🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

Four Horsemen
“Sir Jeffrey” tells us how to use “the law as a sword” to defend against the BIA’s anti-asylum precedent in M-R-M-S-. Don’t let yourself and your clients be “shredded and trampled” by BIA panels wielding deadly, hyper-technical, counterintuitive, overly restrictive asylum precedents designed to promote and support “any reason to deny!”
Albrecht Dürer, Public domain, via Wikimedia Commons

https://www.jeffreyschase.com/blog/2023/12/24/asylum-in-the-time-of-m-r-m-s-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

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Asylum in the Time of M-R-M-S-

Introduction

In 2017, while Matter of L-E-A-1 was pending before the BIA, I attended an immigration law conference at which Professor Jon Bauer posed the following “thought experiment”:

A Nazi official threatens to kill all the Jews in a town unless a Jewish criminal, who has committed several robberies and murders and is suspected to be hiding in the area, is turned over to the authorities or turns himself in.

Is this persecution on account of religion?

The answer is obviously yes. Those in the town find themselves at risk of persecution on account of their religion. It would seem impossible for anyone possessing knowledge of our asylum laws (or just plain common sense) not to understand this.

However, with its decision in Matter of M-R-M-S-,2 the Board of Immigration Appeals has managed to create a test for nexus that would lead to the opposite conclusion.

One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that; bemoaning the fact that regulations that are more than two years overdue could have prevented this; and suggesting that the correct course of action for the Attorney General to take at this point would be to vacate this decision in anticipation of said forthcoming rulemaking.

But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result. I hope that some of what follows will prove helpful, and that it will encourage further thought and conversation on this topic.

Legal Strategies in light of M-R-M-S-

  1. Distinguish your case based on the facts

In M-R-M-S-, the Board chose for its precedent a case surprisingly devoid of facts. The entire factual summary consists of three sentences. A criminal cartel forced the respondents off of their land “because the cartel wanted the land for its own purpose. The cartel killed the lead respondent’s grandson for unknown reasons, although the respondents believe it was related to the cartel’s efforts to obtain their land. The cartel also forced other families off of land in the same area.”

This summary makes no mention of how family membership might have been a factor; it only says the cartel wanted the land for its own unstated purpose. It can be argued that the decision simply establishes that cases asserting mixed motives need to present more than one motive.

Instead, the Board leaped to a much broader and more damaging conclusion that wasn’t even suggested by the above facts, namely, that targeting members of a family for purposes of achieving another non-protected ground renders the family membership “incidental or subordinate,” and thus lacking the nexus required for asylum or withholding of removal protection.

Tip: Distinguish your facts from those in M-R-M-S-.

Emphasize how family or another protected ground played a significant role in the applicant being targeted for persecution. Note that merely mentioning that other family members were also harmed does not in itself establish a nexus on account of family membership.

Tip: Employ the Board’s test in Matter of S-P- when applicable.

In Matter of S-P-,3, the BIA looked at when government prosecution might actually be persecution on account of political opinion. And one of the warning signs it mentioned occurs when the punishment is clearly out of proportion to the conduct in question. So under S-P-’s test, if someone charged with jaywalking is detained at length and beaten by the police, the reasonable conclusion is that the punishment wasn’t actually about the jaywalking.

One can transpose this approach to the particular social group consisting of family by arguing that the same logic applies to gang punishment for failing to pay extortion. Particularly where the amount being sought by the gang or cartel isn’t that much, when the response to the failure to pay is to threaten to severely harm or kill a family member of the target of extortion, a reasonable conclusion under S-P- would be that this isn’t simply about the money. A gang or cartel can seek a financial goal, but at the same time can develop an animosity against a family resistant to its demands.

Moving on, the use of the word “subordinate” in the Board’s most recent holding is of interest, for the following reasons.

  1. The fall and rise of the Board’s “subordination” criteria for nexus

In its first attempt to define the “one central reason” language adopted by Congress in 2005, the BIA in Matter of J-B-N- & S-M-4 recognized in the last paragraph of page 212 of that decision that the standard did not require a central reason to be “dominant” in relation to other reasons for persecution. In fact, in a footnote, the Board further explained: “The problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”

Yet two pages after rejecting a hierarchical approach to nexus, the Board defined the new standard as a reason that “cannot be incidental, tangential, superficial, or subordinate to another reason for harm.”

The problem with the inclusion of the word “subordinate” is obvious. It means that once an adjudicator finds a reason they consider to be the dominant one, their inquiry is over, and, as the Board itself warned, all other motives become irrelevant.

The Third Circuit, in Ndayshimiye v. Attorney General of U.S.5 rejected the Board’s standard for precisely this reason: its use of the word “subordinate” was found by the court to be no different from the “dominance” test that the Board purported to reject. To quote the Third Circuit:

This plain language indicates that a persecutor may have more than one central motivation for his or her actions; whether one of those central reasons is more or less important than another is irrelevant. The BIA acknowledged this in refusing to define a central reason within the meaning of § 208 as a “dominant” motivation. Id. at 212. The same logic forbids an interpretation that would impose a mirror image of the rejected “dominance” test: the requirement that a protected ground, even if a “central” reason for persecution, not be subordinate to any other reason.

Interestingly, following this rejection of its standard, the BIA reacted by dropping the word “subordinate” from its stated legal standard.  For example, in a subsequent (2011) precedent, Matter of N-M-, 6 the Board cited its earlier decision in  J-B-N & S-M-, but made no mention of that case’s incidental/tangential/superficial/subordinate language at all. Rather, the Board said:

In cases arising under the REAL ID Act, the “protected ground cannot play a minor role in the alien’s past mistreatment or fears of future mistreatment.” Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. Instead, a [noncitizen] must demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.7

The italicized sentence states a “but for” causation standard which we will discuss further below. In fact, it seems to be an identical standard to that employed by the Fourth Circuit, whose approach the Board criticized in M-R-M-S-.

Years later,  in the aforementioned Matter of L-E-A- (decided in 2017), the Board amended its earlier language in J-B-N- & S-N- as follows:

The protected trait, in this case membership in the respondent’s father’s family, “cannot play a minor role”—that is, “it cannot be incidental [or] tangential . . . to another reason for harm.”8

Notice how an ellipsis is used to drop the word “subordinate” from the definition. So the Board seemed to understand for quite some time that the legal standard it enunciated could not include a dominance test (although it would then proceed to apply a dominance test in practice, as numerous circuit court reversals have demonstrated)

But now, without explaining the reason for  its sudden reversal, the Board has in M-R-M-S- reverted to its original flawed standard.  Here’s the quote:

A protected ground that is “incidental, tangential, superficial, or subordinate to another reason for harm” does not satisfy this standard.  Matter of J-B-N- & S-M-, 24 I&N Dec. at 214. 9

Furthermore, the Board chose to reassert its dominance requirement in a case in which the facts mention only one reason, and a vague one at that – that “the cartel wanted the land for its own purpose.” A dominance test is meaningless where there is only one reason asserted for the persecution.

But what if the revived dominance test were to be applied to Prof. Bauer’s hypothetical? Presumably, the Board would find the dominant reason for the threatened persecution to be the Nazi authorities’ desire to bring a criminal to justice. The targeting of the suspect’s coreligionists as a means to achieve that primary objective would, under the Board’s test, become “subordinate” to that goal, and would thus render the murdering of the town’s Jews “irrelevant.” Applying the Board’s “logic,” religion would not be one central reason for the murders.

As the above example demonstrates, the Board’s test will lead to truly absurd results. It is therefore not surprising that the Board’s standard is at odds with the approach of most circuits.

  1. The reinstituted dominance test conflicts with most circuit case law

Tip: Argue the inapplicability of M-R-M-S- where it conflicts with prevailing circuit law.

While not exhaustive, the following selection of circuit court case law should provide a basis for arguing that the Board’s standard for determining nexus is inapplicable in many courts located within the jurisdiction of those circuits

Third Circuit

It should certainly be argued in cases arising within the jurisdiction of the Third Circuit that the new decision’s reiteration of the exact legal standard that was rejected in Ndayshimiye (as discussed above) means that M-R-M-S- cannot be followed. The BIA actually recognized the conflict in footnote 6 of its decision, stating:

Although the United States Court of Appeals for the Third Circuit generally agrees with the Board’s interpretation of the “one central reason” standard, it has rejected the requirement that a protected ground not be subordinate to another reason for harm. See Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 130–31 (3d Cir. 2009).

The Board thus seemed to acknowledge by way of this footnote the inapplicability of its decision in the Third Circuit.

Fourth Circuit

The BIA in M-R-M-S- does not contest that its requirement for nexus is at odds with the long-established “but for” standard employed by the U.S. Court of Appeals for the Fourth Circuit.

In Hernandez-Avalos v. Lynch,10 the Fourth Circuit explained that even though a gang threatened the petitioner for the purpose of recruiting her son, the applicant was nevertheless targeted “on account of” her family ties because her “relationship to her son is why she, and not another person, was threatened….”  The court has repeated the “why she, and not another person” test in other decisions.11

The Fourth Circuit has more recently pointed to an oft-repeated error of the Board in “incorrectly focusing on why the gang targeted Petitioner’s family, rather than on why they targeted Petitioner herself.”12  In another published decision, the Fourth Circuit stated that “‘once the right question is asked’ — that is, why was Petitioner being targeted — the conclusion is quite clear: ‘whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.’”13

The fact that the Board in M-R-M-S- states that it prefers the approach of the Tenth Circuit, which “does not agree with the Fourth Circuit’s approach,”14 does not change the fact that the standard enunciated in the above-captioned Fourth Circuit decisions remains the standard for nexus applicable in Immigration Courts and Asylum Offices located within that circuit’s jurisdiction.

