"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.
The Round Table of Former Immigration Judges Statement on EOIR’s Prior Restraint on NAIJ Speech
As former Immigration Judges and BIA Board Members we strongly protest the unconstitutional prior restraint imposed by the Executive Office for Immigration Review (EOIR) which effectively silences the officers of the National Association of Immigration Judges (NAIJ) and prohibits them from providing information or engaging in advocacy involving the complex workings of our nation’s Immigration Court system. We call for immediate reversal of this misguided policy.
In late February 2024 EOIR advised NAIJ officers that they could not speak publicly without obtaining advance permission through the agency’s “”SET” (Speaking Engagement Team) process, a requirement which was never imposed before. This is a cumbersome, multistep process which requires Immigration Judges to seek permission from their supervisors, the SET unit, and sometimes even EOIR’s Ethics team and the Office of Policy. It provides no time frames for decisions nor any opportunity for review of adverse determinations. It is a process which is wildly incompatible with the practical realities involved in responding to media or congressional inquiries which often involve extremely short deadlines, sometimes mere hours or days. Mandating union officers use this process is a thinly disguised gag order.
This step is a dramatic departure from a precedent of more than 50 years, since NAIJ was established in 1973 and was never previously mandated to seek prior approval for appearances or speech. It ignores the uncontroverted fact that NAIJ officials scrupulously provide disclaimers indicating that they are not speaking on behalf of EOIR [or its parent, the Department of Justice (DOJ)] or articulating any position except that held by NAIJ members. It unfairly penalizes NAIJ officers who risk personal discipline for insubordination should they fail to comply but are then hampered in the duties owed to their union members when they remain silent.
NAIJ has played a pivotal role fostering the independence and increased professionalism of the Immigration Courts. It brought home to Congress the crucial function that IJs serve in the deportation and removal process, not as prosecutors but rather as neutral arbiters. This resulted in a change in job title from Special Inquiry Officer to Immigration Judge in 1996, with a concomitant enhanced special pay rate intended to broaden and improve the candidate pool for new judges. NAIJ was a crucial player in efforts to protect the independence of the Immigration
Courts in 2002 by leading the successful effort to keep the court independent from the newly created Department of Homeland Security despite strong opposition to that end by the administration and DOJ. At that time, NAIJ argued presciently that the establishment of an Article I Court was the only enduring way to safeguard the sanctity of these courts which hear “death penalty cases in a traffic court setting.” While NAIJ did not succeed in achieving that lofty goal then, legislation to do just that is currently pending in Congress, largely due to NAIJ’s tireless advocacy and coalition building. NAIJ’s voice in the media often stands alone explaining the practical implications of the complex workings of our immigration removal laws since DOJ eschews comments despite the American standard in jurisprudence which emphasizes transparency in its tribunals. NAIJ is the only spokesperson for IJs in the field, who have the first-hand view of court operations. Without NAIJ speech, no views from these benches in the trenches will be heard.
Perhaps worst of all, this policy deprives the American public of the views of an important, informed group which can shed light on the realities of the implementation of immigration laws and policy at a time when public scrutiny is at an all-time high and accurate factual information scarce. Under this new policy, NAIJ officers cannot even speak at educational or professional seminars or other public events without DOJ approval and instruction as to precisely what they can or cannot say.
Government employees do not surrender their First Amendment rights when they take office. To the contrary, their duty to educate the public is heightened and their voice enhanced by their informed opinions and expertise.
We urge EOIR to restore NAIJ’s important voice and revoke this new policy. ###
The Round Table of Former Immigration Judges is composed of 56 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. Members of our group have served in training and management roles at EOIR. Several of our members were officers and leaders in NAIJ and were instrumental in guiding NAIJ to accomplish the achievements described above. Combined we have decades of experience and unique expertise in the immigration court system and the field of immigration law.
For media inquiries, please contact Hon. Dana Leigh Marks (ret.) at danamarks@pobox.com or (415) 577-9831
3/25/24
Hon. Dana Leigh Marks U.S. Immigration Judge (Retired) San Francisco Immigration Court Past President, National Association of Immigration Judges, Member Round Table of Former Immigration JudgesKnightess of the Round Table
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Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
MINI-ESSAY: NAIJ IS AN ESSENTIAL FORCE FOR JUDICIAL INDEPENDENCE
By Judge (Ret.) Jeffrey S. Chase
March 25, 2024
In Matter of A-R-C-G-, the BIA at footnote 16 recognized that AILA, UNHCR, and CGRS in their amicus briefs had all argued that gender alone should be sufficient to constitute a valid PSG in the matter. However, the Board chickened out, stating that because they were recognizing the narrower group stipulated to by DHS, “we need not reach this issue.”
I think the real proof of the validity of gender per se as a PSG is found in what happened after Sessions issued Matter of A-B-. With A-R-C-G- vacated, IJs all around the country began issuing detailed written decisions recognizing gender plus nationality, and explaining why such group met all of the legal requirements. This was done by IJs with very different grant rates, across different circuits, and included at least one ACIJ. And remember, this was done under an AG that clearly didn’t want IJs to reach that conclusion.
Which allows me to segue into our next issue: a major reason that IJs felt empowered to issue those decisions that were clearly not to the AG’s liking was due to the decades of effort by the NAIJ on behalf of judicial independence. Our public statement, prepared by our esteemed colleague Judge Dana Marks with input from others in our group, criticizing EOIR’s recent gag order on NAIJ officers, who for the first time will now be required to request agency permission to speak publicly, is a powerful reminder of the essential role played by NAIJ in protecting judicial independence, promoting due process and fundamental fairness, and, ultimately, saving lives of those seeking justice from our nation.
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Thanks to Dana, “Sir Jeffrey,” and all our other wonderful Round Table colleagues for speaking out so forcefully in favor of due process for all and judicial independence!
“Tough noogies, ladies, suck it up and accept your fate,” say Federal Judges Southwick, Jones, and Oldham of the 5th Cir! Amazing StoriesArtist Unknown, Public domain, via Wikimedia CommonsNo “particular social group” here says 5th Circuit Judge Southwick and his buddies Jones and Oldham. Just a little “good old fashioned trial by ordeal.” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Toxic Trio of “America’s Worst & Most Cowardly Judges” sticks it to Salvadoran refugee woman who survived domestic violence in country where femicide is rampant and uncontrolled by corrupt and inept government.
Lopez Perez v. Garland, 5th Cir., 06-02-22, published
BEFORE:Edith Jones (Reagan), Andrew Oldham (Trump), and Leslie H. Southwick (Bush II) Circuit Judges
OPINION: Judge Southwick
Lopez-Perez argues here that the IJ erred under Matter of A-R-C-G- by concluding that she had not established a nexus between her persecution and her social group. Further, she argues that the IJ incorrectly decided that the government of El Salvador was willing and able to protect her.2 These issues were identified in her Notice of Appeal and are preserved for our review here.
It is true that the IJ concluded that Lopez-Perez had not demonstrated the requisite nexus and further that she had not shown that the government was unable or unwilling to help her. Although the IJ’s analysis was cursory, we nonetheless conclude that his decision must be upheld because remand would be futile. Jaco, 24 F.4th at 406. The IJ intimated that Lopez-Perez’s proffered social groups — “Salvadoran women in domestic relationships who are unable to leave; or Salvadoran women who are viewed as property by virtue of their position in a domestic relationship” — were cognizable.
2 Lopez-Perez also argues for the first time that we should remand to the IJ for consideration in light of intervening decisions in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018) and Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018), aff’d in part, rev’d in part sub nom. Grace v. Barr, 965 F.3d 883 (D.C. Cir. 2020). We decline this invitation. In addition to the fact that this argument was not raised in her Notice of Appeal, Matter of A- B- has been overruled, see A-B- III, 28 I. &. N Dec. 307 (Att’y Gen. 2021), and this court specifically rejected Grace in Gonzales-Veliz, 938 F.3d at 233–34. See also Meza Benitez v. Garland, No. 19-60819, 2021 WL 4998678, at *4 (5th Cir. Oct. 27, 2021) (explaining this Circuit’s rejection of Grace).
