scene in America’s most dysfunctional and dehumanizing “judiciary.” While Judge Garland might have forgotten this during his “above the fray” tenure in the “judicial ivory tower,” leadership, priorities, and symbolism are really important in government! Right now, they are all headed 100 mph in the wrong direction at the DOJ — for no obvious reason!

Garland, supposedly the “people’s” chief lawyer, has also failed to push Mayorkas and the White House for a restoration of the legal asylum system at the border! In 100 days, Mayorkas and Garland could have supplemented the Asylum Officer corps with retirees and private sector refugee/asylum experts and gotten them down to the border to do honest, efficient credible fear screening. Obviously, reopening timely legal screening at legal ports of entry would reduce the incentives for crossing the border elsewhere.

They also could have energized human rights and pro bono NGOs to represent those “screened in.” Garland could have gotten both sitting and retired Immigration Judges with strong records of granting asylum (check TRAC, it’s all set out in plain view) working on these cases, while clearing the dockets of hundreds of thousands of backlogged cases going nowhere in any event. See Greg Chen & Professor Peter Moskowitz.

Garland could have appointed competent Appellate (or even “Appellatte”) Immigration Judges at the BIA (acting, if necessary until final selections can be made) to issue positive precedents on asylum, CAT, withholding, cancellation of removal, adjustment of status, administrative closure, and docket management to stop the endless nonsense and idiotic, justice-killing, enforcement gimmicks and “Aimless Docket Reshuffling” imposed by the Trump/Miller crowd of malicious incompetents.

Secretary Mayorkas and Secretary Becerra could have invoked and energized the now largely dormant refugee resettlement apparatus in the private/NGO sectors to temporarily resettle arriving children and families in a humane, orderly and efficient manner.

Yesterday’s stunning  “unforced error” on refugee processing is just the latest example that Biden’s advisors don’t “get” immigration and need to be replaced with experts; experts who understand the fundamentals, believe in the generous, humane, restore the rule of law platform he and Harris ran on, and can explain it in clear, compelling terms. The “right folks” are “out there” — that’s the problem, “out there” instead of inside solving problems and moving the train in the right direction.

It’s not rocket science:

  • Immigration is good. 98% of Americans are immigrants or descended from immigrants. That immigration has produced some scoundrels, insurrectionists, liars, and ingrates like the Trumps, Cruzes, Cottons, McCarthys, Taylor-Greenes, Millers, Kobachs, etc., of our world doesn’t change that overall equation;
  • Refugees and asylees (refugees granted status at our border or in the US when our legal system is functioning — it isn’t now) are essential components of legal immigration;
  • We need and must have significantly more legal immigration, particularly if we want to maintain a robust economy and a dynamic, innovative society, in light of population losses from the pandemic and low birth rates;
  • Applying the Refugee Act of 1980 in a fair, generous, humane manner that furthers due process of law isn’t “an option” for debate or a matter for more “studies” — there are more than enough of the latter our there anyway. The problem is that the folks who did them and can solve the problems remain on the outside rather than running EOIR! It’s a legal and moral imperative! Garland’s function isn’t coming up with more failed, illegal gimmicks to avoid granting asylum or aid misguided law enforcement, make a few cosmetic changes to appease advocates, or engage in more boneheaded “revolution by evolution” (see Obama Administration) approaches at EOIR! It’s getting our legal asylum system functioning again at EOIR and also at USCIS in a robust, competent manner with real, independent, expert judges and professional judicial administrations who can do the job;
  • That also means publicly and virtuously standing up for the legal and Constitutional rights of the most vulnerable among us — per MLK Jr. — and having the guts and presence to “take it to” magamorons like Miller, Cruz, Cotton, McCarthy, and other GOP White Nationalist hate mongers who are destroying our nation and poisoning the well of our democracy with their xenophobic myths and “solutions” that actally are “crimes against humanity!” When in power, those folks had no problem publicly advancing and even touting their racist lies and ethnic slurs, as they continue to do! Why is Garland “swallowing the whistle” on rooting out and condemning institutionalized racism, misogyny, dehumanization of the other, incompetence, and scofflaw behavior @ EOIR?