Cases being heard remotely by an IJ located within the Fourth Circuit

A decision of the Fourth Circuit issued last year provides a strong argument for applying that court’s nexus standard in lieu of the M-R-M-S- approach in cases geographically outside of the circuit’s jurisdiction which are heard remotely by Immigration Judges sitting in Virginia, Maryland, or North Carolina.

In Herrera-Alcala v. Garland 15, the Fourth Circuit held that under a plain reading of the statute, jurisdiction is determined by the geographic location of the immigration judge at the time the judge completed the proceedings.

The BIA subsequently issued a conflicting precedential opinion, Matter of Garcia.16 But as the Fourth Circuit’s ruling in Herrera-Alcala was based on its clear reading of the statutory language, the lack of a finding of statutory ambiguity would preclude deference to the Board’s view under either Chevron or Brand X.

In cases in which the Immigration Judge is sitting within the Fourth Circuit while the respondent is appearing in an immigration court elsewhere, the argument should be made that Fourth Circuit case law should apply. Claims constructed using Fourth Circuit precedent should be presented below, as in case the claim is denied by the agency, the applicant will ultimately be able to seek review before the Fourth Circuit.

Cases arising under the jurisdiction of other circuits

Fifth Circuit

Outside of the obvious examples of the Third and Fourth Circuits, be highly aware of the case law of the prevailing circuit regarding nexus. Most circuits have rejected the Board’s approach to some degree. Furthermore, the BIA misrepresented the holdings in some of the circuit decisions it cited in M-R-M-S-, a point that should be brought to the attention of judges or asylum officers.

The Fifth Circuit provides us with an example. In M-R-M-S-, the BIA cited the Fifth Circuit’s decision in Guevara-Fabian v. Garland17 as an example of a court employing an analysis of nexus consistent with its own approach.18 However, the court in Guevara-Fabian simply found that there was substantial evidence that the petitioner was targeted “because she owned a profitable business,” and not due to her family membership. This is quite different from the Board’s holding that being targeted due to one’s family membership is insufficient to establish a nexus where such family-based targeting is used as a means to achieving another non-protected goal.

Furthermore, four days after the issuance of M-R-M-S-, the Fifth Circuit published its decision in Argueta-Hernandez v. Garland.19 The facts in that case did not involve a family-based particular social group, but in addressing the subject of nexus, the court’s opinion rejected the agency’s general approach of rejecting all but the dominant reason for persecution.

Specifically, the Fifth Circuit found that in concluding threats by MS-13 were motivated “by criminal intent, personal vendettas, or monetary gain, which do not establish the required nexus,” the BIA disregarded that the petitioner “needed only to present ‘some particularized connection between the feared persecution’ and the protected ground in which his application for relief relies.” The court then referenced an earlier decision in which it had rejected the Board’s employment of an “either-or” approach to nexus in a mixed motive case, and said that the Board had acted similarly here by suggesting that Argueta was targeted for economic reasons “instead” of for a protected ground.20

So in cases arising in the Fifth Circuit, it should be argued that Guevara-Fabian did not support the Board’s approach in M-R-M-S-, as it was distinguishable on its facts, and that the court’s subsequent rejection in Argueta-Hernandez of the type of dominance approach and “either-or” test employed in M-R-M-S- puts the Board’s view of nexus in conflict with circuit law.

Sixth Circuit

On December 8 (i.e. 7 days after the publication of M-R-M-S-), the U.S. Court of Appeals for the Sixth Circuit issued its decision in Sebastian-Sebastian v. Garland 21. In that case, the petitioner, who suffered domestic violence at the hands of her husband, and, following his death, at the hands of his mother, claimed persecution on account of particular social groups which included  “Guatemalan Chuj [w]omen in domestic relationships who are unable to leave,” and “Guatemalan Chuj [w]omen who are viewed as property by virtue of their positions within a domestic relationship.” But the IJ found, and the Board affirmed, that the abuser acted based on a personal vendetta, and therefore found no nexus to a particular social group.

As the record contained ample evidence that “cultural expectations dictated that a Guatemalan Chuj woman in her position—both viewed as property and unable to leave by virtue of her domestic relationship—must stay with her in-laws and have nowhere else to go,” the Sixth Circuit determined there was “sufficient evidence for the BIA to conclude that Sebastian-Sebastian’s membership in these groups ‘underlay[s] all of [her persecutors’] actions.’”22 The court thus concluded that the Board’s failure to consider whether, in light of the above, the personal motives and particular social group membership were “inextricably intertwined” constituted reversible error.

The Sixth Circuit thus held (post-M-R-M-S-) that even where the primary reason for the persecution is a non-protected one (in this case, personal animosity), the fact that membership in a particular social group put and kept the asylum applicant in harm’s way is sufficient to render it sufficiently intertwined to satisfy the “one central reason” test. I believe a strong argument can be made that applying this approach to a family-based PSG would require a finding that even if the ultimate motive is extortion, if family membership is what put and kept the asylum applicant in harm’s way, there is sufficient nexus.

Seventh Circuit

In Gonzalez Ruano v. Barr,23  the Seventh Circuit explicitly rejected an approach essentially the same to that underlying the Board’s decision in M-R-M-S-. The petitioner suffered persecution by a criminal cartel whose leader viewed the petitioner’s wife as “property” that he sought to “possess.” The petitioner thus argued that his familial relationship to his wife was at least one central reason for his persecution.

On review, the Seventh Circuit specifically rejected the government’s argument that the persecution of the petitioner “was simply a ‘means to an end,’ making [the petitioner]’s relationship to his wife incidental.”24 The court found support in the Fourth Circuit’s decision in Hernandez-Avalos v. Lynch, adopting the Fourth Circuit’s test under which a nexus exists because the petitioner’s “relationship to his wife was the reason he, and not someone else, was targeted.”25

As the Seventh Circuit is in accord with the Fourth Circuit’s test that specifically rejects the Board’s approach to nexus (a conflict readily admitted by the Board in M-R-M-S-), the Board’s nexus standard is necessarily inapplicable in cases in which Seventh Circuit case law applies. It should be emphasized that the Fourth Circuit’s decision in Hernandez-Avalos which the Seventh Circuit positively cites is the specific decision mentioned by the Board in M-R-M-S- as an example of how the Fourth Circuit’s approach differs from its own.26

Eleventh Circuit

The Eleventh Circuit in Perez-Sanchez v. U.S. Att’y Gen.27 also applied a “but for” approach to nexus in a case involving family, determining that the persecutor’s monetary motivation did not render the petitioner’s family membership merely incidental where a criminal cartel targeted the petitioner because his father-in-law owed the cartel money. This is the exact scenario the Board rejected in M-R-M-S-, in which a family member is targeted as a means to a monetary end.

However, exactly as the Fourth Circuit had done in Hernandez-Avalos, the Eleventh Circuit stated that “In Mr. Perez-Sanchez’s case, it is impossible to disentangle his relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin.” The court  concluded that “the family relationship was one central reason, if not the central reason, for the harm.”28

Thus, the M-R-M-S- standard is at odds with Eleventh Circuit case law as well.

Ninth and Second Circuits

The approach of these two circuits relates to the “but-for” standard. The Ninth Circuit applies a “but-for cause” test in determining nexus. As that court recently noted, to satisfy that standard, an asylum applicant “must first show that ‘the persecutor would not have harmed [her] if such motive did not exist,’… that is, but-for cause, see But-for Cause, Black’s Law Dictionary (11th ed. 2019) (“The cause without which the event could not have occurred.”).29

Interestingly, in M-R-M-S-, the BIA quoted this but-for cause language from Parussimova without mentioning that the standard was in conflict with its own.30

It should therefore be argued in cases arising in the Ninth Circuit that applying that court’s “but-for cause” test would lead to a quite different result than the standard enunciated in M-R-M-S-.

The Second Circuit’s standard is less clear, but the court seems to view the “one central reason” requirement an even lower bar for establishing nexus than a but-for cause test. In Quituizaca v. Garland,31 the court noted the need to predict future persecution in withholding of removal claims, as opposed to other areas of law that employ a but-for causation test to past actions only. The court noted that where an adverse action has already occurred, there is an implication that “whatever evidence to establish but-for causation or refute it exists too.”

By contrast, the court noted that because of the predictive nature of future persecution in withholding claims, “[a] but-for standard in this context would seemingly require the applicant have insight into the motivations of the hypothetical future persecutor that sufficiently removes any doubt that the persecutor would be motivated by anything else,” adding that “[a]t a minimum, the proof that can be marshalled to rectify past conduct appears to us distinct from that which would be needed to establish a persecutor’s potential future conduct.”

While the Quituizaca decision is not even mentioned in M-R-M-S-, the Board does reference another Second Circuit case, Garcia-Aranda v. Garland,32 but essentially misrepresents that decision’s holding. In Garcia-Aranda, the facts established that although family members had also been harmed, the petitioners were targeted for persecution because of their own perceived wealth. Whether or not they were related to others who suffered harm would not change the outcome. Thus, in Garcia-Aranda, the court did not address, much less reject, the proposition that no nexus is established under a Hernandez-Avalos type of fact pattern.

A quick note regarding the Tenth Circuit

M-R-M-S- arose within the jurisdiction of the Tenth Circuit, and the Board lauded that court’s decision in Orellana-Recinos v. Garland33 as setting forth its preferred standard for nexus.34

It is worth noting that in Orellana-Recinos, “Petitioners did not challenge, or even cite, Matter of L-E-A- in their brief to this court. And at oral argument they cited it as authority. As previously noted, they dispute only the BIA’s factual findings in their case, not the legal framework it applied.”35

  1. What about the standard applied in discrimination cases?

The Supreme Court recently addressed the question of nexus outside of the asylum context in Bostock v. Clayton County,36  a case involving employment discrimination under Title VII of the 1964 Civil Rights Act.  The Court explained in Bostock that the statutory term in question, “because of,” carries the same legal meaning as “on account of,” (i.e. the standard used in asylum cases).

