Tag: Indigenous Guatemalans

⚖️ THE GIBSON REPORT — 08-01-22 — Compiled By Elizabeth Gibson, Esquire, Managing Attorney — NIJC — Unpublished 2d Cir. Indigenous Woman Asylum Remand Is A “Dive” Into Why EOIR Is A Dangerous & Unacceptable Drag On Our Justice System! ☠️

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

pastedGraphic.png

Weekly Briefing

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.    

CONTENTS (jump to section)

  • NEWS
  • LITIGATION & AGENCY UPDATES
  • RESOURCES
  • EVENTS

PRACTICE UPDATES

USCIS Extends COVID-19-related Flexibilities

USCIS: This extends certain COVID-19-related flexibilities through Oct. 23, 2022, to assist applicants, petitioners, and requestors. The reproduced signature flexibility announced in March, 2020, will become permanent policy on July 25, 2022. But DHS To End COVID-19 Temporary Policy for Expired List B Identity Documents.

OPLA Updates Its Prosecutorial Discretion Website

Parolees Can Now File Form I-765 Online

NEWS

DHS Fails to File Paperwork Leading to Large Numbers of Dismissals

TRAC: One out of every six new cases DHS initiates in Immigration Court are now being dismissed because CBP officials are not filing the actual “Notice to Appear” (NTA) with the Court. The latest case-by-case Court records obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University through a series of Freedom of Information (FOIA) requests show a dramatic increase in these cases.

Fewer Immigrants Face Deportation Based on Criminal-Related Charges in Immigration Court

TRAC:  Over the past decade, the number of criminal-related charges listed on Notices to Appear as the basis for deportation has declined dramatically. In 2010, across all Notices to Appear (NTAs) received by the immigration courts that year, ICE listed a total of 57,199 criminal-related grounds for deportation. See also ICE Currently Holds 22,886 Immigrants in Detention, Alternatives to Detention Growth Increases to nearly 300,000.

It Will Now Be Harder For Unaccompanied Immigrant Children To Languish In Government Custody

Buzzfeed: The US reached a settlement Thursday that establishes fingerprinting deadlines for parents and sponsors trying to get unaccompanied immigrant children out of government custody. Under the settlement, which expires in two years, the government has seven days to schedule fingerprinting appointments and 10 days to finish processing them.

ICE is developing new ID card for migrants amid growing arrivals at the border

CNN: The Biden administration is developing a new identification card for migrants to serve as a one-stop shop to access immigration files and, eventually, be accepted by the Transportation Security Administration for travel, according to two Homeland Security officials.

Republican states’ lawsuits derail Biden’s major immigration policy changes

CBS: Officials in Arizona, Missouri, Texas and other GOP-controlled states have convinced federal judges, all but one of whom was appointed by former President Donald Trump, to block or set aside seven major immigration policies enacted or supported by Mr. Biden over the past year.

Climate migration growing but not fully recognized by world

AP: Over the next 30 years, 143 million people are likely to be uprooted by rising seas, drought, searing temperatures and other climate catastrophes, according to the U.N.’s Intergovernmental Panel on Climate Change report published this year.

Washington mayor requests troops to aid with migrant arrivals from Texas and Arizona

Reuters: Washington Mayor Muriel Bowser has requested the deployment of military troops to assist with migrants arriving on buses sent by the Texas and Arizona state governments, according to letters sent by her office to U.S. military and White House officials. See also Migrants Being Sent to NYC From Texas — to the Wrong Places, With No Help, Sources Say.

Immigrant Arrest Targets Left to Officers With Biden Memo Nixed

Bloomberg: Former enforcement officials think most officers will take a measured approach, but some concede the absence of a central policy will cause problems. See also ICE Has Resumed Deporting Unsuspecting Immigrants at Routine Check-Ins.

ICE Suddenly Transfers Dozens of Immigrants Detained in Orange County

Documented: Advocates estimate that ICE moved dozens of individuals at the Orange County Jail in New York on Monday, and sent them to detention centers in Mississippi and elsewhere in New York, without prior notification to families or attorneys about the transfers.

Mexico deports 126 Venezuelan migrants

Reuters: An estimated 6 million Venezuelans have fled economic collapse and insecurity in their home country in recent years, according to United Nations figures. Many have settled in other South American countries but some have traveled north.