7
Case: 20-60131 Document: 00516340524 Page: 8 Date Filed: 06/01/2022
No. 20-60131
We have disagreed, holding that circularly defined social groups are not cognizable. See id. at 405; accord Gonzales-Veliz, 938 F.3d at 226. Indeed, the social groups identified in Jaco are nearly identical to those claimed by Lopez- Perez: “Honduran women who are unable to leave their domestic relationships . . . and Honduran women viewed as property because of their position in a familial relationship.” Jaco, 24 F.4th at 399. Because the IJ is bound to follow the law of this circuit on remand, he would be forced to conclude that Lopez-Perez’s social groups were not cognizable, thus ending the analysis. See In re Ramos, 23 I. & N. Dec. 336, 341 (BIA 2002) (noting that the BIA is “unquestionably bound” to follow circuit court rulings).
We DENY the petition for review.
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It’s worthy of note that neither party challenged the propriety of the “particular social group!” So, this panel actually went beyond the issues before them to “stick it to” this abused refugee woman by gratuitously rejecting a well-established formulation of a “particular group” that has been the basis for granting protection in literally thousands of cases going back over two decades. (I note that even before A-R-C-G-, in Arlington the DHS Counsel routinely accepted this formulation of a “PSG” based on the so-called “Martin Memo” from DHS.)
Perhaps, that’s because even this panel acknowledged that the IJ’s “nexus analysis,” the actual ground of denial was “cursory.” In other words, this vulnerable women sought legal protection only to be shafted by poorly qualified Federal Judges at every level — the Immigration Court, the BIA, and the Fifth Circuit!
Here’s what Wade Henderson, then President and CEO of the Leadership Conference on Civil and Human Rights had to say about Judge Leslie H. Southwick in opposition to his confirmation:
Given the tremendous impact that federal judges have on civil rights and liberties, and because of the lifetime nature of federal judgeships, no judge should be confirmed unless he or she demonstrates a solid commitment to protecting the rights of all Americans. Because Judge Southwick has failed to meet this burden, we must oppose his confirmation.
Here’s what the progressive group “Suit Up Maine” had to say about Judge Andrew Oldham at the time of his confirmation:
ANDREW OLDHAM: Confirmed by the Senate on July 18, 2018. Collins voted YES; King voted NO. Nominated to be federal judge for the 5th Circuit Court of Appeals, Oldham is young, aggressively conservative, and has been involved in controversial litigation that emphasized ideology over the law. Oldham has worked on cases aimed at limiting reproductive rights, challenging the Affordable Care Act, challenging California’s law requiring good cause for concealed carry of firearms, and challenging habeas rights, all of which were ultimately unsuccessful. He defended Texas laws that limited women’s access to abortions that were ultimately determined by the Supreme Court to put “undue burden” on women’s right to choose. His challenge to the Affordable Care Act based on the “Origination Clause” of the Constitution was dismissed by the 5th Circuit for lack of standing. He attempted to barr the use of habeas corpus claims by two plaintiffs, but appeals courts allowed the claims. He also filed an amicus brief on behalf of multiple states (including Maine) using the Second Amendment to challenge a California law requiring good cause for concealed carry of firearms. The 9th Circuit ruled that the Second Amendment does not protect a right to concealed carry of firearms. Additionally, Oldham was involved in challenging the EPA’s greenhouse gas rules under the Clean Air Act, and he defended Texas campaign finance laws that were being challenged by multiple nonprofits and political committees under the First Amendment. His record of unsuccessful attempts to shape the law according to his own conservative ideology suggests that this bias is likely to accompany him to the federal bench.
All these fears, criticisms, and predictions of bias have proved to be all too well-founded in the mal-performance of this “Toxic Trio” of far right ideologues.
“Heard (not Amber) on the street:
“So the one BIA precedent in the past 20 years that actually recognized a PSG as valid isn’t worthy of Chevron deference, but A-B- was?!!”
“No more judicial restraint? Why is DOJ not changing position and or dropping these cases?”
“The 5th Circuit decision claims to direct all IJs in the 5th NOT to apply ARCG. And, most 5th Circuit IJs are high deniers anyway, so they don’t exactly need encouragement.”
“Perhaps better IJs could think of creative ways to work around the 5th’s decision. But, they don’t exist in the 5th Circuit in Garland’s EOIR.”
“It also shows the problems caused by Garland’s failure to “redo” the BIA and the IJ corps on “Day 1.” By now, it’s too late.”
Unqualified, far-right Federal Judges, egged on and supported by Stephen Miller and GOP State AGs, have basically usurped the power of Congress and the Executive to set immigration policies. There is lots of contempt for humanity, racism, misogyny, religious intolerance, and disrespect for true individual liberty driving their vile and illegal agenda.
The Constitutional rights of all Americans and the future of our democracy is at stake here. Will enough folks wake up and resist this takeover before it ‘s too late? TBD!
There is more helpful, practical guidance in Judge Liebmann’s “two-pager” than in most BIA precedents. So, why isn’t this a precedent?
A.G. Garland overruled Session’s abominable, wrong-headed precedent nearly one year ago. Yet, there has been no further guidance from the BIA on the meaning of the “reinstated A-R-C-G-.” Nor, have the so-called “gender-based regulations” ordered by Biden and referenced by Garland ever seen the light of day.
Meanwhile, there are many cases like this out there in the backlog. Most of them could be granted with proper guidance and supervision from a “Better BIA.” No wonder the backlog continues to grow!
My prediction that the “ascension” (she was a “mere TBM” at the time of this particular decision) of Judge Liebmann to join Judge Saenz on the BIA would be a “breath of fresh air” for practitioners appears to be gaining at least some traction. But, it’s going to take more than two well-qualified judges to pull the BIA out of its current “death spiral.”
*Cover photo by photojournalist Guillermo Martinez shows a boy in El Salvador wearing a protective mask from his home during a COVID-19 lockdown. Photo credit: Guillermo Martinez/APHOTOGRAFIA/ Getty Images
New Report: Dual Crises
Gender-Based Violence and Inequality Facing Children and Women During the COVID-19 Pandemic in El Salvador, Guatemala, and Honduras
Gender-based violence has long been one of the main drivers of migration from Central America to the United States. Widespread violence, including sexual abuse, human trafficking, and violence in the home and family, combined with a lack of access to protection and justice forces children and women to flee in search of safety. Drawing on existing research and interviews with children’s and women’s rights experts, this report lays out how the COVID-19 pandemic has exacerbated already pervasive forms of violence against children and women in Central America, as well as the deeply entrenched gender inequality that leaves children and women even more vulnerable to violence.
Successful implementation of the U.S. Strategy for Addressing the Root Causes of Migration in Central America must start by acknowledging that gender-based violence is a primary driver of migration and includes most violence against children.
Obviously, mindless, failed enforcement and deterrence-only policies that tell women and children to “suffer and die in place” rather than flee and seek asylum are absurdly out of touch with the realities of both human migration and the real situation in the Northern Triangle. This report shows that increased flight from the Northern Triangle probably has more to do with the aggravating effects of the pandemic on the already untenable situation of many women and children in the Northern Triangle than it does on any policy pronouncements, real or imagined, on the part of the Biden Administration.
An honest policy that recognizes the reality that gender-based persecution is a major driver of forced migration in the Northern Triangle would go a long way toward addressing the largely self-created situation at our Southern Border.
As many of us keep saying, to no visible avail, asylum isn’t a “policy option” for politicos and wonks to “discuss and debate.” It’s a legal and moral requirement, domestically and internationally, that we are currently defaulting upon!
Wonder why “democracy is on the ropes” throughout the world right now? Perhaps, we need look no further than our own horrible example!
A robust overseas refugee program in the region and a uniform, consistent, timely policy of granting asylum to qualified applicants applying at ports of entry at our borders would be a vast improvement.
Sure, it would undoubtedly result in the legal immigration of more refugees and asylum seekers. That’s actually what refugee and asylum laws are all about — an important and robust component of our legal immigration system.
Although our needs are not actually part of the “legal test for asylum,” the fact is, we need more legal immigrants of all types in America right now.
It should be a win-win for the refugees and for America. So why not make it happen, rather than continuing failed policy approaches that serve nobody’s interest except nativist zealots trying to inflame xenophobia for political gain?
An additional point: On February 2, 2021, to great ballyhoo, President Biden issued Executive Order 14010. A key provision of that order required that:
(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in 8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
270 days have long passed. In fact, its been more than 300 days since that order. Yet, these regulations are nowhere in sight. Perhaps, that’s a good thing.