The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test.  As the Court explained, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”37

The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”  The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”38

This leads to the following question: if “on account of” is not a term specific to asylum, and if the Supreme Court has told us that there is a simple and traditional test for “on account of” that is none other than the “but-for” test being applied by several circuits as described above, can the BIA simply ignore this in creating its own definition for the term “on account of” applicable to asylum claims? M-R-M-S- makes no mention of Bostock. If the Board doesn’t believe that case to be applicable, why not explain its reasoning for reaching that conclusion?

Tip: There is thus an argument to be made in all jurisdictions that the Supreme Court’s standard in Bostock should be the prevailing one.

I have discussed Bostock and offered my views on its applicability to asylum in more detail here.

  1. Emphasize other BIA precedents

Even in the absence of conflicting circuit or Supreme Court case law, an Immigration Judge or asylum officer is left to sort through the several BIA precedents mentioned above. Matter of S-P- (which has not been overruled) did not conclude that because an asylum applicant faced criminal prosecution, there was nothing further to consider. Instead, the Board in that case set forth a test requiring adjudicators to continue their inquiry,  taking into account circumstantial evidence and applying common sense to see if another motive for the persecution might be inferred from the facts of record.

As noted above, Matter of N-M- set out a “but-for” standard that seems identical to the one employed by the Fourth Circuit. And even Matter of L-E-A- dropped the word “subordinate,” and thus the application of the dominance test, from its stated legal standard.

Tip: Note that these other BIA precedents remain binding as precedent.

These other cases should therefore be cited and explained, and the degree to which they conflict with M-R-M-S- should be emphasized. It can be argued that M-R-M-S-’s applicability should be limited to cases in which family members are merely mentioned in passing, without further elucidation from the record as to why family membership might have served as a reason for past or future persecution.

Conclusion

As the above hopefully demonstrates, there are plenty of bases to challenge the Board’s recent decision. In M-R-M-S-, the Board presented an approach to nexus that is at odds with the case law of the majority of circuits. The Board mischaracterized the holdings in a number of circuit court decisions, championed a decision of the Tenth Circuit in which the Board’s standard was conceded and thus not in dispute before that court, and completely ignored the Supreme Court’s analysis of the “on account of” standard without explaining why what the Court termed the traditional standard for nexus was distinguishable in the asylum context.

To reiterate, the proper thing for the Attorney General to do at this point is to certify the decision to himself, and vacate it pending anticipated rulemaking. In the meantime, it is hoped that some of the above points will receive serious consideration from asylum officers, Immigration Judges, ICE attorneys, and federal appellate courts.

Copyright Jeffrey S. Chase 2023. All rights reserved.

Notes:

  1. 27 I&N Dec. 40 (BIA 2017).
  2. 28 I&N Dec. 757 (BIA 2023).
  3. 21 I&N Dec. 486 (BIA 1996).
  4. 25 I&N Dec. 208 (BIA 2007).
  5. 557 F.3d 124, 129-30 (3rd Cir., 2009).
  6. 25 I&N Dec. 526 (BIA 2011).
  7. Id. at 531 (emphasis added).
  8. Matter of L-E-A-, supra at 44.
  9. Matter of M-R-M-S-, supra at 759 (emphasis added).
  10. 784 F.3d 944, 950 (4th Cir. 2015).
  11. See, e.g., Alvarez-Lagos v. Barr, 927 F.3d 236, 250 (4th Cir. 2019); Cruz v. Sessions, 853 F.3d 122, 129 (4th Cir. 2017).
  12. Perez Vasquez v. Garland, 4 F.4th 213 , 222 (4th Cir. 2021).
  13. Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020) (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018)).
  14. M-R-M-S-, supra at 761.
  15. 39 F.4th 233 (4th Cir. 2022).
  16. 28 I&N Dec. 693 (BIA 2023).
  17. 51 F.4th 647, 648 (5th Cir. 2022) (per curiam).
  18. M-R-M-S-, supra at 760.
  19. No. 22-60307 (5th Cir. Dec. 5, 2023).
  20. Id., slip op. at 16-17 (citing Rivas-Martinez v. I.N.S., 997 F.2d 1143, 1145, 1147-48  (5th Cir. 1993) (remanding to BIA for consideration of mixed motives).
  21. No. 23-3059 (6th Cir. Dec. 8, 2023).
  22. Id., slip op. at 22 (quoting Al-Ghorbani v. Holder, 585 F.3d 980, 998 (6th Cir. 2009).
  23. 922 F.3d 346 (7th Cir. 2019).
  24. Id. at 355-56.
  25. Id. at 356.
  26. See M-R-M-S-, supra at 761 (stating that the Tenth Circuit does not agree with the Fourth Circuit’s approach in Hernandez-Avalos, and adding its opinion that the Tenth Circuit’s is the proper approach).
  27. 935 F.3d 1148 (11th Cir. 2019).
  28. Id. at 1158-59.
  29. Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021) (quoting Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).
  30. See M-R-M-S-, supra at 762.
  31. 52 F.4th 103, 112-13 (2d Cir. 2022).
  32. 53 F.4th 752, 758 (2d Cir. 2022).
  33. 993 F.3d 851 (10th Cir. 2021).
  34. M-R-M-S-, supra at 761 (stating “In our view, the Tenth Circuit’s approach is the proper way to analyze whether membership in a family-based particular social group is one central reason for harm.
  35. Id. at 857.
  36. 140 S. Ct. 1731 (2020).
  37. Id. at 1739.
  38. Id.

DECEMBER 24, 2023

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge and Senior Legal Advisor at the Board of Immigration Appeals.He is the founder of the Round Table of Former Immigration Judges, which was awarded AILA’s 2019 Advocacy Award.Jeffrey is also a past recipient of AILA’s Pro Bono Award.He sits on the Board of Directors of the Association of Deportation Defense Attorneys, and Central American Legal Assistance.

Reprinted by permission.

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It’s very satisfying to see Jeffrey’s positive use of Matter of S-P-, a “Schmidt era” precedent in which I joined and which remains good law despite the current BIA’s often ignoring or misapplying it. It’s also a great example of the useful guidance flowing from “positive precedents” — those illustrating and promoting proper asylum grants — as opposed to the overwhelmingly negative tenor of today’s unduly restrictive BIA asylum precedents. 

As many of us often say, justice for asylum seekers and other migrants shouldn’t be this difficult in Garland’s courts. See also https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

Even while the BIA tortures asylum law to make it more difficult to qualify, authorities in other “UN Convention nations” are moving in the opposite direction. For example, Switzerland recently joined Finland, Sweden, and Denmark in automatically granting asylum to Afghan women.  See, e.g., https://www.tortoisemedia.com/2023/12/19/switzerland-becomes-fourth-country-to-automatically-grant-asylum-to-afghan-women/. 

This approach is far more consistent with the Supreme Court’s generous guidance in INS v. Cardoza-Fonseca and the BIA’s own initial implementation of that standard in Matter of Mogharrabi, both of which are routinely ignored at EOIR today. (Indeed, if someone with the exact same facts as Mogharrabi applied today, it’s highly likely that the BIA would invent a host of bogus reasons to send him packing!)  It’s also a much more practical approach that can actually “streamline” the granting of more “first instance” cases by the Asylum Office, greater consistency, and lessening the need for petitions for review and “Circuit specific” strategies. 

While there is no “silver bullet” that will eliminate overnight a backlog built over years of neglect, active mismanagement, and poor performance at EOIR and DOJ, a new, functional, well-respected BIA of asylum expert judges unswervingly committed to due process, fundamental fairness, and best practices is an absolutely necessary first step toward regaining control over our asylum system without sacrificing the legal rights of asylum seekers. The system can’t start eliminating backlog until it ceases doing those things that build unnecessary backlog in the first place. 

In the meantime, this example of “law you can use” from “Sir Jeffrey” promises to be the “gift that keeps on giving” during what is sure to be a difficult upcoming year for refugees, asylum seekers, migrants, and their dedicated attorneys and representatives!

🇺🇸 Due Process Forever!

PWS

12-26-23

⚖️ FOLLOWNG SCATHING REPORT ON ABUSE OF KIDS IN IMMIGRATION COURT, EOIR ANNOUNCES SOME REFORMS — Rekha Sharma-Crawford Reports!

Rekha Aharma-Crawford
Rekha Sharma-Crawford ESQUIRE
Partner and Co-Founder Sharma-Crawford Law
Kansas City, KS

Rekha writes on LinkedIn:

A major step towards acknowledging that the best interest of the child must play a critical role in immigration cases. This was an idea I raised over 10 years ago with my friend and colleague, the brilliant Lory Rosenberg. Later the idea again was put forward with two additional brilliant colleagues, Paul Schmidt and Susan Roy. Sometimes it takes a very long time, but the right approach can’t be hidden forever.  So pleased to see it is finally seeing some daylight.

Here’s the Memorandum from EOIR Director David  L.  Neal:

https://www.justice.gov/d9/2023-12/dm-24-01.pdf

Here’s the recent UCLA Center for Immigraton Law & Policy report on EOIR’s systemic failure to provide due process for children in Immigration Court:

🤮☠️ AS CONGRESS ENGAGES IN TRUTH & REALITY FREE (NON) DEBATE ON HOW TO INFLICT MORE CRUELTY AND MAYHEM ON VULNERABLE ASYLUM SEEKERS, THE REAL IMMIGRATION PROBLEMS GO UNADDRESSED — “No Fair Day” Documents Continuing Abuse Of Kids In Immigration Court!