LITIGATION & AGENCY UPDATES

Matter of Ortega-Quezada, 28 I&N Dec. 598 (BIA 2022)

BIA: The respondent’s conviction for unlawfully selling or otherwise disposing of a firearm or ammunition in violation of 18 U.S.C. § 922(d) (2018) does not render him removable as charged under section 237(a)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(C) (2018), because § 922(d) is categorically overbroad and indivisible relative to the definition of a firearms offense.

CA2 Panel Says BIA Had No Basis Denying Guatemalans’ Asylum

Law360: The Second Circuit ordered the Board of Immigration Appeals to revisit an indigenous Guatemalan mother and son’s bids for asylum and deportation relief, saying the agency failed to provide a sufficient premise for affirming an immigration judge’s denial of relief.

CA9, En Banc: First Amendment Trumps INA Sec. 274(a)(1)(A)(vi): U.S. v. Hansen (Alien Smuggling)

LexisNexis: An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the non-recused active judges in favor of en banc consideration.

9th Circ. Says Ignorance Of Law Doesn’t Toll Asylum Deadline

Law360: Not knowing the law isn’t enough to excuse a Guatemalan union worker from missing the deadline to apply for asylum by three years, the Ninth Circuit said when it refused to overturn an immigration panel’s decision that the man’s circumstances weren’t “extraordinary.”

9th Circ. Hands Mexican Woman’s Asylum Bid Back To BIA

Law360: A panel of Ninth Circuit judges granted a petition to review an order rejecting a Mexican woman’s asylum bid Wednesday, saying in an unpublished opinion that the agency was wrong to determine that inconsistencies or omissions in her testimony undercut her credibility as a witness.

DC Circ. Won’t Impose Deadline For Afghan, Iraqi Visas

Law360: The D.C. Circuit has rejected requests from Afghan and Iraqi translators to alter a lower court’s order that granted the federal government an indefinite deadline extension to draft a plan for faster green card processing, ruling that reversing the order wasn’t necessary.

Advance Copy: DHS Notice of Extension and Redesignation of Syria for TPS

AILA: Advance Copy: DHS notice extending the designation of Syria for TPS for 18 months, from 10/1/22 through 3/31/24, and redesignating Syria for TPS for 18 months, effective 10/1/22 through 3/31/24. The notice will be published in the Federal Register on 8/1/22.

USCIS Provides Information on Form I-589 Intake and Processing Delays

AILA: USCIS is experiencing delays in issuing receipts for Form I-589. For purposes of the asylum one-year filing deadline, affirmative asylum interview scheduling priorities, and EAD eligibility, the filing date will still be the date USCIS received the I-589 and not the date it was processed.

Information on Form I-589 Intake and Processing Delays

USCIS: USCIS is currently experiencing delays in issuing receipts for Form I-589, Application for Asylum and for Withholding of Removal. Due to these delays, you may not receive a receipt notice in a timely manner after you properly file your Form I-589.

RESOURCES

EVENTS

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.  

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

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

RE: Elizabeth’s “Item #2” under “Litigation” — EOIR, & Garland’s Inexplicable Failure To Fix It, Is What’s Wrong With American Justice!

More than five years ago, an indigenous woman from Guatemala and her disabled son filed “slam dunk” asylum claims. Undoubtedly, “indigenous women in Guatemala” are a “particular social group” — being immutable, particularized, and clearly socially visible within Guatemalan society and beyond. See, e.g., https://www.govinfo.gov/content/pkg/USCOURTS-ca6-18-03500/pdf/USCOURTS-ca6-18-03500-0.pdf; https://indianlaw.org/swsn/violations-indigenous-women’s-rights-brazil-guatemala-and-united-states.

The foregoing sources also clearly illustrate that, with or without past persecution, such indigenous women would have a “reasonable fear” of persecution on account of their status under the generous standards for asylum adjudication articulated by the Supremes more than three decades ago in Cardoza-Fonseca and, shortly thereafter, reaffirmed and supposedly implemented by the BIA in Matter of Mogharrabi (a fear can be “objectively reasonable” even if persecution is significant unlikely to occur). Problem is: Both of these binding precedents favoring many, many more asylum grants are widely ignored by policy makers, USCIS, EOIR, and some Article III Courts — with no meaningful consequences!

Additionally, the respondents appear to have had grantable “racial persecution” claims based on indigenous ethnicity. The son, in addition to being a “derivative” on his mother’s application, also had an apparently grantable case based on disability.

In a functioning system, this case would have been quickly granted, the respondents would be integrating into and contributing to our nation with green cards, and they would be well on their way to U.S. citizenship. Indeed, there would be instructive BIA precedents that would prevent DHS from re-litigating what are essentially frivolous oppositions! 