This doesn’t come as much of a surprise to “us old timers” who have “hands on” experience with the unsuitability of the DOJ regulation drafting process for this assignment. Indeed, this assignment is actually several decades “overdue,” having originally been handed out by the late former Attorney General Janet Reno prior to her departure from office in January 2020!
The problem remains lack of expertise. With the possible exception of Lucas Guttentag, I know of nobody at today’s DOJ who actually has the necessary experience, expertise, perspective, and historical knowledge to draft a proper regulation on the topic. Past drafts and proposals have been disastrous, actually seeking to diminish, rather than increase and regularize, protections for vulnerable women and others facing persecution on account of gender-based particular social groups.
Indeed, one proposal was even used by OIL as an avenue in attempting to “water down” the all-important, life saving “regulatory presumption of future persecution arising out of past persecution!” Talk about perversions of justice at Justice! Why? Because OIL had suffered a series of embarrassing, ego-deflating setbacks from Article III Courts calling out the frequent failure of the BIA and IJs to properly apply the basics of the presumption. Sound familiar?
At DOJ, the “normal solution to lack of expertise and competence” is to simply eliminate expertise and competence as requirements! In many ways, “good enough for government work” has replaced “who prosecutes on behalf of Lady Justice” as the DOJ’s motto!
It’s also yet another reason why the DOJ is a horribly inappropriate “home” for the U.S. Immigration Courts!
Atorney General Merrick B. Garland Official White House Photo Public Realm
The Attorney General has issued a decision in Matter of Cruz-Valdez, 28 I&N Dec. 326 (A.G. 2021).
(1)Matter of Castro‑Tum, 27 I&N Dec. 271 (A.G. 2018), is overruled in its entirety.
(2) While rulemaking proceeds and except when a court of appeals has held otherwise, immigration judges and the Board should apply the standard for administrative closure set out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W‑Y‑U‑, 27 I&N Dec. 17 (BIA 2017).
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Sessions’s Castro-Tum abomination had to be one of the stupidest and most maliciously incompetent aspects of his White Nationalist, anti-asylum, anti-due-process agenda! Not surprisingly, that decision and the illegal attempt to convert it into a regulation have mostly been losers in the Article III Courts.
After four years of virtually unrelenting illegality, mismanagement, and outright idiocy at DHS and DOJ, that has caused “Aimless Docket Reshuffling” and generated ever-mushrooming court backlogs, finally some much-needed and long overdue teamwork and reasonability in restoring to Immigration Judges and the parties the necessary tools for rational, cooperative docket management. Presumably, the hundreds of thousands of cases “waiting in the wings” to be “re-docketed” pursuant to “Sessions’s folly” can now remain administratively closed or be “re-closed” and removed from the EOIR docket!
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Along those same lines, “Sir Jeffrey” Chase reports some more good news:
More Good News!
Ms. A-B- (i.e. the respondent in Matter of A-B-) was granted asylum yesterday.The BIA granted pursuant to a joint motion from DHS and respondent’s counsel to grant asylum.
It took far too long, but justice prevailed.
Best, Jeff
That’s the type of cooperative action among the parties and EOIR that, if repeated on a larger scale, could restore functionality and some semblance of justice to our broken Immigration Courts!
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Also, many congrats to my friend Karen Musalo and her team at the Center for Gender and Refugee Studies at Hastings Law for their outstanding, persistent, and ultimately successful defense of Ms. A-B- against Sessions’s misogynistic “war on asylum seekers of color.”
It’s a telling commentary that finally getting the law back to where it was in 2016,“pre-Sessions,” now seems like a major victory! Just think of what might have been accomplished if all the effort expended on combatting the Trump immigration kakistocracy’s illegality, nonsense, and wasteful gimmicks had instead been devoted to advancing and promoting due process and fundamental fairness for all persons in America!
“Given the BIA’s repeated reliance on A-B-, briefing on the effect of A-B-’s overruling is necessary. We remand to the BIA to reconsider Corea’s asylum claim in the first instance, this time under pre-A-B- caselaw.”
Bring in progressive immigration experts at the BIA and the Immigration Courts;
Generate long-overdue positive precedents on granting asylum to those persecuted by domestic violence and other forms of gender-based persecution.
Consequently, these remands (of many cases that should have been granted years ago) are likely to be yet another “Aimless Docket Reshuffling” disaster. The BIA was “all over the place” on A-R-C-G- domestic violence cases even prior to Session’s racist, misogynistic, intellectually dishonest atrocity in A-B-. Without a better qualified, courageous, expert BIA committed to due process and positive precedents on how to efficiently recognize and grant “gender-based” asylum cases, the backlog-building, due-process-denying, equal-justice-eroding deadly farce known as “refugee roulette” @ EOIR will continue!🤮☠️
Tell Garland you’ve had (more than) enough. Fix EOIR with real progressive judges and competent judicial (not bureaucratic) administrators! 🇺🇸 Due Process Forever!
On June 16, Attorney General Merrick Garland finally, mercifully vacated three decisions that formed a key part of the Trump administration’s unrelenting attack on the law of asylum.1 Matter of A-B-, issued by Jeff Sessions in June 2018, took aim in particular at victims of domestic violence.2 Matter of L-E-A-, issued the following year by William Barr, sought to undermine protection for those targeted by gangs due to their familial ties.3 And on January 14, 2021, six days from the end of the Trump Administration, acting A.G. Jeffrey Rosen issued a second decision in A-B-, gratuitously criticizing the method for determining nexus in asylum claims employed by the U.S. Court of Appeals for the Fourth Circuit, while conveniently evading that court’s review of the original decision in the case through remand.4
Garland’s action restores the law to where it stood prior to June 11, 2018, but only for the time being. Proposed rules on the subject (which Garland referenced) are due by October 30, when they will first be subjected to a period of public comment. If final rules are eventually published, it will occur well into next year.
As we sigh in collective relief and celebrate the first steps towards correcting our asylum laws, let’s also take note of the imperfect place in which the case law stands at present.
As to domestic violence claims, the BIA’s 2014 decision in Matter of A-R-C-G- (which Matter of A-B- had vacated) has been restored as binding precedent.5 That decision was issued at a time when (as now) regulations addressing particular social groups were being contemplated by DHS and EOIR.6 While A-R-C-G- was an extremely welcome development, the Board used it to recognize a rather narrowly-defined group: “married women in Guatemala who are unable to leave their relationship.” In a footnote to the decision, the Board declined to address the argument of several amici (including UNHCR) that a particular social group may be defined by gender alone. Although A-R-C-G- led to many grants of asylum, some immigration judges relied on the limited scope of the group’s definition to deny claims involving slightly broader variations, in particular, where the victim was not legally married, but nevertheless in a domestic relationship that she was unable to leave. While the BIA reversed some of those denials in unpublished decisions, it declined to speak to the issue through binding precedent.
As to Matter of L-E-A-, Garland’s recent action returns us to the BIA’s original opinion in that case.7 While the decision acknowledged that families constitute particular social groups (a point that was not in dispute, having been universally recognized for some 35 years and stipulated to by DHS), the BIA still denied asylum by invoking a legally incorrect standard for establishing nexus that it has continued to apply in all family-based asylum claims.
For these reasons, the content of the forthcoming regulations will be extremely important in determining the future of asylum in this country. While a return to the test for social group cognizability expressed in the BIA’s 1985 precedent in Matter of Acosta tops most regulation wish lists, I will focus the discussion here on a couple of more specific items necessary to correct the shortcomings of Matter of A-R-C-G- and Matter of L-E-A-.
First, the regulations need to explicitly recognize that a particular social group may be defined by gender alone. In its 2002 Gender Guidelines, UNHCR identified women “as a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men,” and whose “characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.”8 However, over the nineteen years since those guidelines were issued, the BIA has consistently avoided considering the issue.
