"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”All In A Day’s Work — BIA Members Unwind After Ignoring Statute, Dissing Three Circuits, Screwing TPS Holders, Beating Up Unrepresented Respondent, & Aiding Their “Partners” At ICE In Demeaning Justice https://www.flickr.com/photos/rasputin243/ Creative Commons License
Matter of PADILLA RODRIGUEZ, 28 I&N Dec. 164 (BIA 2020)
BIA HEADNOTE:
(1) Where the temporary protected status (“TPS”) of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.
(2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.
For today’s BIA, it apparently doesn’t get any better than beating up on an unrepresented respondent who actually won before the Immigration Judge! Where was the “BIA Pro Bono Program” on this one?
It’s not rocket science: INA section 244(f)(4) says: “for purposes of adjustment of status under section 245 and change of status under section 248, the alien shall be considered as being in, and maintaining, lawful status as a nonimmigrant.”
So, clearly, an individual in TPS status who is eligible for permanent immigration can adjust statutus under INA section 245, right? Of course, unless you’re the BIA and stretching to find a way to deny. And, elevating the meanderings of the AAO over the considered opinions of three Circuit Courts of Appeals shows the level of intellectual honesty and scholarship on today’s BIA!
Now, lets look at the policy results produced by the BIA’s intentional misconstruction of the plain meaning of the statute.
First, it means that except in the 6th, 8th, and 9th Circuits, individuals in TPS status, basically long term residents who are going to be remaining, working, paying taxes, and raising families in the U.S., and who also are qualified to permanently immigrate (e.g., spouses of U.S. citizens) will be mindlessly barred from doing so.
But, wait, it gets even better! That’s only the case if they have themisfortune to live in a Circuit other than the 6th, 8th, or 9th. Of course, if they are able, they could move to one of those circuits to adjust.
Make sense? Only if you’re part of the “Clown Show of Denial.” Then, you ignore the statute, diss the Circuit Courts, and go out of your way to promote a non-uniform interpretation of the law that will screw contributing members of our society residing here legally and arbitrarily block them from achieving the permanent status to which they are entitled.
Now you can see what a difference replacing the “Clown Show” with real judges from the NDPA could make — both for the human lives and futures at stake and for sane, lawful, and fiscally efficient administration of our immigration laws!
REPEAT AFTER ME: Hey Hey, Ho Ho, Tell The Biden Team That The EOIR Clown 🤡 Show Has Got To Go!
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
(1) An alien’s status as a landowner does not automatically render that alien a member of a particular social group for purposes of asylum and withholding of removal.
(2) To establish a particular social group based on landownership, an alien must demonstrate by evidence in the record that members of the proposed group share an immutable characteristic and that the group is defined with particularity and is perceived to be socially distinct in the society in question.
(3) The respondent’s proposed particular social groups—comprised of landowners and landowners who resist drug cartels in Guatemala—are not valid based on the evidence In the record.
PANEL:MALPHRUS, Acting Chairman; CREPPY and HUNSUCKER, Appellate Immigration Judges
OPINION BY: Acting Chairman Judge Garry D. Malphrus
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I’ll leave a full analysis of this anti-asylum monstrosity to others more scholarly and patient. Here are a few “off the cuff” observations:
The BIA basically “blows off” contrary Circuit Court precedents. See, e.g., Córdoba v. Holder, 476 F. 3d 1106 (9th Cir. 2013) (wealthy educated landowners and businesspeople); N.L.A. v. Holder, 743 F.3d 425 (7th Cir. 2014) (landowners in. Colombia);
The BIA’s assertion that “landowners” must have “similar circumstances” conflates the requirements of a “particular social group” with “nexus.” Obviously, in some circumstances it won’t make any difference whether one is a big or small landowner, urban or rural. In other situations it might. If only certain landowners are persecuted, that is an issue of causation or “nexus,” not an element of the particular social group;
While “landownership” might not be “immutable,” it certainly is “fundamental to identity” in most situations. The BIA’s assertion to the contrary is absurd. Indeed, “landownership” was one of the keys to suffrage when our country was founded and has been one of the most clearly recognized and dearly held distinctions in human history. Even today, most individuals in the world who are fortunate enough to own land identify with it and are not likely to surrender it lightly;
The idea that a landowner should reasonably be expected to surrender his or her land is equally absurd, particularly in the context of surrendering it to drug cartels for their use. What truly perverted policy extremes the BIA engages in to avoid their responsibility to grant life-saving legal protection to the persecuted;
As pointed out in my “screaming headline,” throughout history, only religion or ethnicity might equal landownership as a basis for class identification, political standing, and persecution. The BIA’s obviously result-oriented decision in this case is both inane and ahistorical;
Don’t kid yourself! Notwithstanding some disingenuous suggestions to the contrary, no landowner will ever be recognized as within a “particular social group” and granted asylum under this decision. The BIA is encouraging Immigration Judges to “find any reason to deny” all such cases. And if the judge doesn’t deny it, the BIA will.
Will the Article IIIs continue to allow and facilitate these life-threatening perversions of the law, logic, facts, and history by the BIA and the Trump regime? Maybe.Maybe not. Only time will tell. But, history will record and “out” the twisted logic and intellectual dishonesty employed by the regime and the BIA to unlawfully deny protection to those in need.
For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.
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Go to the link for complete individual Immigration Judge asylum stats.
The idea that a “court” system is providing “fair and impartial” decisions toasylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!
Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.
That suggests that under a fair and impartial judicial system asylum seekerscould and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.
The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states.
Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremeshave taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.
Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again.
With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?
In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:
“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).
Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”
Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.
Due Process Forever; Corrupt, Complicit Federal Courts Never!