But, instead, after more than five years and proceedings at three levels of our justice system, the case remains unresolved. Because of egregious, unforced EOIR errors it is still “bouncing around” the 1.8+ million EOIR backlog, following this remand from the Second Circuit. 

Exceptionally poor BIA legal performance, enabling and supporting a debilitating “anti-immigrant/anti-asylum/racially derogatory culture of denial” at EOIR, has led to far, far too many improper asylum denials at the Immigration Judge level and to a dysfunctional system that just keeps on building backlog and producing grotesquely inconsistent, “Refugee Roulette” results! Go to TRAC Immigration and check out the shocking number of sitting IJs with absurd 90% or more “asylum denial rates.” 

It also fuels the continuing GOP nativist blather that denies the truth about what is happening at our Southern Border. We are wrongfully denying legal protection and status to many, many qualified refugees — often without any process at all (let alone due process) and with a deeply flawed, biased, and fatally defective process for those who are able to “get into the system.” (Itself, an arbitrary and capricious decision made by lower level enforcement agents rather than experts in asylum adjudication).

The “unpublished” nature of this particular Second Circuit decision might lead one to conclude that the Article IIIs have lost interest in solving the problem, preferring to sweep it under the carpet as this pathetic attempt at a “below the radar screen” unpublished remand does. But, such timid “head in the sand” actions will not restore fairness and order to a system that now conspicuously lacks both! This dangerous, defective, unfair, and unprofessional abuse of our justice system needs to be “publicly called out!”

You can read the full Second Circuit unpublished remand here. https://www.ca2.uscourts.gov/decisions/isysquery/2a5d8920-2ab9-4544-9be6-882ac830fdeb/11/doc/20-212_so.pdf

And, lest you believe this is an “aberration,” here’s yet another “unpublished” example of the BIA’s shoddy and unprofessional work on life or death cases, forwarded to me by “Sir Jeffrey” Chase yesterday! https://www.ca2.uscourts.gov/decisions/isysquery/94e3eaee-b8da-446a-908a-a2f3b5b13ee7/1/doc/20-1319_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/94e3eaee-b8da-446a-908a-a2f3b5b13ee7/1/hilite/

“The agency failed to evaluate any of the country conditions evidence relevant to Oliva-Oliva’s CAT claim.” So how is this acceptable professional performance by the BIA? And why is it being “swept under the carpet” by the Second Circuit rather than “trumpeted” as part of a demand that Garland fix his dysfunctional due-process-denying system, NOW? 

Contrary to all the fictional “open borders nonsense” being pushed by the nativist right, the key to restoring order at the borders is generous, timely, efficient, professional granting of refuge to those who qualify, either by the Asylum Office or the Refugee Program. This, in turn, absolutely requires supervision, guidance, and review where necessary by an “different” EOIR functioning as a true “expert tribunal.” 

That would finally tell us who belongs in the legal protection system and who doesn’t while screening and providing accurate profiles of both groups. The latter essential data is totally lacking under the absurdist, racially motivated, “rejection not protection” program of Trump, much of which has been retained by Biden or forced upon him by unqualified righty Federal Judges. But, we’ll never get there without meaningful, progressive, due-process focused EOIR reform!

There will be no justice at the Southern Border or in America as a whole without radical, long overdue, due process reforms at EOIR!

🇺🇸 Due Process Forever!

PWS

08-03-22

Related posts:

  1. ⚖️🧑🏽‍⚖️JUDICIAL REVIEW — C.A. 2 — Brace Of Bad BIA Bobbles On Basics Brings “Culture Of Denial” Into Focus — Justice Will Continue To Be Illusive @ EOIR 👎🏽 Until Garland Steps Up & Replaces His Fatally Flawed BIA With Real Judges Who Are Progressive Practical Scholars In Immigration, Due Process, Human Rights, With A Firm Commitment To Bringing Racial & Gender Equity To Now-Disgraced Immigration Courts!🤮
  2. 🏴‍☠️BIA’S MISOGYNISTIC, ANTI-ASYLUM, IGNORE THE EXPERTS & THE EVIDENCE APPROACH 🤮 REBUKED AGAIN — 9th Cir. Slams BIA Big Time In Rodriguez Tornes v. Garland! — “Concurring, Judge Paez wrote that in addition to ignoring evidence that Rodriguez was targeted on account of her feminist political opinion, the Board also ignored extensive record evidence from a leading authority on domestic violence that directly rejected the Board’s premise that domestic violence is presumed to be motivated by nothing more than the private dynamics of a ‘personal relationship.’”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. ‘SIR JEFFREY” CHASE: Garland’s “First Steps” To Eradicate Misogyny & Anti-Asylum Bias @ EOIR Are Totally Insufficient Without Progressive Personnel Changes — Regulations Will Only Be Effective If Drafted By Progressive Human Rights Experts Of Which There Currently Are NONE @ DOJ Save For Some Immigration Judges In The Field Whose Expertise, Intellectual Integrity, & Moral Courage Has Been Ignored By Team Garland! — There Will Be No Gender, Racial, Or Immigrant Justice @ Justice As Long As Garland Mindlessly Lets “Miller’s Club Denial” Operate @ BIA! — Progressives Must Turn Up The Heat On Garland To Reform & Remake EOIR With Qualified Expert Judges & Dynamic, Independent, Progressive Leaders!