The peril of defining gender-based groups in the more narrow manner employed by the BIA has been addressed by two distinguished commentators, who explain that such practice results in “constant re-litigating of such claims,” sometimes creating “an obstacle course in which the postulated group undergoes constant redefinition.”9 And of course, that is exactly what has happened here, as A-R-C-G- gave way to A-B-, which led to differing interpretations among different courts until Garland’s recent reset. The above-mentioned commentators further decried the “nitpicking around the margins of the definition” resulting from the narrow approach when the true reason for the risk of persecution to the applicant “is simply her membership in the social group of ‘women.’”10 Regulations recognizing gender alone as a particular social group would thus provide clarity to judges and asylum officers, eliminate the wastefulness of drawn out litigation involving “nitpicking around the margins,” and bring our laws into line with international standards.
But as L-E-A- demonstrates, recognition of a group alone does not guarantee asylum protection. In order for a group’s recognition to be meaningful, the regs must also address an ongoing problem with the BIA’s method for determining nexus, or whether persecution is “on account of” the group membership.
The BIA is accorded deference by Article III courts when it reasonably interprets immigration laws, provided that the meaning of the language in question is ambiguous. However, the “on account of” standard included by Congress in defining the term “refugee” is quite clear; its meaning is long established, and in fact, is not particular to immigration law.
The Supreme Court referenced this standard last year in a non-immigration case, Bostock v. Clayton County. The Court explained that the test
incorporates the “‘simple’” and “traditional” standard of but-for causation…. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause….In other words, 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.11
In a 2015 decision, the U.S. Court of Appeals for the Fourth Circuit applied this exact test in the asylum context to conclude that persecution was on account of family, determining that the petitioner’s “relationship to her son is why she, and not another person, was threatened with death if she did not allow him to join Mara 18.”12 But for some reason, the BIA has felt entitled to reject this established standard outside of the Fourth Circuit in favor of its own excessively restrictive one.
Had the proper test for nexus been employed in L-E-A-, asylum would have been granted. Under the facts of that case, once the familial relationship is removed from the equation, the asylum-seeker’s risk ceases to exist. However, the BIA instead imposed an incorrect test for nexus requiring evidence of an “animus against the family or the respondent based on their biological ties, historical status, or other features unique to that family unit.”13
As a former circuit court judge, Garland is particularly qualified to recognize the error in the Board’s approach, as well as the need to correct its course. The problem is compounded by the particular composition of the BIA at present. For example, of the ten immigration judges who were promoted to the BIA during the Trump administration, nine denied asylum more than 90 percent of the time (with the tenth denying 85 percent of such claims). Three had an asylum denial rate in excess of 98 percent.14
This matters, as those high denial rates were achieved in part by using faulty nexus determinations to deny asylum in domestic violence claims, even before the issuance of Matter of A-B-. This was often accomplished by mischaracterizing the abuse as merely personal in nature, referencing only the persecutor’s generally violent nature or inebriated state. The analysis in those decisions did not further examine whether gender might also have been one central reason that the asylum seeker, and not someone else, was targeted.
One BIA Member appointed under Trump recently found no nexus in a domestic violence claim by concluding that the persecutor had not targeted the asylum seeker because of her membership in the group consisting of “women,” but rather because she was his woman. There is no indication in the decision that the Board Member considered why the persecutor might view another human being as belonging to him and lacking the same rights he seems to enjoy. Might it have been because of her gender?
Without a correction through published regulations, there is little reason to expect different treatment of these claims moving forward. Let’s hope that the Attorney General views his recent action as only the first steps on a longer path to a correct application of the law.
Copyright 2021, Jeffrey S. Chase. All rights reserved.
The regulations under consideration at that time were never issued.
27 I&N Dec. 40 (BIA 2017) (“L-E-A- I”).
UNHCR, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002) at para. 30.
James C. Hathaway and Michelle Foster, The Law of Refugee Status, Second Edition (Cambridge University Press, 2014) at 442.
Hathaway and Foster, supra.
Bostock v. Clayton County, 140 S.Ct. 1731, 1739 (2020).
Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).
Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.
Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!
The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.
There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!
Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.
Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis.
No regulation can bring decisional integrity and expertise to a body that lacks both!
Any progressive who thinks Garland is going to solve the problem @ EOIR without “outside intervention” should keep this nifty “five month snapshot of EOIR under Biden” in mind:
Progressive judges appointed to BIA: 0
Progressive judges appointed to Immigration Court: 0
Progressives installed in leadership positions @ EOIR permanently or temporarily: 0
Billy Barr Selected Immigration Judges Appointed: 17
“Miller Lite” holdover individuals still holding key positions @ EOIR: many (only two removed to date)
Number of BIA precedents decided in favor of respondent: 2
Number of BIA precedents decided in favor of DHS: 9
That’s right, folks:Billy Barr and Stephen Millerhave had more influence and gotten more deference from Garland at EOIR than have the progressive experts and advocates who fought tirelessly to preserve due process and to get the Biden Administration into office. How does that a make sense?
“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Finally vacating two grotesquely wrong anti-female, anti-asylum precedents hasn’t ended the “Miller Lite Unhappy Hour” for migrants and their advocates at Garland’s foundering DOJ!
Progressives, advocates, and NGOs must keep raising hell until we finally get the “no-brainer,” long overdue, obvious, personnel, legal, structural, institutional, and cultural changes at EOIR that America needs! Waiting for Judge Garland to get around to it is like “Waiting for Godot!” Perhaps worse — I don’t recollect that anyone died waiting for Godot!
🇺🇸Due Process Forever! The BIA Denial Club, Never!🏴☠️
The U.S. government on Wednesday ended two Trump administration policies that made it harder for immigrants fleeing violence to qualify for asylum, especially Central Americans.
Atty. Gen. Merrick Garland issued a new policy saying immigration judges should cease following the Trump-era rules that made it tough for immigrants who faced domestic or gang violence to win asylum in the United States. The move could make it easier for them to win their cases for humanitarian protection and was widely celebrated by immigrant advocates.
“The significance of this cannot be overstated,” said Kate Melloy Goettel, legal director of litigation at the American Immigration Council. “This was one of the worst anti-asylum decisions under the Trump era, and this is a really important first step in undoing that.”
Garland said he was making the changes after President Biden ordered his office and the Department of Homeland Security to draft rules addressing complex issues in immigration law about groups of people who should qualify for asylum.
Gene Hamilton, a key architect of many of then-President Trump’s immigration policies who served in the Justice Department, said in a statement that he believed the change would lead to more immigrants filing asylum claims based on crime and that it should not be a reason for the humanitarian protection.
. . . .
In the current fiscal year, people from countries such as Russia and Cameroon have seen higher asylum grant rates in the immigration courts than those from El Salvador, Guatemala and Honduras, the data show.
One of the Trump administration policies was aimed at migrants who were fleeing violence from nonstate actors, such as gangs, while the other affected those who felt they were being targeted in their countries because of their family ties, said Jason Dzubow, an immigration attorney in Washington who focuses on asylum.
Dzubow said he recently represented a Salvadoran family in which the husband was killed and gang members started coming after his children. While Dzubow argued they were in danger because of their family ties, he said the immigration judge rejected the case, citing the Trump-era decision among the reasons.
Dzubow welcomed the change but said he doesn’t expect to suddenly see large numbers of Central Americans winning their asylum cases, which remain difficult under U.S. law.
“I don’t expect it is going to open the floodgates, and all of a sudden everyone from Central America can win their cases. Those cases are very burdensome and difficult,” he said. “We need to make a decision: Do we want to protect these people?”
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Read the full article at the link.
You know for sure you’re doing the right thing when anti-asylum shill and Stephen Miller crony Gene Hamilton criticizes it!
I tend to agree with my friend Jason that under present conditions, asylum cases for women refugees from Central America are likely to continue to be a “tough slog” at EOIR. The intentionally-created anti-asylum, misogynist, anti-Latino, anti-scholarship, anti-quality, anti-due-process culture at EOIR that emerged under Sessions and Barr isn’t going to disappear overnight, particularly the way Judge Garland is approaching it. He needs to “get out the broom,🧹 sweep out the current BIA and the bad, anti-asylum judges, get rid of ineffective administration, and bring in human rights and due process professionals to get this system operating again!
Jason, for one, would be an outstanding judicial choice for building a functioning, fair, efficient Immigration Court; one that would fulfill the long-abandoned vision of “through teamwork and innovation, being the world’s best tribunals guaranteeing fairness and due process for all.” Under the Trump regime, EOIR was the antithesis of that noble vision!