Here’s a link to the “Sharma-Crawford, Rosenberg, Roy, Schmidt article” on “Best Interests of The Child in Immigration Court:”

🇺🇸⚖️ “BEST INTERESTS OF THE CHILD” IS A WIDELY-ACCEPTED EMPIRICALLY- SUPPORTED CONCEPT OF AMERICAN LAW — BUT NOT @  GARLAND’S DYSFUNCTIONAL EOIR! — The “Gang of 4,” Lory, Rekha, Sue, & I, With “Practical Scholarship” On How & Why To Argue For 21st Century Jurisprudence In A System Too-Often Wedded To The Past!

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

As noted by my Round Table colleague “Sir Jeffrey” Chase, our Round Table has spoken out about the need for a separate Immigration Court system for children:

As you know, our Round Table signed on to a letter of support for proposed legislation to create a Children’s Immigration Court.

[Director Neal’s statement is] a positive administrative development.

Here’s my take:

  1. While progress is always welcome, this statement shrouds the concept of “best interest of the child” (“BIC”) with legal gobbledygook and bureaucratic doublespeak. (P. 3 of Neal Memo under “Legal Standards”).
  2. Here’s what a clear, correct statement on BIC would look like:

BIC, regardless of whether or not presented by a “Child Advocate” or incorporated in a “Best Interests Determination” (“BID”), can be directly relevant to issues of removability. For example, evidence of removability obtained by methods that clearly conflict with the BIC could be found unreliable or the result of “egregious misconduct” for the purposes of determining removability.

The BIC can also be highly relevant to issues of eligibility for relief. For example, a government or society that deprives certain children of all meaningful educational oportunities might well be engaging in persecution.

In addition, in NLPR cancellation cases, the BIC could be persuasive, even determinative, evidence that removal of a parent will result in “exceptional and extremely unusual hardship” to a USC or LPR child or children.

3) Finally, since the EOIR Director is an administrator, not a quasi-judicial official, his or her policies have a distinct “you can take it or leave it” effect in Immigration Court. Therefore ameliorative statements from the Director, no matter how well-intended, are only effective if the BIA is willing and able to insist on and enforce “best practices” on Immigration Judges, preferably through precedent decisions and reassigning cases away from those IJs who show repeated contempt for due process and best practices.

Unfortunately, the current version of the BIA has, as a body, shown neither much sympathy nor concern for the substantive and due process rights of asylum seekers and other immigrants in Immigration Court. Unless and until Garland “cleans house” and appoints a BIA where all Appellate Judges are immigration/human rights experts laser focused on due process and best practices in Immigration Court — and not afraid of enforcing them uniformly in individual cases and incorporating them in binding precedents — the Director’s latest somewhat ameliorative statement is likely to be as toothless in practice as past efforts.

To a large extent, that’s a “nutshell” of why Garland’s Immigration Courts are in dire failure that threatens our entire democracy.

Unfortunately, that we are three years into this Administration and Garland is still bumbling along with a BIA that largely represents the mistakes and shortcomings of his predecessors suggests that waiting for him to “get religion” on the need for expertise, due process, fundamental fairness, and best practices at EOIR will continue to be an exercise in “Waiting for Godot!”

Waiting for Godot
Immigration practitioners waiting for Garland to institute “due process, fundamental fairness, and best practices” as the sole mission of his EOIR “courts.” It could be a long wait. Very long! Too long!
Naseer’s Motley Group in The Rose Bowl
Merlaysamuel
Creative Commons Attribution-Share Alike 3.0
Waiting for Godot in Doon School.jpg Copy
[[File:Waiting for Godot in Doon School.jpg|Waiting_for_Godot_in_Doon_School]]
Copy
December 8, 2011

🇺🇸 Due Process Forever!

PWS

12-22-23

🇺🇸⚖️🗽👩🏽‍⚖️ NDPA ALERT ‼️ — APPLY TO BE A U.S. IMMIGRATION JUDGE — POSITIONS AVAILABLE, LOCATIONS “NEGOTIABLE” — Help Fix Our Justice System “From The Ground Up!” — Apply By Friday, Dec. 15!

I want you
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it!
Public Domain

https://www.justice.gov/legal-careers/job/immigration-judge-2#

Immigration Judge

SharepastedGraphic.png

Hiring Organization

Executive Office for Immigration Review (EOIR)

Hiring Office

Office of the Chief Immigration Judge

Job ID

DE-12215980-23-VG

Location:

5107 Leesburg Pike

Falls Church, VA 22041 – United States

Application Deadline:

Friday, December 15, 2023

About the Office

The agency is still considering referred applicants from the previous announcement posted September 25, 2023, under announcement number, IJ-12116877-23-VG. If you applied under that announcement and were referred for consideration, you need not reapply under this announcement.

This is an Excepted Service position. Upon completion of the required trial period, the position will be permanent. Additional positions may be filled from this announcement within 90 days of certificate issuance.

This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge. EOIR seeks highly-qualified individuals to join our team of expert professionals who serve as immigration adjudicators in this important Agency.

EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.

EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.

Job Description

Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.

Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations

Qualifications

In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:

  • Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

  • Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the Federal, State or local level. Qualifying trial experience involves cases in which a complaint was filed with a court or administrative agency, or a charging document (e.g., indictment, notice of violation, or information) was issued by a court, administrative entity, a grand jury, or appropriate military authority. Relevant administrative experience includes cases in which a formal procedure was initiated by a governmental administrative body.

NOTE: Qualifying experience is calculated only after bar admission.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. If your resume does not support your assessment questionnaire answers, we will not allow credit for your response(s). Ensure that your resume contains your full name, address, phone number, email address, and employment information. Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed. In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.

Additional information

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Additional positions may be filled from this announcement within 90 days of certificate issuance.

Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.

There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation. (See the “Required Documents” section.)

Application Process

To apply for this position, please click the below link to access and apply to the vacancy announcement via USA Jobs: USAJOBS – Job AnnouncementLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. . Please read the announcement thoroughly. You must submit a complete application package by 11:59pm (EST) on 12/15/2023, the closing date of this announcement.

Salary

$149,644 – $195,000 per year

Number of Positions

Many vacancies (see below vacancy link for locations): Location Negotiable After Selection

Travel

50% or less – You may be expected to travel for this position.

Relocation Expenses

Not authorized

*         *         *

Department Policies

Equal Employment Opportunity:  The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer.  Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor.  The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.

Reasonable Accommodations:  This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency.  Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

Outreach and Recruitment for Qualified Applicants with Disabilities:  The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements.  Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority.  Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.

Suitability and Citizenship:  It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment.  Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/Links to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link.). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.

Veterans:  There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdfLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).

USAO Residency Requirement:  Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof.  See 28 U.S.C. 545 for district specific information.

*         *         *

This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.

Updated December 1, 2023

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

Yes, I’ve been highly critical of EOIR, particularly the BIA. But, to change the system for the better, we need the “best and brightest judges” at the “retail level” — the U.S. Immigration Courts!

So, in that spirit, let’s take a “deep dive” into the BIA’s latest misapplication of asylum law, Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023) looking to mine a “Hon. Sir Jeffrey Chase golden nugget” from disaster. See e.g., https://immigrationcourtside.com/2023/11/17/%E2%9A%96%EF%B8%8F-hon-sir-jeffrey-chase-mines-golden-nuggets-from-slurry-of-denial-varela-chavarria-v-garland-1st-cir/.%0A%0A

In the process of denying asylum to a family targeted by gangs in Mexico, the BIA says: 

The Immigration Judge’s finding that the cartel was motived by a desire to control the respondents’ land rather than their family membership is a permissible view of the evidence and is not clearly erroneous.

See, e.g., my recent post for additional commentary on this decision: https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

This negative finding by the IJ was “permissible,” not “compelled.” That language admits that other fact-findings on the same evidence could also be “permissible.” Much depends on the individual Immigration Judge’s frame of reference and willingness to look for “reasons to protect” rather than defaulting to “reasons to reject.”

So, what if the IJ were able to see and understand asylum from the standpoint of the applicant, rather than defaulting to the EOIR “any reason to deny” approach? Fairer fact-findings below would require more careful review by the BIA. Rather than just being able to mindlessly affirm adverse findings below, the BIA would basically be legally bound to uphold more positive findings unless “clearly erroneous.”

Of course in their haste to deny some BIA panels are prone to violate the “clearly erroneous” standard to “get to no.” But, that increases the chances of Circuit reversal. See, e.g., Crespin Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (my case from Arlington).

Additionally, DHS can’t and doesn’t appeal every asylum grant, particularly when they are “fact bound.” I actually had ICE Assistant Chief Counsel say on the record in waiving appeal that while they respectfully disagreed with my fact-findings, they recognized that they were not “clearly erroneous” for purposes of appeal. (Other times they actually agreed after I had stated my detailed findings and analysis, sometimes actually repeating during closing arguments the basic analysis I would have reached on the record we had just made.)

Better judging below can actually cut off and discourage backlog building “let’s spin the bottle” appeals by DHS encouraged by the BIA’s systemic failure to consistently uphold the rights of asylum seekers and their “unduly restrictive” interpretations of asylum law! 

Buried amongst the morass of poor administration and bad appellate judging at EOIR, many “true expert” IJs are making great decisions and saving lives on a daily basis. One of the “best kept secrets” at EOIR — often intentionally obscured by both EOIR and the media (not to mention GOP White Nationalist nativists) — is that as of this summer over half of all those who passed “credible fear” — 55% — received asylum grants if they were actually able to get to merits hearings at today’s backlogged EOIR! See, e.g., https://humanrightsfirst.org/wp-content/uploads/2023/08/Asylum-grant-rates-fact-sheet-August-2023.pdf. 