Obviously, those advisors who told Biden to release the “Miller-level” refugee cap yesterday believed in neither the Biden election platform nor the positives of robust legal immigration. They also lacked the knowledge and self-confidence to “sell” an honest, realistic, humane human rights and immigration agenda that is the key to our national future. They also were woefully ignorant about and totally “misplayed” the strong political and public support for refugees and the critical role that immigration and human rights advocates play within the Democratic Party.

Currently, the inability of the Biden Administration to bring competence, positivity, the rule of law, and creative thinking to their immigration/human rights program is weighing down and “sucking much of their air” from the many things they are getting right.

It’s past time to end “Amateur Night at the Bijou” and bring in the pros. Before it’s too late!

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever!  Judge Garland, End the Disgraceful EOIR Clown Show, Now🤡🦹🏿‍♂️🏴‍☠️!

PWS

04-17-21

ANSWERS TO LAST WEEK’S “POP QUIZ”

https://immigrationcourtside.com/2021/04/11/amateur-night-the-bijou-sponsored-by-judge-merrick-b-garland-attorney-general-of-the-u-s-an-insiders-assessment-of-latest-eoir/

1) 0

2) 0

3) 0

4) No (none exists)

5) a & b (a, b, & e also acceptable)

6) No, they can’t. Casey would be right home with the gang at EOIR HQ and also @ “Main ‘Justice.’”

If you got 100%, congratulations, you have won the “Amateur Night at the Bijou” competition. Although that makes you over-qualified to become an “Appellatte Immigration Judge” you will receive a free Starbucks coupon redeemable for a latte of your choice, to be issued only tomorrow!

☠️YET ANOTHER DEADLY,  ⚰️ RIDICULOUS 🤡 EOIR MELTDOWN 🤮 OUTED! — Conservative 5th Circuit Excoriates BIA & Immigration Judge For Litany Of Errors In 38-Page Smackdown — Another Wrongful Denial Of Asylum To Honduran Exhausts Patience Of Even Normally Pro-Gov. Circuit Court!

Star Chamber Justice
“Justice”
Star Chamber
Style
Four Horsemen
BIA Asylum Panel In Action
Albrecht Dürer, Public domain, via Wikimedia Commons
EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.ca5.uscourts.gov/opinions/unpub/18/18-60251.0.pdf

Morales Lopez v. Garland, 5th Cir., 03-19-21, unpublished

PANEL: Southwick, Graves, and Engelhardt, Circuit Judges

OPINION BY: James E. Graves, Jr., Circuit Judge

KEY QUOTE:  

Morales Lopez argues that the IJ improperly determined that she did not make a sufficient showing of past persecution and a well-founded fear of future persecution. Regarding past persecution, Morales Lopez argues that the IJ erroneously (1) required each incident of harm to rise to the level of persecution, (2) failed to consider all relevant incidents of harm, (3) required a showing of physical harm, and (4) failed to consider significant liberty deprivations suffered by Morales Lopez and her children. Morales Lopez further argues that (5) the substantial evidence compels a finding of past

10

Case: 18-60251 Document: 00515788451 Page: 11 Date Filed: 03/19/2021

No. 18-60251

persecution and (6) the IJ erred by failing to consider Morales Lopez’s psychological harm.

Regarding a well-founded fear of future persecution, Morales Lopez argues that the IJ erroneously (1) applied a preponderance-of-the-evidence standard instead of a reasonable-possibility standard; (2) failed to evaluate Morales Lopez’s fear of future persecution using the four-part test set forth in In re Mogharrabi; (3) conflated the past-persecution and well-founded-fear- of-future persecution analyses, (4) required Morales Lopez to offer direct proof of her persecutors’ motives, and (5) mischaracterized Ungar’s testimony. Morales Lopez further argues that (6) the substantial evidence compels a finding of a well-founded fear of future persecution.

Although we neither agree with nor reach all of Morales Lopez’s arguments, we agree with her overarching point: the IJ and the BIA improperly determined that Morales Lopez did not make a sufficient showing of past persecution and a well-founded fear of future persecution. We address Morales Lopez’s arguments in turn.

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

Judge James E. Graves, Jr.
Hon. James E. Graves, Jr.
U.S. Circuit Judge
Fifth Circuit
PHOTO: Wikipedia

Too bad this is unpublished. Once again, a Circuit Court has to provide the detailed analysis required by due process after the supposedly “expert” BIA commits error after error!