Cases such as that described by Jason (incorrectly decided by the Immigration Judge) utilizing A-R-C-G- and “family friendly” precedents from the Fourth Circuit were usually well-represented and well-prepared by attorneys like Jason, Clinics, and NGOs like CLINIC, CAIR Coalition, Human Rights First, and Law School Clinics. After review by ICE Counsel, many were candidates for my “short docket” in Arlington where asylum could easily be granted based on the documentation and short confirming testimony.
To their credit, even before the BIA finally issued A-R-C-G-, the Arlington Chief Counsel’s Office was not opposing well-documented asylum grants based on domestic violence under what was known as the “Martin Brief” after former DHS/INS Senior Official, renowned immigration scholar, and internationally recognized asylum expert, now emeritus Professor David A. Martin of UVA Law. I remember telling David after one such case that his brief was still “saving lives” even after his departure from DHS and return to academia.
Professor (Emeritus) David A. Martin UVA Law PHOTO: UVA Law
Rather than building on that real potential for efficiency, cooperation, quality, and due process, under Sessions those things that were working at EOIR and represented hope and potential for future progress were maliciously and idiotically dismantled. From the outside, throughout the country, I saw DV cases that once would have been “easy short docket grants” in Arlington require lengthy hearings and often be incorrectly decided in Immigration Court and the BIA. Sometimes the Circuits corrected the errors, sometimes not.
At best, what had been a growing census around recognizing asylum claims based on DV became a “crap shoot” with the result almost totally dependent on what judges were assigned, what Circuit the hearing was held in, and even the composition of the Circuit panel! And, of course, unrepresented claimants were DOA regardless of the merits of their cases. What a way to run a system where torture or death could be the result of a wrong decision!
But, it doesn’t have to be that away! Experts like Jason and others could get this system functioning fairly and efficiently in less time than it took Sessions and Barr to destroy it.
However, it can’t be done with the personnel now at DOJ and EOIR Headquarters. If Judge Garland wants this to function like a real court system (not always clear to me that he does), he needs to recruit and bring in the outside progressive experts absolutely necessary to make it happen. At long last, it’s time for “Amateur Night at the Bijou” to end its long, disgraceful, debilitating “run” @ EOIR!
Time for this long-running show at DOJ/EOIR to end! PHOTO: Thomas Hawk Creative Commons Amateur Night
UNHCR welcomes US decision to restore protections from gang and domestic violence
UNHCR, the UN Refugee Agency, welcomes the U.S. government’s decision announced 16 June to reverse legal rulings introduced several years ago that effectively made people forced to flee life-threatening domestic and gang violence in their home countries ineligible from being able to seek safety in the United States.
“These rulings have put the lives of vulnerable people at risk,” said Matthew Reynolds, UNHCR Representative to the United States and the Caribbean, after the U.S. Justice Department announced that the legal rulings known as Matter of A-B- and Matter of L-E-A- had been vacated in their entirety.
“Today’s decisions will give survivors fleeing these types of violence a better chance of finding safety in the United States and being treated with the basic compassion and dignity that every single person deserves. UNHCR welcomes this important humanitarian step,” Reynolds said.
UNHCR, he added, also welcomes the U.S. administration’s commitment to bringing its asylum system into line with international standards and specifically to writing new rules on determining membership of a “particular social group,” one of five grounds spelled out in the 1951 Refugee Convention defining who is entitled to international protection as a refugee.
“In keeping with international standards, a simple and broad definition of ‘particular social group’ is an essential part of a fair and efficient asylum system,” Reynolds said, adding that UNHCR stands ready and willing to support the asylum review and rulemaking process in any way requested by the U.S. government.
UNHCR, the UN Refugee Agency: 70 years protecting people forced to flee.
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The unethical and illegal “bogus precedents” issued by Sessions and Barr have cost lives! Much of the damage done to date is irreparable. So is the continuing damage resulting from the Biden Administration’s failure to reopen ports of entry to legal asylum seekers.
🆘A functioning asylum system at ports of entry, establishing a viable refugee program in or in the region of the Northern Triangle, and a wholly reformed, due process oriented EOIR with real judges who understand how to fairly and efficiently evaluate and grant asylum under the very generous standard enunciated by the BIA in Matter of Mogharrabi but never in fact uniformly applied in practice will reduce the number of individuals crossing the border between ports of entry to seek refuge. We also need the help of NGOs in providing representation to those arriving and resettlement assistance for those “screened in” for hearings.
Right now, we have no legal asylum system at our border despite very clear statutory language commanding it. That’s a BIG problem that must be addressed immediately! Clearly, the Biden Administration must cooperate with and seek help from human rights experts now outside Government including the UNHCR.
As I’ve said before many times, expert human rights leadership needs to be brought into their Biden Administration to “kick some tail,” eradicate incompetence and bias, and fix EOIR and the asylum system.
The NDPA needs to keep the pressure building for more immediate, common sense reforms to our asylum system and a legitimate EOIR of experts who function independently from DHS enforcement and politicos.
The Attorney General has issued a decision in Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021).
(1) Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018) (“A-B- I”), and Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) (“A-B- II”), are vacated in their entirety.
(2) Immigration judges and the Board should no longer follow A-B- I or A-B- II when adjudicating pending or future cases. Instead, pending forthcoming rulemaking, immigration judges and the Board should follow pre-A-B- I precedent, including Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
The Attorney General has issued a decision in Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021).
(1) Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- II”), is vacated in its entirety so as to return the immigration system to the preexisting state of affairs pending completion of the ongoing rulemaking process and the issuance of a final rule addressing the definition of “particular social group.”
(2) Immigration judges and the Board should no longer follow L-E-A- II when adjudicating pending and future cases.
Gender Violence continues to to be endemic in Latin America! Yet, shockingly, its victims, refugee women of color, can expect little protection in Garland’s Immigration Courts still applying Jeff Sessions’s inaccurate, misogynistic precedent in Matter of A-B- and continuing to be staffed by too many “judges” selected or promoted by the Trump Administration because of their perceived willingness to support anti-asylum policies targeting many women of color! Recently Garland outraged progressives by appointing 17 “Miller/Barr Holdovers” to powerful, life or death, Immigration Judge positions while eschewing better-qualified progressive experts from the private sector who could bring diversity and gender and racial justice to his dysfunctional Immigration “Courts!” PHOTO: UNHCR website
Migrant women carry children in the rain at an intake area after turning themselves in upon crossing the U.S.-Mexico border, late Tuesday, May 11, 2021, in La Joya, Texas. The U.S. government continues to report large numbers of migrants crossing the U.S.-Mexico border with an increase in adult crossers. But families and unaccompanied children are still arriving in dramatic numbers despite the weather changing in the Rio Grande Valley registering hotter days and nights. (AP Photo/Gregory Bull)(Gregory Bull)Natalie Gonnella-Platts Director, Women’s Initiative George W. Bush Institute PHOTO: Bush InstituteJenny Villatoro Associate, George W. Bush Institute-SMU Economic Growth Initiative PHOTO: George W. Bush Institute
By Natalie Gonnella-Platts and Jenny Villatoro In the Dallas Morning News:
When U.S. Border Patrol found him in the Texas desert, 10-year-old Wilton was crying, “they abandoned me.” Exhausted and alone, his image went viral — a poignant visual of the struggle faced by thousands seeking safety.
But Wilton’s story actually began in Nicaragua when his mother, Meylin, wasn’t able to get legal protection from an abusive partner. Mother and son fled to the United States, seeking asylum, but were expelled under a public health rule and sent to Mexico, where they were kidnapped, according to an account in El Pais. Meylin’s brother in Miami could pay only half the ransom — enough for Wilton alone to be released.
Although Meylin was ultimately released and reunited with her son, the tale that led to Wilton’s arrival at the border as an unaccompanied minor isn’t unique. It illustrates the fact that gender-based violence, revictimization and lack of justice affect children, families and communities thousands of miles away. It also highlights the importance of a safe and legal pathway into the United States for survivors of gender-based violence and other asylum-seekers. For many, arriving at the U.S. border seeking asylum is the only legal pathway available.
Immigration reform in the United States is essential to assuring that we have a secure and efficient border, a system flexible enough to handle changes in migrant flows, and the capacity to treat each migrant with dignity. But more needs to be done in the migrants’ home countries, too, so that they are not forced to flee for their safety in the first place.
Any comprehensive plan on Central America and immigration reform should address gender inequity and gender-based violence.