That’s an impressive rate, given that the system is stacked against asylum applicants! It also highlights the total insanity of today’s discussions on the Hill of how to artificially heighten standards to bar asylum seekers and promote more arbitrary wrongful denials of life-saving protection. What’s needed is better judging and more realistic and humane policies, NOT more cruelty and misapplications of asylum law!

As I have pointed out along with others, asylum grant rates would be much higher with better judges at EOIR and better precedents from the BIA. Better guidance would mean more cases granted at the Asylum Office and Immigration Court levels and a more timely and efficient system that advances and promotes due process, rather than inhibiting it!

But, it can’t all be done “from the outside!” Better Immigration Judges — true asylum experts with “hands on” experience representing applicants before EOIR and the Asylum Office — are essential to rebuilding EOIR as a functional court system. 

For example, one of the expert recommendations from the very recent Women’s Refugee Commission study of asylum reception, resettlement, and processing was that: “One pro se assistance goal is to incentivize immigration judges to take a closer look at pro se asylum cases.”

https://www.womensrefugeecommission.org/research-resources/opportunities-for-welcome-lessons-learned-for-supporting-people-seeking-asylum-in-chicago-denver-new-york-city-and-portland-maine/

But, this laudable goal presupposes Immigration Judges who are experts in asylum law and able to “work their way through” some of the inherent barriers to justice in pro se Immigration Court cases rather than submitting to the “artificial production pressures and any reason to deny culture” that still exists at much of EOIR. Sadly, not all current IJs have this ability. Moreover, the BIA has provided defective leadership and guidance. EOIR judicial training on asylum does not measure up to much of that readily available in the private/NGO sector. See, e.g., VIISTA Villanova.

Many practitioners who have contacted me here at “Courtside” lament that their lives and their client’s futures would be better if they only were appearing before Immigration Judges who actually understood asylum law from a protection standpoint. They are frustrated by having their fine presentations and great arguments “shrugged off” with “predetermined boiler plate denials” citing negative language from the BIA — often ignoring what actually happened or was proved at trials.

Instead of being destined to forever be frustrated by EOIR’s shortcomings, YOU now have a chance to “be that judge” the one who understands asylum law, has seen the defects in EOIR decision-making, who doesn’t view denial as “preordained,” and will require both parties fairly to meet their burdens. (Ironically, there are many places where the asylum regulations still place the burden of proof on DHS, even if many IJs and BIA panels are unwilling to enforce them.)

So, get in those applications for EOIR judgeships! It’s a great way to show leadership by improving the system from the inside while saving lives in the process! Better judges for a better America — starting at the “retail  level!” 

🇺🇸 Due Process Forever!

PWS

12-05-23

⚖️ HON. “SIR JEFFREY” CHASE MINES GOLDEN NUGGETS FROM SLURRY OF DENIAL! — VARELA-CHAVARRIA v. GARLAND — 1st Cir.

Panning for Gold
Hon. “Sir Jeffrey” Chase does the hard, dirty work of sifting through the legal muck for golden nuggets of hope and enlightenment!
“The First Pan”
By by W. Sihmedtgen.
Public Realm

“Sir Jeffrey” writes:

In spite of the petition being denied, there is useful language on what constitutes persecution for a child, and in fn 6 on an IJ’s obligation to assist in delineating a PSG, whether or not the applicant is pro se.

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

Read the full decision here:

http://media.ca1.uscourts.gov/pdf.opinions/22-1780P-01A.pdf

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

Even when the final result passes Circuit review, the BIA’s too often sloppy “any reason to deny” approach should be of grave concern to all who advocate for due process and fundamental fairness for asylum seekers.

🇺🇸 Due Process Forever!

PWS

11-17-23

⚖️👩🏻‍⚖️👨🏼‍⚖️ SOME FORMER IMMIGRATION JUDGES SPEAK OUT AGAINST DRACONIAN TEXAS BORDER MEASURE!

Texas Border
Abuse of migrants has a long ugly history in Texas.
Public Realm (1948)

“Sir Jeffrey” Chase forwarded coverage from the Dallas Morning News containing these quotes:

 

Former immigration judges

Two former federal immigration judges, appointed by Republican and

Democratic presidents, raised concerns over state judges being tasked with

handling immigration cases.

“It makes no more sense for a state magistrate trained in state law to engage in

the interpretation and application of federal immigration law than it does for a

federal immigration judge …trained in federal to engage in an interpretation

and application of Texas law,” said Bruce J. Einhorn, a former immigration

judge appointed by President George H.W. Bush in 1990.

“It’s hard to comment on something that’s just so plainly unlawful and plainly

unconstitutional,” said Rebecca Bowen Jamil, a former federal immigration

judge appointed by President Barack Obama in 2016. “The state court judge

doesn’t have the training — doesn’t have the expertise — to protect the

constitutional rights of that individual before them.”

Einhorn and Jamil were among dozens of former federal immigration

judges who signed a statement saying the proposal violates the law.

Dallas Morning News article 11.14

CLARIFICATION: While a number of members of the Round Table signed this letter in a “personal capacity,” the Round Table, as an organization did not take a position on this issue.

For a deeper dive into the history of “Juan Crow” racism in Texas — the truth that Gov. Greg Abbott and the GOP don’t want you to know, see, e.g.,  https://www.nbcnews.com/news/latino/history-racism-against-mexican-americans-clouds-texas-immigration-law-n766956.

Juan Crow in Texas
Signs like the one in this undated image were displayed at various restaurants and other pubic accommodations under a system known as “Juan Crow” laws.Russell Lee / Dolph Briscoe Center for American History

🇺🇸 Due Process Forever!

PWS

11-16-23

UPDATE FROM HON. “SIR JEFFREY” CHASE:

Hi all: The Texas state law was passed by both houses of the Texas legislature, and is expected to be signed into law.

The letter from 30 individual members of this group was specifically mentioned yesterday on CNN’s The Lead with Jake Tapper.

I think this link will take you to the section in which the former judges’ letter is mentioned (at the 2:52 mark).

Best, Jeff

DPF!

 

PWS

11-16-23

⚔️🛡️⚖️🗽👩🏽‍⚖️ ROUND TABLE AMONG ORGS ENDORSING THE BIPARTISAN CHILDREN’S IMMIGRATION COURT BILL! — Rep. Hillary Scholten (D-MI) Among Co-Sponsors!

Cecelia M. Espenoza
Hon. Cecelia M.Espenoza
Former Appellate Immigration Judge, BIA; Member, Round Table of Former Immigration Judges
Source:
Denverdemocrats.org
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

“Sir Jeffrey” Chase reports:

Hi all: The bipartisan Children’s Immigration Court bill that we endorsed was introduced today.

The press release of Sen. Michael Bennet included this quote from Cecelia!

“The most vulnerable people in immigration proceedings are unaccompanied children. The Immigration Court Efficiency and Children’s Court Act of 2023 not only improves the process for children, it also provides necessary support and guidance to the overburdened immigration court system to address the needs of these children,” said Cecelia M. Espenoza, Former Appellate Immigration Judge.

A link to the full press release is here:

https://www.bennet.senate.gov/public/index.cfm/press-releases?id=26F938C9-0426-41DA-8F25-1BF08FD8E4AE

And this accompanying list of sponsoring organizations includes the Round Table (at #28):

https://www.bennet.senate.gov/public/_cache/files/8/5/85527130-70b8-40ab-8324-4ecc466712c5/E717DE48CC2EA2E5166E595774B666E5.children-s-court-supportive-orgs.pdf

Feel free to amplify/share/distribute.

Thanks to all! – Jeff

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

Thanks to Sen. Michael Bennett (D-CO), Sen. Lisa Murkowski (R-Alaska), Rep. Dan Goldman (D-N.Y.), Rep. Maria Salazar (R-Fla.), Rep. Hillary Scholten (D-MI), and Rep. Lori Chavez-DeRemer (R-OR)! This is long, long overdue! A great bipartisan idea! 😎

Rep. Hillary Scholten (D-MI)
Credit: Ike Hayman
SOURCE: Wikipedia

Rep. Hillary Scholten, the only former EOIR attorney in Congress, and an indefatigable advocate for good government, due process, common sense, and the well-being of children had this to say:

“Let’s be clear about one thing–infants and children should not be in a situation where they have to stand trial in immigration court,” said Scholten. “We have a deeply broken immigration system in this country. But as we continue the long and complicated work for repairing it, of fighting for justice in a political climate that has grown callous to the suffering of children, the next best option is creating a court that works to accommodate their unique needs. As a mom, I’ll never stop fighting for these vulnerable kids.”

🇺🇸 Due Process Forever!

PWS

11-4-23

⚖️🛡️ANOTHER ROUND TABLE AMICUS FILED — M.A. v Mayorkas!

Knightess
Knightess of the Round Table

Dan Kowalski reports:

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

Thanks to all involved! The Round Table is on a roll!🗽

🇺🇸 Due Process Forever!

PWS

10-10-23

⚖️🛡 LATEST NEWS  FROM THE ROUND TABLE:  “Round Table Files Amicus Brief in East Bay v. Biden”

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

From BIB daily:

http://www.bibdaily.com/

October 06, 2023

(1 min read)

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT, et al.,
Plaintiffs-Appellees,
v.
JOSEPH R. BIDEN, President of the United States, et al.,
Defendants-Appellants.

On Appeal from the United States District Court for the Northern District of California
Case No. 4:18-cv-06810-JST

BRIEF FOR AMICI CURIAE FORMER IMMIGRATION JUDGES & FORMER MEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE

TAGS:

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

Proud to be a member of this great group fighting for due process. Also grateful for all the great lawyers and firms who have provided pro bono drafting assistance to “give us a voice that needs to be heard!”