When they get below the “caption line” in an opinion, things go south fast for EOIR judges. I’d attribute that to a deadly combination of poor judicial selection, defective training, a “culture of prejudgement and denial,” large-scale overuse and misuse of the woefully inadequate and outdated “contemporaneous oral decision” format (not used by any other “court” for decisions of this importance and complexity), “haste makes waste” gimmicks, absurd “quotas,” inane “performance ratings,” constant political interference with decision-making, disastrously incompetent unprofessional docket management, and maliciously incompetent “leadership” from the DOJ. It’s an ungodly and inexcusable mess.

Sadly, my grim description doesn’t begin to capture just how embarrassingly unjust, unfair, dysfunctional, and just plain terrible EOIR’s “killer clown show” 🦹🏿‍♂️🤡 is. Not to mention that it is clearly unconstitutional, and a “living  repudiation of due process” as currently constituted and operated. Put this pathetic imitation of a “court system”out of its misery before it causes any more destruction of human lives and irreparable damage to our justice system!

Judge Garland, where, oh where, are you in American justice’s hour of need? Stop this disgraceful mockery of justice, humanity, and common sense! Now!

In the meantime, as I had warned, Judge Garland’s previously sterling record as a jurist 👨🏻‍⚖️ is being tarnished daily by association with some of the worst jurisprudence out there, courtesy of America’s Star Chambers,🏴‍☠️ a/k/a “Clown Courts,” 🤡🦹🏿‍♂️ now wholly owned by HIM, and “operated” in HIS name!

🇺🇸⚖️🗽Due Process Forever! Clown Courts🤡🦹🏿‍♂️ & Star Chambers☠️🏴‍☠️⚰️, Never!

PWS

03-21-21

LATEST FROM “SIR JEFFREY” 🛡⚔️ — “Determining Political Opinion: Problems and Solutions — Jeffrey S. Chase | Opinions/Analysis on Immigration Law”

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2021/3/7/determining-political-opinion-problems-and-solutions

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Determining Political Opinion: Problems and Solutions

Regarding political opinion, the refugee law scholar Atle Grahl-Madsen famously explained that refugee protection “is designed to suit the situation of common [people], not only that of philosophers…The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.”1  A  recent decision of the U.S. Court of Appeals for the Second Circuit provides an opportunity to reflect on this premise.

In Zelaya-Moreno v. Wilkinson, a young man was targeted for recruitment by MS-13.  On two occasions, Zelaya directly announced to the gang’s members his reason for refusing to join: because gangs were bad for his hometown and country.  Both times, the gang members responded by beating him, fracturing his arm the second time.  They also threatened to kill him if he continued to refuse to join.  The questions raised are whether Zelaya’s instinctive, simply-worded response expressed a political opinion, and if so, did that opinion form part of the reason for the beatings and threat?

The Immigration Judge recognized Zelaya’s statement to the gang to be a political opinion for asylum purposes.  However, the IJ wasn’t persuaded from the record that Zelaya’s opinion was why the gang beat him.  As expressed by the IJ, the beatings were caused by “Zelaya’s refusal to join the gang, irrespective of the reasons.”  It doesn’t seem that the IJ considered whether the gang members imputed a political opinion to the act of refusal per se.

On appeal, the BIA took a far more extreme position, stating  that because gangs are not political organizations and their activities are not political in nature, “expressing an opinion against their group is not expressing a political opinion.”  This happens to be a position that EOIR and DHS (in defiance of much circuit case law and expert opinion to the contrary) later sought to codify in regulations that fortunately remain enjoined at present.

The Second Circuit in Zelaya-Moreno rejected the Board’s narrow view of political opinion.  In fact, the court only last year, in its decision in Hernandez-Chacon v. Barr, recognized the act of resisting rape by members of the very same gang in El Salvador as the expression of a feminist, anti-patriarchy political opinion.  Significantly, the victim in that case hadn’t stated any opinion to the gang members; it was only years later in front of the immigration judge that she gave her reason for resisting as “because I have every right to.”

As it has done in other decisions, the Second Circuit emphasized the need for a “complex and contextual factual inquiry” in political opinion determinations.  It conducted a survey of cases in which political opinion was found, and of others in which it wasn’t.  Unfortunately, the majority upheld the decision that Zelaya had not expressed a political opinion to the MS-13 members, stating that “[s]o far as the record shows, his objection to them is not rooted in any sort of disagreement with the policies they seek to impose nor any ideology they espouse.”