They are not siloed issues to acknowledge only when horrific stories of femicide and human trafficking force us to pay attention. Rather, they are deeply entangled with broader challenges of corruption and poverty. Proposed solutions shouldn’t overlook the impact of gender-based violence on migrant flows, economic development, education and health.
Fourteen of the 25 most dangerous places for women are in the Western Hemisphere, including countries within Central America. Patriarchy and gang violence subject women and girls to abhorrent actions of abuse and control.
Honduras and El Salvador saw some of the highest incidences of femicide within Latin America in 2019, at rates of 6.2 and 3.3 per 100,000, respectively. In Guatemala, adolescent girls are at a high risk of being “disappeared,” with 8 out of every 10,000 girls between the ages of 15 and 17 reported missing each year.
COVID 19-related lockdowns are being exploited by gangs looking to strengthen control: El Salvador alone has seen a 70% increase in gender-based violence since the beginning of the pandemic. And lockdowns have forced vulnerable individuals to stay in close proximity to their perpetrators. Guatemala, Honduras and El Salvador reported an increase in intrafamily violence, with El Salvador reporting an increase in intrafamily femicides as well.
Justice systems and access to services need to be strengthened to ensure adequate protection for all under the law. Legal protections often are inhibited by weak institutions, corruption and a culture of impunity toward perpetrators.
According to a 2017 national survey, two-thirds of Salvadoran women over the age of 15 have experienced violence, but only 6% have ever reported it. While laws against child marriage exist across the region, in some countries about 1 in 3 young women are in a union before age 18. Post-trauma support and efforts that inform Central American women of their rights and agency are critical interventions that could help women like Meylin.
Females have been disproportionately affected by the devastating impact of hurricanes Eta and Iota, but the status of women and girls is chronically overlooked in response efforts, exacerbating the risk of violence.
Women and girls must be seen and heard. Greater focus on gender and age-disaggregated data collection and in tracking the effectiveness and efficiency of legal systems is crucial. And women and their lived experiences need to be more fully represented at all leadership levels.
Finally, direct outreach to local communities should be a priority for U.S. government and private sector-led programs. This includes resource and capacity support for advocates and organizations that serve as lifelines for those affected by violence, often at great personal risk. Engagement with men and boys is equally imperative.
How can anyone be expected to thrive when her day-to-day priority is simply to survive? The United States needs to recognize that gender-based violence and gender inequity drive migration.
Immigration reform must include strategies to address the root causes of migration from Central America in effective and lasting ways to prevent situations like Wilton’s and Meylin’s. Women and girls must be front and center in these solutions.
Natalie Gonnella-Platts serves as the director of the Women’s Initiative at the George W. Bush Institute.
Jenny Villatoro is an associate for the George W. Bush Institute-SMU Economic Growth Initiative.
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“Deterrents” and illegally abusing asylum seekers DON’T WORK! It’s not that difficult a concept. Indeed, these misguided attempts at deterrence have been failing consistently under Administrations of both parties for the past four decades. One would think that an “enlightened nation” would try a different approach rather than simply repeating the costly failures of the past in various forms.
What we need are functioning refugee and asylum systems, led and staffed by progressive experts, operating from INSIDE Government, that will grant status to qualified refugee women in a fair and timely manner and set favorable precedents even while separately addressing the endemic problems in the “refugee-sending countries.” Of course, it will result in more legal immigration of refugees and asylum seekers to the U.S. That’s a good thing for both us and those individuals, not something to be feared or unlawfully and dishonestly “deterred!”
With stagnating population growth, we should welcome and facilitate legal immigration of courageous, talented, dedicated refugee women from all countries and their children through the refugee, asylum, and a much more robust legal immigration system!
Debi Sanders ESQ “Warrior Queen” of the NDPA PHOTO: law.uva.edu
Thanks to NDPA warrior-queen Debi Sanders for sending in this item. This report should be great evidence for those litigating to halt the Garland misogyny mess at EOIR and, sadly, to some extent in U.S. Courts of Appeals that have chosen to sweep both reality of what’s happening in the Northern Triangle and the patent unconstitutionality of a system governed by bogus precedents entered or promoted by AG’s affiliated with DHS Enforcement who also packed and reshaped the immigration “judiciary” in the image of nativist restrictionists! However, compelling as it is, the report only adds to the existing body of documentation of the dishonest approach by Administrations of both parties to Latin American asylum claims, particularly those of women and children.
For Pete’s sake, first and second year law students know that the EOIR travesty is unconstitutional! Why are life-tenured Article III Judges covering it up? Hopefully, history will take note of their mal-performance on the bench! These guys are life-tenured! So, what’s their excuse for not upholding the Constitution against clear Congressional and Executive abuses?
Hard for me to say this. But, former President George W. Bush is doing more for human rights, gender rights, civil rights, and immigrants rights’ than Garland or anyone else at the Biden DOJ! At least he speaks out publicly for the humanity and contributions of migrants and for their fair and generous treatment, which is more than any member of the Biden Administration has done as they continue to mistake softening the rhetoric with taking firm action to reverse White Nationalist policies and replace them with readily achievable progressive ones.
030114-O-0000D-001.President George W. Bush. Photo by Eric Draper, White House. “Why is this guy willing to speak up for immigrants’ rights . . . .
Meanwhile, despite pleas from nearly every expert, progressive, human rights, immigrants’ rights, and gender rights group in the U.S., Garland continues to allow Sessions’s wrong, toxic, and misogynistic decision in Matter of A-B – to remain in place and threaten the lives of female refugees while ignoring the misogynistic, anti-asylum, culture inculcated by Sessions and Barr at EOIR that continues to flourish and daily dish out abuse to migrants and their representatives without meaningful consequences.
“ . . . while this guy continues to apply misogynistic precedents, eschew progressive experts, recycle failed ‘Aimless Docket Reshuffling’ gimmicks, and allow the Trump-era anti-asylum culture to continue to flourish at EOIR and DOJ?” Attorney General Merrick B. Garland Official White House Photo Public Realm
What, indeed, is someone like AAG Vanita Gupta doing with herself at Garland’s anti-progressive, and anti-due-process mess at DOJ? Why are folks like her and Assistant Attorney General Kristen Clarke there in the first place if they aren’t going to stand up to Garland’s tone-deaf, inept approach to gender rights, human rights, and racial justice @ EOIR? How, on earth, do you lead a “Civil Rights Division” while turning a blind eye to grotesque violations of civil and human rights going on daily in your “Boss’s” wholly owned “court” system that functions like no “real court” in America? What’s DAG Lisa Monaco doing presiding over a gender disaster at EOIR? It’s straight out of “Jim Crow!”
James “Jim” Crow Symbol of American Racism, still right at home at Garland’s EOIR!“She struggled madly in the torturing Ray” — “Do Garland, Monaco, Gupta, & Clarke work in ‘sound-proofed offices’ where they can’t hear our tortured screams and moans? What’s wrong with those guys? We’re suffering and dying while they are fiddling and diddling!” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
And, I wouldn’t say that Vice President Harris is looking very good either, as she “swallows the whistle” on notorious scofflaw human rights violations that she was well aware of from her time in the Senate! Doesn’t anyone in the Biden Administration have the backbone to speak up for human rights, human decency, and restoring the rule of law? Is it REALLY our position that following the Constitution, our statutory laws, and the international treaties to which we are party is beyond the capabilities of the U.S. Government? If so, what, may I ask, is the difference between us an any third world dictatorship where laws have no meaning?
Vice President Kamala D. Harris. “Our first African-American, AAPI, child of immigrants VEEP seems curiously deaf and indifferent to the gross abuses being heaped on migrants and women of color at EOIR and at our Souther Border! What’s her excuse for turning her back on the progressive, human rights, gender equality groups that helped put her in office. Why is she remaining silent as Garland continues to appoint Billy Barr’s hand-selected non-progressive, non-diverse Immigration Judges to a life-determining “judiciary” that the Biden Administration wholly controls? How can you create a progressive, diverse, Article III Judiciary that will promote racial equity when you’re unwilling to apply those values and selection criteria to a huge judiciary that you actually control? What message are you sending to ‘next generation progressive attorneys of color’ when you allow Garland to ignore them in favor of lesser qualified candidates? Why aren’t you out there actively recruiting more attorneys of color and other underrepresented groups for the Immigration Judiciary rather than allowing Garland to use same-old, same old bogus “USA Jobs Phantom recruitments?” Lots of unanswered questions here! Vice President of the United States (Official Senate Photo)
I can’t figure it out! But, I do know that Garland’s lousy stewardship at EOIR, failure to speak out for fundamental fairness, usher in progressive changes, and restore due process @ EOIR has reached “crisis proportions” affecting our entire justice system and threatening democracy!