🇺🇸 Due Process Forever!

PWS

10-09-23

☠️🤮 DEADLY UNFAIR “COURTS” POTENTIAL “DEATH TRIBUNALS” FOR AFGHAN HAZARA  REFUGEES — Hon “Sir Jeffrey” Chase Speaks Out: “Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase!”

Julie Watson
Julie Watson
AP California Reporter
PHOTO:Pulitzer Center

https://apnews.com/article/afghanistan-deportation-taliban-asylum-us-immigration-court-cabf3bcdec9a62b12f08300d1260cd68

Julie Watson reports for AP:

The Afghan man speaks only Farsi, but he wasn’t worried about representing himself in U.S. immigration court. He believed the details of his asylum claim spoke for themselves.

Mohammad was a university professor, teaching human rights courses in Afghanistan before he fled for the United States. Mohammad is also Hazara, an ethnic minority long persecuted in his country, and he said he was receiving death threats under the Taliban, who reimposed their harsh interpretation of Sunni Islam after taking power in 2021.

He crossed the Texas border in April 2022, surrendered to Border Patrol agents and was detained. A year later, a hearing was held via video conference. His words were translated by a court interpreter in another location, and he said he struggled to express himself — including fear for his life since he was injured in a 2016 suicide bombing.

At the conclusion of the nearly three-hour hearing, the judge denied him asylum. Mohammad said he was later shocked to learn that he had waived his right to appeal the decision.

“I feel alone and that the law wasn’t applied,” said Mohammad, who spoke to The Associated Press on condition that only his first name be used, over fears for the safety of his wife and children, who are still in Afghanistan.

. . . .

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

Former immigration judge Jeffrey Chase, who reviewed the transcript, said he was surprised John-Baptiste waived Mohammad’s right to appeal and that the Board of Immigration Appeals upheld that decision. Case law supports granting protection for people who belong to a group long persecuted in their homelands even if an individual cannot prove specific threats, said Chase, an adviser to the appeals board.

But Andrew Arthur, another former immigration judge, said John-Baptiste ruled properly.

“The respondent knew what he was filing, understood all of the questions that were asked of him at the hearing, understood the decision, and freely waived his right to appeal,” Arthur, a fellow at the Center for Immigration Studies, which advocates for immigration restrictions, said via email.

Chase said the hearing appeared rushed, and he believes the case backlog played a role.

“Immigration judges hear death-penalty cases in traffic-court conditions,” said Chase, quoting a colleague. “This is a perfect example.”

Overall, the 600 immigration judges nationwide denied 63% of asylum cases last year, according to Syracuse University’s Transactional Records Access Clearinghouse. Individual rates vary wildly, from a Houston judge who denied all 105 asylum requests to a San Francisco one denying only 1% of 108 cases.

John-Baptiste, a career prosecutor appointed during the Trump administration’s final months, denied 72% of his 114 cases.

. . . .

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

Read Julie’s complete article at the link.

Hazaras are an historically persecuted group in Afghanistan whose already perilous situation has demonstrably worsened under the Taliban. See, e.g., https://www.ushmm.org/genocide-prevention/blog/urgent-action-needed-hazaras-in-afghanistan-under-attack. This case should have been a “slam dunk grant” under a proper application of precedents like Cardoza and Mogharrabi! Additionally, Hazara claims should be routinely grantable under the “pattern or practice of persecution” regulations that EOIR judges are supposed to apply (but seldom do). 

No wonder this system builds incredible unnecessary backlogs when it botches the easy grants, wastes time on specious, disingenuous reasons for denial, and allows questionably-qualified judges to run roughshod over due process, the rule of law, and binding precedents.

Here’s additional commentary from “Sir Jeffrey:”

Thankfully, the amazing Steve Schulman at Akin Gump took on Mohamed’s case after his pro se hearing, and Human Rights First provided additional support.

(The Round Table was prepared to file an amicus brief on this one at the Fifth Circuit, but an agreement was reached to reopen the case at the IJ level before briefing was due.)

That the Government agreed to reopen this case basically “says it all” about the absurd result in the original hearing and the bogus “waiver” of appeal.

🇺🇸 Due Process Forever!

PWS

09-29-23

🍂FALL FOLLIES: BIA FUMBLES BASIC STANDARDS FOR FUTURE FEAR AND INTERNAL RELOCATION, SAYS 6TH CIRCUIT — Lin v. Garland

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0205p-06.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca6-on-future-fear-internal-relocation-lin-v-garland

“The question before us is whether the BIA’s determinations are supported by substantial evidence. As will be explained below, the BIA’s rationale does not allow us to make that determination. So we grant Lin’s petition and remand for further proceedings. … It is difficult to imagine that a reasonable person in Lin’s position, under the circumstances demonstrated in the record, would feel safe returning home. The determination that Lin failed to show a reasonable likelihood of individualized persecution in China is contravened by the record and compels us to conclude otherwise. … [H]ere, where we are left with no indication that the BIA undertook the appropriate inquiry and significant indications that it likely did not, remand for full consideration is proper.”

[Hats off to Henry Zhang!]

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

PWS: “Another “Big Whiff” by the BIA! Sounds like assembly line denials to me!”

HON. “SIR JEFFREY” CHASE: “Whether a reasonable person returning home would feel safe – the correct standard cited by the circuit, is rarely if ever applied by the current BIA. I would really love to see the IJ training material on this standard.”

This is life or death folks! Why isn’t getting it right at the “retail level” an urgent mission for the Government?

🇺🇸 Due Process Forever!

PWS

09-13-23

🗽⚖️ BIA CONTINUES TO STRUGGLE WITH STANDARDS — Fortunately, WilmerHale (Tasha H. Bahal), Round Table 🛡️, 1st Cir. There To Straighten Things Out! — Murillo Morocho v. Garland — With Commentary From Hon. “Sir Jeffrey” Chase!

Kangaroos
“We don’t need no stinkin’ standards except how high to jump for DHS enforcement!”
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/22-1881P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca1-on-cat-standard-of-review-murillo-morocho-v-garland

“Petitioner Darwin Murillo Morocho seeks review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for deferral of removal to Ecuador under the Convention Against Torture (“CAT”). Murillo Morocho claims that, if returned to Ecuador, it is more likely than not that he would be tortured by the Ecuadorian government itself or by private actors acting with the consent or acquiescence of public officials. Before this court, he argues that the BIA applied the wrong standard of review to the Immigration Judge’s (“IJ’s”) legal conclusions. He further claims that both the BIA and the IJ applied the incorrect legal standard in assessing whether the Ecuadorian government would more likely than not consent or acquiesce in his torture. Finally, he argues that even if the BIA and IJ applied the proper legal standards, the BIA’s decision, which adopts the IJ’s decision, is not supported by substantial evidence and that the IJ erred in not giving him the opportunity to further corroborate his testimony. We agree that the agency1 applied the incorrect legal standard to the “consent or acquiescence” prong of Murillo Morocho’s CAT claim. We therefore grant his petition for review in part, vacate the order of the BIA denying Murillo Morocho CAT relief as to Ecuador, and remand for further proceedings consistent with this opinion.”

[Hats off to Tasha J. Bahal!]

Tasha Bahal ESQ
Tasha J. Bahal
Counsel
WilmerHale

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

Many congrats to Tasha and the rest of rest of the wonderful pro bono team over at WilmerHale!

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

Here’s what my Round Table colleague Hon. “Sir Jeffrey” Chase had to say:

Wonderful decision. Wilmer Hale has been doing outstanding work on deportation defense litigation.

H.H., the First Circuit’s recent precedent in which our Round Table filed an amicus brief, featured prominently in this decision.

Once again, the agency took the easy out – i.e. giving lip service to the acquiescence standard, rather than indulging in the in depth analysis required in such claims. Of course, EOIR’s training does not teach otherwise, and the BIA chooses to rubber stamp rather than correct and remand.

The First Circuit actually did the required analysis here. By contrast, it appears that as a “dismissal of a denial” by an IJ, this decision “defaulted” to the BIA’s “any reason to deny” assembly line. I suspect that if this had been a DHS appeal of an IJ grant, it would have received a more detailed, critical analysis. However, as we often see, even that analysis might be devoted to finding a bogus reason to deny.

Despite some improvement in the quality of IJ and BIA appointments under Garland, the lack of dynamic expert “pro due process” leadership and “culture of denial and deterrence” remain debilitating (and potentially life-threatening) problems at EOIR!

🇺🇸 Due Process Forever!

PWS

08-24-23

🤯 INCREDIBLE! — 2d Cir. Schools EOIR On Adverse Credibility — Chen v. Garland

 

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca2.uscourts.gov/decisions/isysquery/58f9e14a-e986-4263-9590-1f525ff8d4f9/2/doc/19-715_opn.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca2-on-credibility-chen-v-garland

“Zhi Bo Chen petitions for review of an order of the Board of Immigration Appeals (BIA) affirming a decision of an Immigration Judge (IJ) that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture, and ordered him removed from the United States. The IJ’s decision was based, in part, on its finding that Chen was not credible. Because certain reasons for that credibility finding were erroneous, and because we cannot be confident that the IJ would have made the same determination absent those errors, Chen’s petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion.”

[Hats off to Gary Yerman!]

Gary Yerman. Esquire
Gary Yerman, Esquire
Managing Partner
The Yerman Group
NY, NY

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

My favorite quote from the Circuit’s decision by Judge Raymond J. Lohier (Obama appointee): “We conclude that the IJ misidentified part of Chen’s testimony as inconsistent, improperly relied on trivial inconsistencies, and misconstrued as an omission a part of Chen’s testimony that comported with his Form I-589 asylum statement.” 