⚠️BIA’S GRUDGING ACCEPTANCE OF SUPREMES’ RULING ON “STOP TIME RULE” MASKS ATROCIOUS ANTI-ASYLUM PRECEDENT TARGETING INDIGENOUS REFUGEES! — Garland Ignores Bad Law, Anti-Immigrant Precedents Flowing From His Court!”🤮 — Matter of M-F-O-, 28 I&N Dec. 428 (BIA 2021)

https://www.justice.gov/eoir/page/file/1446396/download

“Floaters”
Garland, Mayorkas, and other Biden honchos appear unable to get beyond this “Stephen Miller vision” for legal asylum seekers. “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

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

“Inside Baseball”⚾️  — The human, administrative, and taxpayer costs of the BIA’s unwillingness to uphold the statute in the face of DHS and EOIR “Management” intransigence — and their disregard for clear warning signals from the Supremes — are unfathionable to anyone outside this totally dysfunctional and out of control system! See, e.g., https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-stop-time-rule-quebrado-cantor-v-garland.

Could there be any clearer example of the need to take this mess out of the DOJ and create a competent, expert, independent Article I Immigration Court with real judges?

The asylum/withholding portion of this decision appears to be an atrocious misconstruction and intentional misapplication of asylum law by the BIA!

In fewer than five minutes of “internet research,” I found three authoritative pieces of evidence that should have been sufficient to show an endemic, ongoing racial and psg persecution of Indigenous Guatemalans and a total failure of state protection. See, e.g., https://www.govinfo.gov/content/pkg/USCOURTS-ca6-18-03500/pdf/USCOURTS-ca6-18-03500-0.pdf;  https://monthlyreview.org/2020/09/01/a-violent-guatemala/; https://minorityrights.org/trends2018/guatemala/.

This, in turn, should long ago have been adequate for a BIA of better-qualified appellate judges who have asylum expertise and are willing to to stand up for the legal rights of asylum seekers to issue a precedent finding a “pattern or practice” of such persecution in Guatemala. See, e.g., 8 C.F.R. § 1208.13(b)(2)(iii)(A). 

With such a precedent, cases like this could be expeditiously granted at the Asylum Office or in focused Immigration Court hearings, instead of “kicking around the system” for more than three years and then being wrongly decided at both the trial and appellate levels. Wonder why our immigration system is a mess? Look no further than Garland’s anti-immigrant EOIR!

The panel’s conclusion that indigenous status wasn’t even “a reason” for gang persecution is preposterous — proof of institutional bias against asylum seekers, particularly those from the Northern Triangle!

The improperly and intentionally skewed asylum denial rates at our Southern Border feed the nativist fiction that asylum seekers are illegally seeking entry into the US. In reality, they appear to be victims of systemic racial, ethnic, and xenophobic bias fueled by both DHS and DOJ even under this Administration. 

We currently have no functioning legal asylum system at ports of entry, nor have we had one for several years. “Gimmicks” like “Remain in Mexico” and “Title 42” have illegally replaced our legal protection system. 

Why WOULDN’T folks seek refuge through irregular entry in such an insane situation? Who in their right mind wouldn’t? 

This system further generates bogus “apprehension” numbers used by DHS, DOJ, and politicos of both parties to generate false panic about the arrival of persons seeking legal status that we have unlawfully suspended! 

Many of these individuals deserve to be legally admitted and allowed to contribute to our society! Instead, they are demonized, demeaned, dehumanized, and otherwise mistreated by our Government.