Hopefully, progressive advocacy, human rights, and civil rights groups will keep up the pressure and demands for long, long, long overdue and readily achievable changes at EOIR: in leadership, precedents, culture, and administration of justice! (Get this: Garland just created yet another bogus “Dedicated Docket” without a functional e-filing system to make it work! That’s “Aimless Docket Reshuffling 101,” as anyone who has actually had to deal with the mess in his Immigration Courts could tell him. But, he’s apparently not interested!) Right now, it’s an unmitigated “disaster zone” continuing to spiral downward!
There is a direct link between the “Dred Scottification of the other” that Garland countenances at EOIR and the overall failure of our justice system to deal effectively with institutionalized racism! The U.S. has a long, disreputable history of treating women and persons of color as “non persons” under the Constitution. Much of it traces to our immigration laws where “the others” are routinely dehumanized, stereotyped, demonized, and abused by those who falsely claim to be furthering the “rule of law!” We will NOT achieve racial justice for all in America until we deal with the festering wounds intentionally inflicted on women, children, and people of color in our immigration system, at EOIR, and illegally continuing at our borders!
By choice, Garland now “owns” the misogynistic, anti-due-process, anti-asylum disaster @ EOIR. Make him deal with it in a constructive way!
🇺🇸🗽⚖️🧑🏽⚖️Due Process Forever! Garland’s continued tolerance of misogyny and the anti-due-process, anti-asylum culture at EOIR, NEVER! Stop Garland’s continuing misogynistic nonsense before more refugee women and people of color needlessly die! What’s it going to take finally to get some “real justice @ Justice?”
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com. — Why won’t Garland repudiate “Gonzo’s” racist, misogynist, anti-due-process policies @ EOIR? Republished under license“She struggled madly in the torturing Ray”– Garland’s failure to repeal Matter of A-B-, revoke other xenophobic precedents and rules, and appoint progressive asylum experts to end the institutionalized racism, misogyny, and denial of due process at EOIR has become a national disgrace that is crippling the Biden Administration and squandering the support of progressives! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
El Salvador’s house of horror becomes grisly emblem of war on women
Authorities have sought to portray the ex-policeman at whose home up to 40 bodies, mostly female, may be buried, as a freakish psychopath, despite the arrest of nine other suspects
Bryan Avelar in Chalchuapa and Tom Phillips
Published:
05:00 Tuesday, 25 May 2021
Day after day they flock to the emerald green house on Estévez Street, seeking news of loved ones who have vanished without a trace.
“They say there are lots in there, maybe 40,” said Jessenia Elizabeth Francia, a 38-year-old housewife who had travelled 20 miles to reach the heavily guarded building under a punishing midday sun.
Francia had come to Chalchuapa, a small town in western El Salvador, in search of her son, Luis Fernando, who disappeared seven years ago at the age of 16. “I just want to find at least his bones so I can bury them and find peace,” she said, clutching a cellphone showing a photograph of her missing child and the words: “I have faith.”
Others sought daughters or wives, Central American women feared to have fallen prey to the house’s proprietor, the former police officer and alleged serial killer Hugo Ernesto Osorio Chávez, who is feared to have buried his victims inside.
El Salvador: dozens of bodies found at ex-cop’s house investigated as femicides
“She was 24,” said Candelaria Carranza Castro, a silver-haired mother whose daughter went missing in July 2015 and who was among those to visit the house on Monday. “Whatever has happened I want to find her.”
The mass grave at No 11 Estévez Street was discovered on the night of 7 May after neighbours called police having heard the cries of a young woman. By the time police arrived more than an hour later she and her mother were dead – reportedly bludgeoned to death with an iron tube by Osorio, who confessed to the crimes. While taking the 51-year-old into custody, police stumbled across the half-buried bodies of two men in the house’s patio and, when they started digging, found more corpses below in a series of pits.
Authorities have yet to announce the precise number of bodies buried inside but the excavators still probing its foundations believe there could be as many as 40, and no fewer than 15.
. . . .
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Read the rest of the article at the link.
What, exactly, is Garland doing about EOIR to justify his continuance in office? What about supposed social justice, gender justice “activists” Lisa Monaco, Vanita Gupta, and Kristen Clarke? The continuing human rights, gender rights farce at DOJ and EOIR should outrage all progressives and be a continuing stain on all the reputations of feckless Biden Administration officials at the failed and ever more failing DOJ !
Washington—Senator Dianne Feinstein (D-Calif.) called on Attorney General Merrick Garland to review decisions made by the Trump administration restricting asylum eligibility for victims of domestic and gang violence.
The Refugee Act of 1980 extended asylum protections to foreign nationals who fear to return to their home countries due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The Trump administration rejected established precedent by restricting asylum eligibility for victims of gang and domestic violence.
“As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution,” wrote Senator Feinstein.
“I ask that you … consider vacating … those decisions and bring our asylum system back into alignment with the law and the values informing it,” Feinstein added.
Full text of the letter is available here and below:
May 13, 2021
The Honorable Merrick B. Garland
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530
Dear Attorney General Garland:
I write regarding two decisions issued by Attorneys General Session and Barr during the Trump administration in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), and Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019), as well as other opinions based on these decisions. Enclosed are copies of letters I sent the Attorneys General on these decisions, which in my opinion, ignored precedent by eliminating asylum eligibility for many victims of domestic and gang violence. I am sure you share my belief that all who Congress made eligible for asylum should receive the law’s protections.
As a result of these decisions, the United States denies humanitarian relief to asylum-seekers fleeing countries in which 95 percent of sexual violence cases are never investigated and in which gang-related killings and extortion are common practice. This is out of step with our nation’s reputation as a safe haven for those fleeing persecution.
The Refugee Act of 1980 extends asylum to foreign nationals who are unwilling or unable to return their country of origin due to past persecution or fear of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). The Trump Administration rejected established precedent when it concluded that victims of domestic or gang violence ignored by their home countries could not claim the protections of asylum.
Accordingly, I ask that you, as part of your review of “precedential decisions … governing the adjudication of asylum claims” directed by President Biden in Executive Order No. 14,010, consider vacating Matter of A-B-, Matter of L-E-A-, and subsequent opinions based on those decisions and bring our asylum system back into alignment with the law and the values informing it. This approach has been used before to provide timely relief in anticipation of formal rulemaking.
Thank you for your prompt attention to this matter.
Sincerely,
Dianne Feinstein
United States Senator
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It’s a very modest, straightforward, well-justified, and long overdue “ask” by Senator Feinstein and others.
It’s simply shocking that Garland continues to dither and “swallow the whistle” on “Basic Day 1 Immigration/Human Rights Stuff” while abused refugee women and their children continue to suffer and die on his watch. Meanwhile, their long suffering pro bono and “low bono” attorneys tear their hair out at Garland’s lack of attention to the horrible human rights, due process disaster in his Immigration “Courts.”
“She struggled madly in the torturing Ray” — Despite outrage from progressives and women’s rights advocates, AG Garland has shown no concern for the suffering of women because of bad Trump-era precedents that he has allowed to remain in effect as well as his continuation of Trump’s lawless refusal to enforce asylum laws at border! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings LawProfessor Stephen H. Legomsky Emeritus Professor of Law & Former USG Senior Executive Washington U. Law PHOTO: Washington U. Law website
With the stroke of a pen, U.S. Attorney General Merrick Garland could restore access to life-saving protection for domestic violence survivors and others caught in the crosshairs of his predecessors’ campaign to exclude refugees. Garland can and should immediately vacate Jeff Sessions’ 2018 decision in the case known as Matter of A-B-, which all but eliminated asylum for people fleeing brutal domestic violence.