But, even with all these glaring defects, the IJ’s findings were affirmed by the BIA without much, if any, critical analysis. What does this say about EOIR under AG Garland?

Credibility should be “bread and butter” for EOIR Judges and particularly the BIA. But, when the “culture” is “any reason to deny,” bad things happen!

As my Round Table colleague Hon. “Sir Jeffery” Chase commented: “You have to wonder what percentage of all BIA decisions contain significant errors.” 

I think that’s a particular concern in unrepresented cases, which are much less likely to reach the Circuits. Additionally, the unduly restrictive legal standard for judicial review means that marginal BIA adverse credibility findings will often get “rubber stamp” affirmances from the Circuits.

Essentially, EOIR often denies the respondent “the benefit of the doubt” in close credibility cases and then the Courts of Appeals give the BIA “the benefit of the doubt.” So, it ends up being a “double whammy” for the respondent!

That’s why it is critical to have individuals effectively represented at the trial level! At each level thereafter, the law skews heavily in favor of the Government! 

That also supports the position that “dedicated dockets” and “expedited dockets” that discourage and impede (one could argue intentionally) effective representation and full presentation of all the evidence should be held to be prima facie denials of due process!

It’s also why I argue that it’s so important that exceptionally well qualified experts with experience representing asylum seekers be appointed to these hugely important (yet widely ignored and under-appreciated) EOIR judgeships! Better judges would make the entire EOIR system fairer and more efficient, without sacrificing due process!

That’s also why appellate victories like this by Attorney Gary Yerman are so impressive and telling about the continuing dysfunction at EOIR! 

Additionally, given the “loading of the system” against the respondent on credibility, the BIA has to REALLY screw up to get reversed, as they did in this case! That, in turn, raises a fundamental unresolved issue: Why is a Dem Administration running a specialized court system that all too often lacks the expertise and judgement to get “bread and butter” issues like this correct in the first instance? 

It’s obvious that a BIA that goofs up cases like this is NOT providing the type of clear, expert guidance to IJs necessary to achieve due process and fundamental fairness on a continuing systemic basis! That should be of huge concern to everyone who values justice in America!

🇺🇸 Due Process Forever!

PWS

08-01-23

⚖️ LAW YOU CAN USE! — 1st Cir. & Hon. “Sir Jeffrey” Chase Combine To Provide Expert Guidance On How To Handle BIA’s Inexpert Treatment Of Experts! 👍🏼

 

Star Chamber Justice
Experts find the BIA’s treatment of expert witnesses to be unduly harsh!
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/2023/7/28/expert-guidance-from-the-first-circuit-2

JEFFREY S. CHASE | OPINIONS/ANALYSIS ON IMMIGRATION LAW

Blog Archive Press and Interviews Calendar Contact

Expert Guidance from the First Circuit

For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable.

However, Immigration Judges are provided remarkably little guidance on how to assess expert testimony. A 2020 decision of the U.S. Court of Appeals for the Ninth Circuit, Castillo v. Barr,1 illustrates the problem. In that case, both the Immigration Judge and the BIA chose to discount the testimony of a qualified country expert because his testimony was not corroborated by other evidence of record. As the Ninth Circuit noted, “If an expert’s opinion could only be relied upon if it were redundant with other evidence in the record, there would be no need for experts.”2 Obviously, this simple, logical rule should have been incorporated in a BIA precedent decision by now.

When attorneys SangYeob Kim and Gilles Bissonnette of the ACLU of New Hampshire brought an appeal involving this issue with the U.S. Court of Appeals for the First Circuit, our Round Table of Former Immigration Judges was most happy to file an amicus brief in the matter. We used the opportunity to inform the court “how IJs and the BIA need, and lack, a clear standard for whether to admit—and how to weigh— expert evidence.”

Although the court issued an unpublished decision (and explained why it was precluded by Supreme Court precedent from establishing the uniform standard that we had requested), I believe the opinion offers wisdom on the topic that Immigration Judges might find useful in spite of its nonbinding nature. The case name is G.P. v. Garland, No. 21-2002 (1st Cir., July 13, 2023).

Rather than review the entire decision, in the hope of increased convenience, I have instead listed the issues raised in the case that are likely to arise in removal proceedings, and then summarized how the First Circuit addressed each issue.

The recency of the expert’s knowledge:

May an Immigration Judge discount an expert’s country knowledge as “stale” due to the passage of time since the expert’s last visit to the country in question or contact with its government’s officials?

In G.P., the court found no support for such approach where: (1) the record contained no evidence of changed conditions over the period of time in question; (2) the expert testified to the lack of significant changes in country conditions over that same time period; (3) such testimony regarding the lack of significant change went unchallenged by ICE, which did not call its own expert or offer other country evidence to the contrary; and (4) the conclusion was not contradicted by the petitioner.

The basis of the expert’s knowledge

Can an expert’s testimony be discounted for lack of firsthand “knowledge, research, or connections” to the country in question?

In G.P., the court pointed to the BIA’s own precedent decision in Matter of J-G-T- in which the Board adopted the Federal Rules of Evidence standard that an expert’s testimony is reliable when it is “`based on sufficient facts or data’ that the expert `has been made aware of or personally observed’ or from sources that `experts in the particular field would reasonably rely on.'”3

In addition to finding that the IJ had overlooked sources of firsthand knowledge, the court in G.P. found further error in the IJ’s failure to either mention or explain why sources that experts in the field would rely on that were mentioned by the expert in his voir dire, which included crime rates, DEA reports, and U.S. Department of State Country Reports, were not sufficient to credit the expert’s testimony.

The expert’s lack of personal knowledge of a specific criminal organization

Can an expert’s testimony be discredited where the expert lacked personal knowledge of the specific criminal organization that the applicant fears?

In G.P., the court found that the IJ erred in discounting the expert’s testimony for this reason. The court again referenced the Board’s statement in J-G-T- quoted above, and cited another BIA precedent, Matter of Vides Casanova, in which the Board held that an expert “need not have personal knowledge of the facts underlying” their opinion.4

Applying the above BIA guidance, the court observed that the expert witness learned specifics about the organization in question from reading the respondent’s affidavit, and importantly, that the facts contained in the respondent’s testimony and later testified to in court “were never challenged by the government or questioned by the IJ, who found G.P. credible.” The court added that “An expert cannot be ‘undermined by his reliance on facts . . . that have not been disputed’” (quoting from the Ninth Circuit’s decision in Castillo, supra at 1284).

The feared persecutors are based outside of the country of expertise

Can an expert’s testimony about a crime group based in the U.S. be discredited where the witness was qualified as an expert on organized crime in the Dominican Republic?

In G.P., although the group in question was based in New England, connected to a cartel based in Sinaloa, Mexico, and “served as a conduit between the Mexican drug cartels and customers in Northern New England,” the group did not fall outside of the witness’s area of expertise (i.e. organized crime in the Dominican Republic) where the expert testified to the Sinaloa Cartel’s strong presence in the Dominican Republic, influence over government officials there, and treatment of government cooperators.” The court therefore found that the IJ’s statement that the expert lacked direct knowledge of the criminal organization “mischaracterizes the evidence as a whole” and was not supported by substantial evidence of record.

Prior statements of the expert

How should a prior statement of the expert that is offered by ICE be treated by the IJ?

In G.P., ICE introduced a quote from the expert’s 2011 book in which he wrote that he “couldn’t honestly say that torture is something deportees [to the Dominican Republic] should expect.”

However, the First Circuit found error in the IJ’s reliance on the quote, because (1) the quote was in the context of an entirely different set of facts and employed a highly narrow definition of torture; (2) the expert was only asked whether he recalled the quote and to provide its context, and not whether he agreed with it; (3) the quote addressed the general risk of torture faced by deported noncitizens, and not the specific risk faced by G.P.; and (4) the IJ failed to explain why the 2011 book deserved significant weight when it was older than other evidence the IJ found to be stale.

Conclusion

Petitioner’s counsel has moved the First Circuit to publish the decision. But regardless of the outcome, counsel may wish to bring the court’s analysis to the attention of Immigration Judges, who in turn may find it highly useful in navigating the treatment of experts in cases before them.

– –

Hats off to SangYeob Kim and Gilles Bissonnette on their outstanding litigation in the First Circuit, which led to this satisfying decision. Our Round Table is most thankful to attorneys Adam Gershenson, Alex Robledo, Angela Dunning, Marc Suskin, Robby L.R. Saldaña, and Greg Merchant of the law firm of Cooley LLP, for their expert drafting of our amicus brief in this case.

Copyright 2023 by Jeffrey S. Chase. All Rights Reserved.

Notes

  1. 980 F.3d 1278 (9th Cir. 2020).
  2. Id. at 1284.
  3. Matter of J-G-T-, 28 I&N Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703).
  4. Matter of Vides Casanova, 26 I&N Dec. 494, 499 (BIA 2015). Interestingly, in VIdes Casanova, the country expert had been called by DHS to establish that the respondent was a persecutor of others. Under those circumstances, the BIA in its decision noted that an expert “is permitted to base her opinion on hearsay evidence and need not have personal knowledge of the facts underlying those opinions.”

JULY 28, 2023

Republished with permission

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

The BIA spends far too much time cooking up bogus ways to deny asylum and other forms of protection. This leaves a “vacuum” on providing sound advice and needed guidance for effectively presenting and fairly analyzing the large untapped potential for more grants of protection currently “bouncing around the EOIR backlog” or alternatively being mindlessly rushed through “dedicated deterrence dockets” with neither time for advocates to properly prepare nor opportunity for thoughtful analysis by IJs! It’s a real (totally preventable) “lose-lose” for our justice system and asylum applicants!