“So far as the record shows” is critical.  I haven’t seen the record in this case, but I believe it might serve to demonstrate that while Grahl-Madsen correctly assigned equal validity to the opinions of the commoner and the intellectual, in practice, claims brought by members of the former group often require assistance from the latter in persuading adjudicators of the political nature of their words or actions.

For example, in Hernandez-Chacon, context for the petitioner’s resistance was provided by the affidavit of a lawyer and human rights expert who was able to articulate the patriarchal gender bias in Salvadoran society from which a political opinion could be gleaned from the asylum-seeker’s act of resistance alone.  In another decision cited by the court, Alvarez-Lagos v. Barr, the Fourth Circuit was able to rely on the explanation of two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.”

In Zelaya-Moreno, the dissenting judge (in an opinion worth reading) was able to draw a political inference from the facts alone.  It seemed that the two judges in the majority required more.  But in finding the statements or actions of an applicant alone to be insufficient, is our present system of refugee protection genuinely designed to suit the situation of common people as well as philosophers?

In the view of the dissenting judge, yes.  In that judge’s words, Zelaya “sought refuge here after standing up to MS members, refusing their demands that he join them, and informing them that he did not support them and considered them a blight on his native El Salvador. Our asylum laws protect individuals like Zelaya-Moreno who face persecution for such politically courageous stands.”

But in the view of the majority, Zelaya had expressed nothing “more than the generalized statement ‘gangs are bad.’ Thus, we cannot conclude that Zelaya holds a political opinion within the meaning of the statute, and therefore that the BIA erred in concluding that he was not eligible for asylum on this ground.”   Would additional documentation providing the complex, contextual analysis the court mentioned earlier in its decision have delivered the two judges in the majority to the place already reached by their dissenting colleague?

The United Nations High Commissioner on Refugees is a good reference source on such issues.  In its Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, UNHCR stated at para. 45 that in its view, “political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.”  It continued at para. 47 that powerful gangs such as MS-13 may exercise de facto power in certain areas, and their activities  and those of certain State agents may be closely intertwined.  At para. 50, UNHCR stated that “rejecting a recruitment attempt may convey anti-gang sentiments as clearly as an opinion expressed in a more traditional political manner by, for instance, vocalizing criticism of gangs in public meetings or campaigns.”  And at para. 51, UNHCR added that “[p]olitical opinion can also be imputed to the applicant by the gang without the applicant taking any action or making a particular statement him/herself.  A refusal to give in to the demands of a gang is viewed by gangs as an act of betrayal, and gangs typically impute anti-gang sentiment to the victim whether or not s/he voices actual gang opposition.”

Had this document been included in the record, would it have been enough to persuade the majority that the BIA had erred in rejecting Zelaya’s claim that he was targeted on account of his political opinion?  If so, how many pro se asylum applicants would understand the need to supplement their claims to provide this context, or know what type of document would be sufficient, or how to find it?

The Seventh Circuit had foreseen this problem 15 years ago.  In a 2006 decision, Banks v. Gonzales, the court opined that Immigration Court needs its own country experts, who would operate much as vocational experts do in disability hearings before the Social Security Administration’s judges.  In my opinion, an alternative approach would be for EOIR to follow the example of the Immigration and Refugee Board of Canada, which maintains National Documentation Packages that are referenced in all cases by adjudicators of refugee claims.

During my time in government, I oversaw the creation of country condition pages on EOIR’s Virtual Law Library, which were built, and continue to be updated, by EOIR’s Law Library staff.  However, EOIR did not see fit to make its contents part of the records of hearing in asylum cases.  It is for this reason that UNHCR’s Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador, which contains much of the same language as the Guidance Note quoted above, and which expresses the specific conclusion that “persons perceived by a gang as contravening its rules or resisting its authority may be in need of international refugee protection on the grounds of their (imputed) political opinion,”2 is found on EOIR’s own website on the country page for “El Salvador,” yet wasn’t even considered in Zelaya-Moreno.

Considering the growing number of pro se applicants, the lack of legal resources available to those held in remote detention facilities, and the short time frame to prepare for hearings in certain categories of cases, I can’t see why the EOIR country pages should not be made part of the hearing record here as in Canada.  It’s possible that such a policy would have led to a different result in Zelaya.

