"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.
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland! https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”
[Hats way off to Randy Olen!]
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You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:
How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system.
It makes cases like this — which couldand should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket.
This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General.
Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!
Garland’s Dedicated Courts: Deny and deport, deny and deport, deny and deport, deny and deport . . . . .” Creative Commons License
Transactional Records Access Clearinghouse
5,000 Asylum-Seekers Added to the Migrant Protection Protocols 2.0, Few Are Granted Asylum
During the last six months, over 5,000 asylum seekers have been required to remain in Mexico under the current implementation of the Migrant Protection Protocols (MPP)—also known as MPP 2.0—while awaiting their Immigration Court hearings. Cases in MPP are generally being completed within the 180-day time frame set by the administration, but the problem with low rates of access to attorneys and unusually low rates of asylum success that plagued the first implementation of MPP continue this year.
As a result of low representation rates and accelerated hearings, just 27 people out of the 5,100 asylum seekers in MPP 2.0 so far, have received asylum or some other form of relief. These 27 cases account for just 2.4 percent of the 1,109 MPP 2.0 cases which have been completed to date. By contrast, during the same period of FY 2022, fully half of all Immigration Court asylum decisions decided for people inside the United States resulted in a grant of asylum or other relief.
While MPP 1.0 under Trump had also been designed to attempt to expedite processing of these asylum cases, MPP 2.0 is intended to speed case completions even further. Under current guidelines, cases assigned to MPP should be completed within 180 days. The Biden administration has been largely successful in meeting this deadline. During December 2021, a total of 129 asylum seekers were assigned to MPP 2.0, which means that most of these cases are reaching their 180-day deadline now (or soon). For these initial 129 cases, over eight out of ten (81%) were completed at the end of May. Nonetheless, it may be difficult for the Court to maintain this same processing pace as the monthly total of new MPP court filings has steadily grown to over 2,000 in May 2022.
MPP 2.0 cases have not been evenly spread among hearing locations. Cases added to MPP 2.0 in December were primarily heard by the El Paso Immigration Court which received 109 cases. The El Paso MPP court currently has 923 cases assigned to it. By contrast, the MPP Brownsville Immigration Court has now been assigned 2,752 new cases—more than half (54%) of all MPP 2.0 assigned cases as of the end of May. The MPP Laredo, Texas (Port of Entry) Immigration Court has been assigned 404 MPP cases, and an additional 76 cases have been assigned to the Laredo Immigration Court. The MPP Court San Ysidro Port has received 386 cases so far.
It is still early in the implementation of MPP 2.0, and TRAC’s report on MPP 2.0 should be understood as a preliminary analysis However, these findings do raise concerns similar to MPP 1.0. Further detailed analysis will be warranted as more cases are added to the current implementation of the Migrant Protection Protocols.
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:
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The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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Garland’s performance on EOIR is disgraceful. Question is, what will advocates do about it?
Curiously, going into difficult midterms where every vote supposedly counts, the Biden Administration appears to have decided that they don’t need the support and votes of their base. They might well be following “Miller Lite” or “Miller Genuine” policies of abusing asylum seekers. But, I doubt they will be getting any votes from the “Miller Right!”
An interesting “strategy” to be sure. We’ll see how it works out!
“Record, what record? Here at the BIA, we don’t need no stinkin’ record to deny asylum! The assembly line would break down if we took time to look at all the evidence and research the law! It’s about ‘numbers,’ not ‘justice!’” https://www.flickr.com/photos/rasputin243/ Creative Commons License
“Tarlishi Emmanuel-Tata, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture. We GRANT the petition for review and REMAND for further consideration. … Emmanuel-Tata challenges both the BIA’s factual determinations and whether it gave his claims full and fair consideration. We begin by examining Emmanuel-Tata’s argument that the BIA failed to consider all the evidence. This argument relies on a BIA statement that the record “does not contain any country conditions evidence indicating that Anglophones are regularly subject to persecution,” and that “[t]he record does not contain any country conditions evidence indicating the type of punishment the respondent may face as a result of his criminal charges.” There is such evidence, though. … The significance of the overlooked evidence is clear. … Because the BIA erroneously found there was no record evidence about relevant country conditions, Emmanuel-Tata did not receive “meaningful consideration of the relevant substantial evidence supporting” his claims. See Abdel-Masieh, 73 F.3d at 585. We therefore reverse the BIA’s decision. We need not further consider the BIA’s factual determinations. The petition for review is GRANTED and we REMAND to the BIA for further consideration.”