Fortunately those from outside EOIR, including Article III Judges, subject matter experts like Judge Sir Jeffrey, and his loyal colleagues in the Round Table 🛡 have stepped in to fill the void.  Wouldn’t it be better (and easier) to just aggressively recruit and hire the right expert, experienced, due-process-focused candidates for EOIR judgeships in the first place?

🇺🇸 Due Process Forever!

PWS

07-30-23

🏴‍☠️ ADMINISTRATIONS CHANGE, BUT SCOFFLAW MISTREATMENT OF ASYLUM SEEKERS DOESN’T — US District Judge Jon S. Tigar Blows Away 💨 Biden Administration’s Bogus Asylum Rules — Again! — Round Table 🛡⚔️ Weighs In On Winning Side — Again! — Order Delayed Pending Filing of Appeal, So The Carnage Continues for Now!☠️

Border Death
Dem A.G. Merrick Garland’s indifference to asylum laws, racial justice, due process, and the reality of seeking asylum at the border has become astoundingly grotesque!                                This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
n order to comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

 

EBSC III MSJ order

Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:

Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.

District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.

From Judge Tigar’s order:

“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…

The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”

The order is stayed for 14 days to allow the government to appeal.

Our group has once again helped make a difference in providing fairness and due process. Congrats to all.

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

Congrats to the plaintiffs and to my Round Table colleagues!

This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it. 

Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?

How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:

While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.

See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16

16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).

Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!” Why is it coming from a Dem AG?

🇺🇸Due Process Forever!

PWS

07-25-23

🤮 ALLEGATIONS OF RACISM IN OHIO LATEST SLAM AGAINST MERRICK GARLAND’S FAILED “COURTS!” — “(People) need to know how these courts are just a mockery and that they’re really harming people,” says one Ohio advocate! — Lack of due process, poor performance, systemic racial injustice make Garland’s “courts” a “millstone around the neck” for American Justice and Dems!☠️

 

Lady Injustice
“Lady Injustice” has found a home at Garland’s dysfunctional EOIR! Black Mauritanians and other asylum seekers of color find that the scales of justice are systemically weighted against them when on trial for their lives in AG Garland’s “courts!” 
Public Realm
Danae King
Danae King
Faith & Values & Immigration Reporter
Columbus Dispatch

https://apple.news/AgFzMWECESo-_Tr_S7-sMDg

DANAE KING | USA TODAY NETWORK:

. . . .

In 2020, asylum seekers from Sub-Saharan Africa were deemed not credible in 8.5% of interviews, over 37% more often than, on average, for all nationalities that year, according to an August 2022 U.S. Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination, submitted by several advocacy organizations.

“This data further confirms concerns raised about implicit racial and other bias in credibility determinations in US asylum adjudications,” the report states.

The report notes that Black asylum seekers face different treatment in the immigration system than others, including longer than average detention times, trouble finding accurate and adequate interpreters, different treatment in court, lack of access to counsel, purposefully rushed proceedings, biased judges, wrongful denial of asylum and more.

Lynn Tramonte has seen all those scenarios happen in Ohio.

“In immigration court, it’s almost like you’re guilty until proven innocent and they would rather err on the side of deporting a refugee who was tortured than granting asylum to someone who might be lying,” said Tramonte, director of the Ohio Immigrant Alliance, a group of Ohio immigrants and citizens who work to protect the dignity and rights of all through activism.

Nemecek has also seen judges and government attorneys “team up on (immigrants) and ask all kinds of questions and find them not credible.”

From 2002 to 2022, 713 Mauritanians went before immigration judges in Cleveland, and 443 were denied asylum. Another 28 had another form of relief, such as withholding of removal, and 242 were granted asylum, according to TRAC.

The United States Department of State considers Mauritania so dangerous that it recommends U.S. citizens don’t travel there due to crime and terrorism.

Tramonte wishes judges would do more research on the nations where asylum seekers are coming from.

“They have zero knowledge of documents from other countries or even what it’s like to be tortured,” she said.

A spokesperson for the Executive Office for Immigration Review (EOIR) disputed those claims.

. . . .

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Read  Danae’s full article at the link!

“Courtside” and others have been raising these issues for a long time! Yet, Garland has neither spoken out nor taken action to “clean up” courts that every expert would say are “broken” and need major changes, including better-qualified judges who have true expertise in asylum and human rights! 

Assistant Attorney General for Civil Rights Kristen Clarke is totally “MIA” on this serious issue and on the racially-driven travesties in DOJ’s “wholly-owned” court system, in immigration detention centers, and at the Southern Border! Associate AG Vanita Gupta, once a civil rights icon, has “vaporized” on perhaps the biggest, potentially solvable, civil rights/racial justice issue facing America! What’s happening here?

I spent years doing Mauritanian asylum cases on the EOIR Ohio Docket (and, to a lesser extent, in the “Legacy” Arlington Immigration Court). Most were clear grants of asylum! Few were appealed by ICE! Almost none were reversed by the BIA! I doubt that conditions have improved materially since then. 

Unfortunately, mistreatment of Black Mauritanian asylum seekers by EOIR is nothing new. It has a long and disreputable history going back decades.

In the late 1990’s, my now Round Table colleague Judge Lory Diana Rosenberg and I frequently dissented from wrong-headed denials of Mauritanian asylum claims by our BIA colleagues. See, e.g., Matter of M-D-, 23 I&N Dec. 1180, 1185, 1189 (Schmidt, Chairman, Rosenberg, Board Member dissenting), rev’d sub nom, Diallo v. INS, 232 F.3d 279 (2d Cir. 2000). There, the Circuit, in a decision written by Chief Judge Walker, agreed with many of the points raised by Judge Rosenberg and me in our respective dissents: “[T]he BIA failed to: (1) rule explicitly on the credibility of Diallo’s testimony; (2) explain why it was reasonable in this case to expect additional corroboration; or (3) assess the sufficiency of Diallo’s explanations for the absence of corroborating evidence.”

Judge Rosenberg and I were later “rewarded” by AG John Ashcroft by being “purged” from the BIA, along with a minority of other colleagues who had the temerity to stand up for the legal and human rights of migrants! Folks at EOIR “got the message” that standing up for immigrants’ rights and due process could be “career threatening!”

 That, in turn, unleashed a crescendo of sloppy, anti-migrant, dehumanizing decisions emanating from EOIR. Things got so bad so fast that subsequent Bush II AGs Gonzalez and Mukasey were finally forced, under extreme pressure from the Article IIIs, to intervene and put a stop to the most glaring abuses.

But, in fact, the EOIR system never recovered from that debacle. From then on, the BIA has been largely a “captain may I rubber stamp” (credit “Sir Jeffrey” Chase) for DHS Enforcement and each Administration’s political agenda. It’s been a continuous downward spiral, with subsequent AGs either actively encouraging abuses of asylum seekers and other migrants or being “willfully indifferent” to the ongoing legal and human rights disasters on their watches. 

It’s interesting how when the “powers that be” ignore abuses, they don’t go away. They just fester and get worse. Garland’s “what me worry” stewardship over EOIR is a classic example.

As for EOIR’s claim that they are providing IJs with “robust” asylum training, in the words of my friend, Kansas City attorney (and former Arlington intern) Andrea Martinez, “I call BS!” The proof is in the results!

My friend and Round Table colleague Judge “Sir Jeffrey” Chase puts it more elegantly:

In stating that the program is “robust” (i.e. fine as is), who among EOIR’s upper-level leadership is enough of an expert in the topic to make that determination? There are actually recent IJ hires with a great deal of expertise in asylum and CAT, but to my knowledge, they are not the ones creating or presenting the trainings.

EOIR’s asylum and CAT training remains insufficient, and the evidence of this can be found in the deluge of Circuit Court reversals, or even from simply reviewing hearing transcripts. Just compare the USCIS Asylum Officer training program with EOIR’s IJ training materials. A particular problem is the failure to properly train new IJs in the case law of the specific circuit in which they sit. Immigration Judges are largely left to their own devices to learn the law properly.

As the article states, these issues concerning Ohio have been raised before! See, e.g., https://immigrationcourtside.com/2022/10/07/🏴☠%EF%B8%8F🤮-halls-of-injustice-allegations-of-racism-misogyny-islamophobia-other-bias-have-been-swirling-around-garlands-dysfunctional-eoir/ Yet, there is no response from Garland. If the DOJ has done an investigation, the results should be made public. If not, the public deserves to know why prima facia credible allegations of systemic racism in his Immigration Courts have been ignored or deemed not credible.

Another example of superior asylum training available “on the market” is that developed by Professor Michele Pistone (a true asylum expert who has taught and inspired generations of attorneys now serving in and out of government) at VIISTA Villanova. I am sure that EOIR could have arranged with Professor Pistone to create a “world class” asylum training program for both new and experienced IJs. Indeed, she would have been a logical choice for Garland to have recruited for a senior position at EOIR.

The talent to fix EOIR exists on the open market. However, EOIR can’t be fixed with the senior management team Garland has put, or in some cases left, in place.

In the meantime, the stunningly poor quality, blatant racial insensitivity, and inept judicial administration Garland tolerates at EOIR will continue to be a millstone around the neck of American Justice and the Democratic Party. To what depths Garland will drag both remains to be seen.

Millstone
Garland’s dysfunctional and systemically biased Immigration “Courts” are a millstone around the neck for American Justice and Dems!
Creative Commons license

Finally, where are progressive human and civil rights stalwarts like Sen. Corey Booker (D-NJ) on this issue? Why haven’t they demanded some accountability from Garland? And, whatever happened to our first African-American Veep Kamala Harris? Does she still exist? What’s more important than racial justice in “life or death courts” wholly controlled by her Dem Administration?

🇺🇸 Due Process Forever!

PWS

07-18-23