On the campaign trail Joe Bidenpledged to reverse Matter of A-B- and ensure a fair opportunity for survivors to seek asylum. As president, Biden has issued an executive order directing his Departments of Justice and Homeland Security to review their asylum policies and, by August, determine whether our country protects people fleeing domestic violence in a way that’s consistent with international standards. Following this review, the agencies will issue regulations that bring our treatment of asylum seekers into alignment with our treaty obligations, and with basic principles of humanity and fairness.
But this process will span many months, and when lives are on the line, more immediate action is imperative. Every day Matter of A-B- remains in effect, people are being wrongly denied asylum and delivered into the hands of the very persecutors they’ve fled.
How did we get into this mess? In 2018, then-Attorney General Jeff Sessions personally intervened in the case of Ms. A.B., a Salvadoran woman. He used her case as a vehicle to overrule a landmark Justice Department opinion recognizing domestic violence as a potential basis for asylum. That ruling was the culmination of 15 years of advocacy and extensive consideration by government agencies and refugee law experts.
The impact of Sessions’ decision was immediate and catastrophic. Immigration judges around the country began denying asylum in cases that — pre-Matter of A-B- — should have been relatively straightforward. Though some survivors could still prevail in immigration court, Trump administration attorneys would often appeal these cases to the Justice Department’s appellate tribunal, the Board of Immigration Appeals, and get them overturned.
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One of the authors — Professor Musalo — represents a victim of Sessions’ attack on survivors: We’ll call her “Cristina” to protect anonymity. Cristina fled Honduras after enduring nearly two decades of domestic violence so severe it once put her in a month-long coma. Cristina was also terrorized by a politically powerful family that murdered multiple siblings and close relatives. When Cristina received a note threatening her with the same fate, she knew she had no choice but to seek asylum.
Cases like Cristina’s have life-or-death stakes, but with Sessions’ ruling intact they are being denied automatically. Though Cristina presented a strong asylum application, in 2020 the Board of Immigration Appeals denied her case, ruling that Matter of A-B- precluded protection. Cristina now faces imminent deportation to Honduras, where she is terrified she’ll be killed.
Merrick Garland can protect survivors like Cristina by simply vacating Sessions’ decision and related asylum rulings from Trump’s Department of Justice. This would at least bring us back to where we were before — not a perfect world, but one where asylum seekers had a fairer shot — while the Justice Department prepares a more humane and legally defensible set of principles to guide future decision-making in asylum cases.
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Tortured & abused refugee women’s lives continue to hang in the balance while Judge Garland diddles and runs “Miller Lite Judicial Selection Happy Hour” at failing DOJ! Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Read the complete op-ed at the link.
If the current BIA were replaced with competent, expert, progressive, due-process oriented judges tomorrow, as should have happened months ago, this problem could be solved immediately.
I have no doubt that with real asylum experts like Karen as appellate judges at the BIA, Matter of A-B-would rapidly be turned into a blueprint for efficiently granting needed protection to persecuted women. It would also serve as a much needed tool for ending the “asylum free zones” unethically and unprofessionally established by some Immigration Judges throughout the country and starting the long overdue process for removing those unqualified Immigration Judges who are unable or unwilling to fairly grant asylum to qualified applicants and who have created an unacceptable anti-asylum, racist, misogynist culture in some parts of EOIR, in other words the “95% denial club” needs to go! Now!
Disgracefully, that culture was actually encouraged and rewarded by White Nationalist political hacks like Sessions and Barr — folks who never, ever should have had any role in asylum adjudication in America, let alone been permitted to unethically act as “judges” in cases they had “pre-decided” on a mass basis! “Fair and impartial adjudicator,” the core of American constitutional due process, became a sick joke under Sessions and Barr as the Supremes and many Article IIIs disgracefully and spinelessly looked the other way. And, Garland has done nothing to effectively address or reverse this toxic, anti-due-process, racist, misogynist “culture” despite having been told by experts that it was an emergency that could not wait!
Karen and Steve also point out how the BIA disintegrated from a tribunal that was supposed to guarantee fairness and due process for migrants, implement best judicial practices, and protect the most vulnerable from Government overreach into a tool and weapon of DHS enforcement! Yet, 100 days into the Biden Administration, BIA appellate judges who “toadied up” to the Trump regime’s White Nationalist agenda and aided “Dred Scottification” of “the other” by Stephen MIller remain, and experts who should have replaced them remain “on the outside looking in.”
If the Biden Administration and Garland are incapable of putting diverse, qualified progressive experts into a judiciary that they actually control, what are the prospects for progressive transformation of the Article IIIs? That makes this week’s disclosure that Garland mindlessly appointed 17“Miller Lite” Immigration Judges left over from Barr’s flawed recruitment and scummy tenure instead of properly using these valuable positions to start building a long overdue progressive, expert judiciary at EOIR all the more infuriating and outrageous!
The unmitigated, entirely unnecessary, and potentially solvable due process disaster at EOIR will prevent any meaningful progressive immigraton reforms, whether by legislation or Executive action! It’s also undermines racial justice, threatens the future of American justice, and undermines our democracy every day that it festers away, unaddressed.
Garland must fix this problem starting now! Reassigning the 17 judges who should not have been hired and are still in probation, re-competing their positions under merit criteria that encourage applications from all sources and promote diversity, and cancelling the ridiculous plans for the unneeded, due process denying Richmond Adjudication Center (“Star Chamber”) should be just the start.
“It’s a long way to Richmond,” as country singer Travis Tritt would say!
“Unit Chief Immigration Judges” are needed like a hole in the head, probably less. They were a bogus idea cooked up by now deposed former Director McHenry to aid in his misguided union busting initiative. What is needed is less bogus judicial supervision (whoever heard of qualified judges needing “supervisors”) and the accompanying time and resource wasting gimmicks, better professional judicial management, and more competent, progressive, independent, expert immigration judges with experience representing asylum applicants and other immigrants in Immigration Courts and judges with NGO and clinical experience who actually know how to manage dockets and solve problems — skills that are in perilously short supply at EOIR.
Garland needs to replace the “gang that can’t shoot straight” @ DOJ and EOIR with some progressive experts and let them start fixing problems and knocking heads of those still stuck in the Sessions/Barr era! Some of us believe that elections should have consequences. Among those is the immediate end of “Miller Lite Justice @ Justice” and the type of promised due process reforms that got Biden and Harris elected in the first place!
“Miller Lite Justice Hour” is over at DOJ — It’s time for Garland to get on the ball and install progressive judges, competent administrators, and long overdue progressive due process reforms at EOIR — America’s worst and most grotesquely dysfunctional “courts,” that don’t operate as courts at all and which daily destroy the lives of refugee women and other migrants!
Five months after the election and five weeks after his swearing-in as AG, Judge Garland’s EOIR is worse than ever! And, he has nobody at the DOJ or in Falls Church with the expertise and progressive outlook to fix the mess! If you don’t want to deal with this for the next four years, then it’s time to demand courageous, positive, progressive, due-process, human rights, racial justice oriented change! We voted to end the “clown show,” but it’s still operating as if the election never took place! PHOTO: Thomas Hawk Creative Commons
Fed up with “Garland’s Clown Show🤡” @ Justice?
Tell your legislators that you want Article I NOW — with a “short grandfather” and merit-based re-competition of all judicial jobs!
Stop the threat to America’s future emanating from our dysfunctional, biased, anti-immigrant, anti-asylum, anti-due-process, misogynistic Immigration “Courts” still operating under Judge Garland, as designed and staffed by Stephen Miller, Jeff “Gonzo Apocalypto” Sessions, and “Billy the Bigot” Barr to degrade humanity and mock the Constitution!
Courageous, deserving, vulnerable folks like “Ms A-B-“ are still unnecessarily suffering injustice from Garland’s broken system! In fact, because Garland won’t stand up for the legal and due process rights of asylum seekers at our borders, if Ms. A-B- arrived today she would be back in El Salvador tomorrow facing torture, rape, and death after receiving no process whatsoever, let alone due process! NONE! No legal process from a Government supposedly committed to humanity and the rule of law!
Is this what President Biden meant when he pledged to undo the cruelty, racism, and scofflaw abuse of refugees and asylum seekers meted out by Trump, Miller, Wolf, Barr, and Cooch Cooch? If not, why are lives still being lost and futures ruined by this totally outrageous and completely unwarranted behavior? It’s a TODAY issue, not a problem to be shoved over until tomorrow!