[Hats off to Brian Plotts! Brian, make a motion to publish!]
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As any “immigration pro” knows, the DOJ has to work hard to lose immigration cases in the “ultra-conservative” 5th Circuit. But, even judges not very sympathetic to migrants don’t like being “played for fools” by a DOJ where “quality, integrity, and due process” definitely are “NOT job one.”
Highlighting the constant stream of bogus findings, “canned” decisions, ignored records, and chronic contemptuous sloppiness is a great way to for the NDPA to make inroads with even the most unsympathetic Circuit panels. While some Article III judges are willing to overlook the BIA’s endemic shortcomings, hiding behind the “bogus deference” doctrine, they might be less willing to “do the BIA’s dirty work for them.”
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”BIA Members Unwind After Harassing Another Expert, Overruling Circuit Court, & Aiding Their “Partners” At ICE In Demeaning Justice https://www.flickr.com/photos/rasputin243/ Creative Commons License
Granting Juan Mauricio Castillo’s petition for review of the Board of Immigration Appeals’ denial of his application for protective status pursuant to the Convention Against Torture, and remanding, the panel held that the Board erred in giving reduced weight to the testimony of Dr. Thomas Boerman, a specialist in gang activity in Central America and governmental responses to gangs.
Castillo is a former gang member with tattoos who fears torture by gangs and/or Salvadoran officials because of his former gang memberships, his criminal conviction, and his later cooperation with law enforcement against La Mara Salvatrucha or MS-13. In a prior petition, the same panel concluded that the immigration judge and the Board improperly discounted Dr. Boerman’s testimony.
The panel addressed two initial matters. First, the panel stated that the Board’s rejection on remand of the panel’s prior interpretation of the immigration judge’s decision was ill-advised, explaining that its prior disposition was not an advisory opinion, but a conclusive decision not subject to disapproval or revision by another branch of the federal government. Second, the panel rejected the Board’s reliance on Vatyan v. Mukasey, 508 F.3d 1179 (9th Cir. 2007), to support its conclusion that Dr. Boerman’s testimony should be given reduced weight, because Vatyan addressed an IJ’s
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
CASTILLO V. BARR 3
discretion to weigh the “credibility and probative force” of an authenticated document, whereas the issue in this case involved the testimony of an expert that the agency had ostensibly concluded was fully credible.
Even assuming the agency could accord reduced weight to Dr. Boerman’s testimony and declaration, the panel disagreed with the Board’s new justifications. First, the panel rejected the Board’s reliance on alleged inconsistencies regarding Dr. Boerman’s familiarity with Castillo’s prison gang, where Dr. Boerman explicitly wrote in his declaration that his comments on Castillo’s prison gang were based on facts provided by Castillo, and the Board did not cite any reason to doubt Castillo’s testimony regarding rival gangs.
Second, the panel disagreed with the Board’s conclusion that Dr. Boerman’s testimony did not warrant full weight because he did not submit a copy of a video referenced in his testimony, where the video was neither the sole nor primary basis for his opinion, and the Board failed to explain why the absence of one video diminished the weight of Dr. Boerman’s expert opinion, when his opinion had an independent factual basis.
Finally, the panel concluded that the Board’s decision to give Dr. Boerman’s opinion reduced weight, because it was not corroborated by other evidence in the record, was erroneous. The panel observed that the country report did provide support for Castillo’s claim, and it noted that Dr. Boerman’s expert testimony was itself evidence that could support Castillo’s claim.