Indeed, GOP politico-restrictionist-alarmists are already trying to inflame public opinion by raising the manufactured “specter” that a slow moving so-called “caravan” of unarmed, desperate, and vulnerable migrants seeking to apply for legal refuge from some of the most repressive and dangerous countries in the world are an existential threat to the security of what is supposed to be the most powerful nation on earth! Letter asking BIden to enforce laws at brder 11.4.21 What poppycock! 

They mischaracterize the group as having “nonexistent asylum claims.” But, how would they or anyone else know, since we currently have no system to fairly adjudicate such claims and no reliable information about the individual circumstances on which they are based? 

Instead of engaging in racially charged panic and lawless enforcement, why not just direct them to report to legal ports of entry where they could be properly screened by trained Asylum Officers in a prompt and fair manner? 400 well-trained Asylum Officers doing two cases per day could complete the screening in a matter of days or several weeks at most! 

Those who pass credible fear could be referred to Immigration Court in cooperation with legal aid and NGO groups to help them prepare and insure appearance. Represented asylum seekers appear for Immigration Court at a rate approaching 100%! Why wouldn’t an Administration truly interested in a fair and orderly asylum system concentrate on increasing representation  rather than imposing more “guaranteed to fail” enforcement-only gimmicks?

Those who do not pass credible fear could be returned, provided that can be done in a safe and humane manner, perhaps working with the UNHCR and other international aid organizations to insure safe and orderly acceptance in the home nations.

And, unlike the current lawless system, we would actually have some empirical information about the claims of those applying at the border. It seems likely that under a fair and legal application asylum law, many would have valid asylum claims. But, without a fair hearing system and more Immigration Judges and BIA judges who are experts in asylum law and will fairly apply it, who knows? Right now, everyone is just “guessing” about the potential merits the claims because we don’t now have, and haven’t for some years had, a fair system for deciding those individual cases!

Here’s a still-timely article from Professor Bill Hing (ImmigrationProf Blog) about how we are repeating our past mistakes of mistreating Central American asylum seekers. https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol17/iss2/5/

The same is true of Haitians seeking asylum. https://lawprofessors.typepad.com/immigration/2021/11/biden-is-replaying-a-forgotten-us-atrocity-against-haitian-refugees.html

An Administration unwilling to stand up for values, justice, and the rule of law for the most vulnerable among us doesn’t stand for much of anything at all. Maybe cowardice and lack of moral compass is the reason why Dems can’t govern and keep losing elections they should have won!

The GOP long ago “cornered the market” on dishonesty, immorality, and anti-democratic behavior. The Dems can gain nothing, and lose much, by emulating them!

🇺🇸Due Process Forever!

PWS

11-05-21

Related posts:

  1. 🛡⚔️👍🏼“SIR JEFFREY” CHASE — Garland’s Immigration “Judges” Pull The Ol’ “Bait & Switch” — They Only Are “Judges” When “OIL” Is Trying To Convince Ethically & Legally Challenged Article III Courts To “Defer” To EOIR Decisions — Otherwise, They Are Expected To Act Like DOJ ”Grundoons” Mindlessly Carrying Out The Executive’s Agenda Cloaked In Quasi-Judicial Disguise!
  2. 🇺🇸🏴‍☠️RACE IN AMERICA: CARRIE ROSENBAUM “GETS IT,” EVEN AS MAYORKAS, GARLAND, HARRIS & THE OTHER BIDEN HYPOCRITES PRETEND NOT TO:  “Immigration reform, and a more robust application of the Equal Protection doctrine to all those inside the country, and at our borders, is necessary to move towards meaningfully dismantling systemic racism.”
  3. WOW, HERE’S A SURPRISE: MANY KIDS FLEEING VIOLENCE IN THE NORTHERN TRIANGLE KNOW NOTHING ABOUT BIDEN BORDER POLICIES — They Are Just Trying To Save Their Lives!
  4. 🤮👎🏽ULTIMATE HIPOCRACY: EVEN AS AMERICA FINALLY CELEBRATES JUNETEENTH HOLIDAY, DRED SCOTT & INSTITUTIONALIZED RACIST DEHUMANIZATION REMAIN REALITIES FOR BLACKS & OTHER MIGRANTS OF COLOR AT EOIR & DHS — Imprisonment Without Trial, Bogus Bonds, Mistreatment In The New American Gulag, Jim Crow “Courts,” No Rule Of Law,  Still Realities For Those Of Color Exercising Legal Rights In Broken System!