Furthermore, the BIA hears plenty of cases involving expert opinions supporting the conclusion that those resisting gangs such as MS-13 were harmed on account of their political opinion.  Issuing precedent opinions recognizing the context that politicizes statements and actions such as Zelaya’s would result in much greater efficiency, consistency, and fairness in Immigration Court and Asylum Office adjudications.

Realistically, I harbor no illusions that the recent change in administration will bring about such enlightened changes to asylum adjudication anytime soon.  But we must still continue to argue for such change.  As the dissenting opinion in Zelaya stated in its conclusion: “[w]hile it may be too late for Zelaya-Moreno, the BIA and the Department of Justice can right this wrong for future asylum seekers. I urge them to reconsider their approach to anti-gang political opinion cases to ensure those who stand up to fearsome dangers are welcomed into this country rather than forced back to face torture and death.”  As noted above, it wouldn’t take much effort on EOIR’s part to accomplish this.

Notes:

  1. Atle Grahl-Madsen, The Status of Refugees in International Law, 228, 251 (1966) (quoted in Deborah E. Anker, The Law of Asylum in the United States (2020 Ed.) § 5:17, fn. 3.
  2. UNHCR Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador at 29-30.

Copyright 2021 Jeffrey S. Chase.  All rights reserved.

Reprinted with permission.

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

Truly wonderful, Jeffrey! One of your “best ever,” in my view! (And, they are all great, so that’s saying something.) 

Imagine what could be achieved at the BIA with real judges, experts in asylum law, thoughtful, practical analysis, intellectual leadership, and inspiration to a fairer future, rather than the current Clown Show 🤡🦹🏿‍♂️ inventing bogus ways to ”get to no!”

As Jeffrey demonstrates, we could choose to protect rather than to reject. There has always been a tendency to do the latter at the DOJ; but, under White Nationalist nativist Jeff Sessions and his successors it has gone “hog wild” — rejection has been falsely portrayed as a “duty” rather than an extremely poor choice and an abdication of moral and legal responsibility!

Today’s BIA is basically incapable of problem solving. Time and again their strained, stilted anti-immigrant, anti-due-process, pro-worst-practices interpretations not only spell doom for those coming before them, but also promote inefficiency and backlogs in an already overwhelmed system. They also send messages of disdain and disrespect for the rights and humanity of people of color that redounds throughout our struggling U.S. Legal System.

I’ll keep saying it: Whatever positive message Judge Garland and his team at DOJ intend to send about racial justice will be fatally undermined as long as “Dred Scottification” and disdain for the due process rights of migrants is the “order of the day” at the one Federal Court System the DOJ runs: The U.S. Immigration Court!  As long as EOIR is a “bad joke” the rest of Judge Garland’s reforms will fall flat!

The right judges 🧑🏽‍⚖️ at the BIA could turn this thing around! Remains to be seen if it will happen. But, it’s not rocket science. It just requires putting the right folks in charge, in place, and giving them the support and independence to engage in “creative problem solving.”

Judge Garland should be confirmed next week. And the confirmation hearings for Lisa Monaco (DAG) and Vanita Gupta (AAG) have been scheduled.

Some additional points:

  • The dissenter in the Second Circuit’s decision in Zelaya-Moreno v. Wilkinson is Judge Rosemary Pooler. Judge Pooler has had a long and distinguished career. Perhaps she would like to cap it off by becoming Chair of the BIA and leading by example;
  • Shows the importance of experts, which is probably why the BIA has gone out of its way to demean them and encourage IJs to ignore their evidence;
  • Jeffrey’s analysis supports my “Better BIA for a Better America” 🇺🇸program;
  • As Justice Sotomayor says: “It is not justice.” That’s my view on today’s EOIR!  

Due Process Forever! ⚖️🗽

PWS

03-07-21

⚖️🗽IN ANOTHER DEFEAT FOR NATIVIST ANTI-ASYUM AGENDA @ EOIR, 4TH CIR. FINDS “UNREASONABLE” BIA’S ATTEMPT TO DEFINE PSG IN MATTER OF W-G-R- SO THAT NOBODY EVER QUALIFIES! — Amaya v. Rosen

 

Juan Carlos Amaya v. Jeffrey A. Rosen

Amaya v. Rosen, 4th Cir., 01-25-21, published

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.

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

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!

🇺🇸Due Process Forever!