The panel remanded to the Board, directing it to give full weight to Dr. Boerman’s testimony regarding the risk of
4 CASTILLO V. BARR
torture Castillo faces if removed to El Salvador. The panel explained that if the Board determines once again that Castillo is not entitled to relief, it must provide a reasoned explanation for why Dr. Boerman’s testimony is not dispositive on the issue of probability of torture. The panel further explained that once it gives full weight to Dr. Boerman’s testimony, the remaining issue for the Board is to determine whether Castillo has established the government acquiescence element of his CAT claim.
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Essentially, EOIR has been unethically misusing their authority to harass Dr. Boerman and respondents’ advocates by systematically teaming up with ICE to devalue and defeat their efforts. Remarkably, this is even though Dr. Boerman and the advocacy community are “busting their tails” trying to help the system function properly and achieve justice! How screwed up, perverted, and cowardly is that?
Obviously justice and a functioning system have been antithetical to this regime and their toadies at DOJ and EOIR. With the degradation of the DOS Country Reports by political hacks, expert testimony has become essential in most asylum cases. Disgraceful performances by EOIR, as in this case, undermine the system and add to the backlog.
This case should have been completed in a single hearing. The BIA’s open contempt for the Circuits and failure to send strong signals to IJs (and the dilatory litigators at ICE) about issues that clearly should be resolved in the respondent’s favor is a mockery of justice!
Put the experts from the NDPA in charge of EOIR! Replace the BIA with real judges from the NDPA — asylum, human rights, and due process experts who will courageously stand up for the rule of law and hold both Immigration Judges and ICE accountable for scofflaw performances (and resist improper political interference from the DOJ — regardless of Administration).
Judges who will re-establish judicial independence and stop flooding the Circuit Courts (and even the U.S. District Courts) with cases and issues that should be resolved in favor of respondents at the trial level, consistently and efficiently. That’s how to stop DHS’s and DOJ’s frivolous, unethical, anti-immigrant “litigation positions” in immigration matters that are bogging down our justice system at all levels.
That’s also how to cut, rather than astronomically increase, backlogs (along with drastic pruning of all the “deadwood” mindlessly and improperly piled onto the EOIR docket by Sessions, Barr, and an out of control ICE acting as an arm of “White Nationalist nation”). The backlogs can be reduced and eventually eliminated without stomping on anyone’s rights or adversely affecting “real” law enforcement — as opposed to the bogus (and fiscally irresponsible) version we have seen from DHS over the past four years.
Stop “churning” cases! Stop the “denial factory! Create a model, best judicial practices, due-process oriented court system of which we all can be proud! Grant asylum expeditiously and consistently to those who qualify for protection under Cardoza-Fonseca, Mogharrabi, Kasinga, and A-R-C-G- (after vacating the A-B- travesty and reissuing it as a precedent for clear grants in all similar cases)! Encourage the Asylum Offices to do likewise! Make “equal justice for all” part of the new Administration’s legacy!
Think of what a great “teaching tool” that will be for future generations! I always treated my “courtroom as a classroom,” teaching law, history, practical problem solving, best interpretations, and best practices. I can’t think of a more powerful “real life” teaching and doing tool for improving the future of American justice — from the “retail level” of the Immigration Courts to the failing Supremes.
Due Process Forever! A weaponized and dysfunctional EOIR, never!
It’s time for a sea change at EOIR. End the kakistocracy and the “malicious incompetence!” Time for action by the Biden Administration — not just hollow promises and more endless studies and discussions of what we already know and have known for years!
It’s not rocket science! The practical scholars and steadfast defenders of due process and democracy in the NDPA who can fix EOIR are out here and prepared to take over and hit the ground running for due process and fundamental fairness at EOIR! (Amazingly, those were once the goals and vision for EOIR, now trampled, degraded, mocked, and forgotten!)Leaving them on the sidelines again would be “governmental malpractice!” And we’ve already had more than enough of that!
Kangaroos https://www.flickr.com/photos/rasputin243/ Creative Commons License“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court
October 21, 2020
The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”
The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”
According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”
The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.
As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”
The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”
Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.
“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!
There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOPSenate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.
Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!