PWS

01-25-21

😎👍🏼🗽⚖️GOOD NEWS CORNER: Hofstra Law Clinic Wins Salvadoran Gang PSG Asylum Case! — There Are “Models For Excellent Judging” Out There! Why Do We Tolerate A White Nationalist Kakistocracy That Maliciously Undermines Them?

 

Hello,

 

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.

 

Best,

Alex Holtzman

Director of the Deportation Defense Clinic

Hofstra Law Clinic

Redacted_IJ Decision_Asylum grant for false gang alleg PSG

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

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 America  proud. 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.

Due Process Forever!

PWS

07-15-20

DHS/BIA JOINT DEPORTATION MILL CONTINUES TO CRANK OUT ERRONEOUS DENIALS — 2D CIR LATEST TO EXPOSE POTENTIAL DEATH SENTENCE W/O DUE PROCESS — Martinez de Artiga v. Barr — The Vile Legacy of Those Complicit in The Trump Regime’s Racist Human Rights Abuses Will Be Their Lasting Shame!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)
Rebecca Press Esquire
Rebecca Press, Esquire
Legal Director
UnLocal

 

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca2-on-cat-el-salvador-ms-13-martinez-de-artiga-v-barr

Dan Kowalski reports for Lexis/Nexis Immigration Community:

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Daniel M. Kowalski

10 Jun 2020

CA2 on CAT, El Salvador, MS-13: Martinez de Artiga v. Barr

Martinez, 2d Cir.

“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.”

[Hats off to Rebecca Press!]

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

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’t  privileged 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, and  Nazi-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!

PWS

06-13-20

US EXPORTS CORONAVIRUS TO GUATEMALA — Trump Regime Doubles Down on Failed Deportation Policies With Predictably Deadly Results!

Patrick J. McDonnell
Patrick J. McDonnell
Mexico City Bureau Chief
LA Times
Molly O’Toole
Molly O’Toole
Immigration Reporter
LA Times
Cindy Carcamo
Cindy Carcamo
Immigration Reporter
LA Times

 

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=b6dd1a0e-d915-4eca-b571-2200996d1e04&v=sdk

Patrick J. McDonnell, Molly O’Toole and Cindy Carcamo report for the LA Times:

MEXICO CITY — More than half the deportees flown back to Guatemala by U.S. immigration authorities have tested positive for coronavirus, the top Guatemalan health official said Tuesday.

Speaking to reporters in Guatemala City, Hugo Monroy, the minister of health, did not specify a time frame or the total number of deportees who had arrived home with infections.

But hundreds of Guatemalans have been returned in recent weeks, including 182 who arrived Monday on two flights from Texas.

Monroy said that on one flight — which he declined to identify — more than 75% of the deportees tested positive.

But he made clear this was not an isolated incident and said many deportees arrived with fevers and coughs and were immediately tested.

“We’re not just talking about one flight,” he said. “We’re talking about all the flights.”

In video later released by the government, Monroy contradicted his earlier statements and said he was referring to just one flight.

The Guatemalan Foreign Ministry said through a spokesman Tuesday that the “official” number of deportees diagnosed with COVID-19 is four, including one who arrived on one of the flights Monday.

A high number of infections among deportees would cast doubt on the official tally of how many of the more than 33,000 migrants in U.S. detention are infected. U.S. immigration officials have said that 77 have tested positive, noting that some of those may no longer be in custody.

The U.S. Department of Homeland Security did not respond to requests for comment.

. . . .

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

Read the rest of the article at the link.

For four decades, the U.S. has been deporting its problems to the poorest and most unstable countries in Central America. Gangs such as MS-13 and the 18th Street Gang actually originated in Los Angeles and were “exported” to Central America. Once there, they flourished, grew more powerful, became “de facto governments” in some areas, and instituted a reign of terror and persecution that sent hundreds of thousands of new refugees fleeing north to the United States over the years.

Now, Trump and his cronies once again believe that often illegal and irresponsible deportations to the Northern Triangle countries will allow us to escape accountability. But, it won’t. 

Irresponsibly spreading disease in poor countries where public health services are dismal at best will eventually have consequences throughout the Americas. And, we will not be immune from the long-term effects of empowering the Trump kakistocracy and its White Nationalist cronies. What goes around come around. Neither wealth nor arrogant ignorance will save us from paying a price for our lack of concern for humanity.

Due Process Forever! Malicious Incompetence Never!

PWS

04-15-20