Matter of J-C-H-F- – immigrationcourtside.com

BIA IN FANTASYLAND: Evidence Continues To Mount That BIA’s Deference To Border Statements In Matter of J-C-H-F- Was a Flight of Fantasy That No Reasonable Fact Finder Would Have Reached – How You Can Fight Back Against This Blatant Perversion Of Justice!

http://immigrationimpact.com/2018/03/26/uscis-records-abusing-asylum-seekers/

AARON REICHLIN-MELNICK writes in Immigration Impact:

As thousands of Central American families arrived at the U.S.-Mexico border asking for asylum in 2014, human rights organizations raised alarms about asylum seekers’ treatment by Customs and Border Protection officials. But these organizations were not the only ones expressing concern—asylum officers within U.S. Citizenship and Immigration Services also raised alarms about CBP misbehavior.

A new Freedom of Information Act lawsuit hopes to reveal how asylum officials’ repeated concerns about CBP officer misconduct were left unaddressed. The lawsuit, filed by Human Rights Watch and Nixon Peabody LLP, seeks information about such misbehavior, including hundreds of reports that CBP failed to properly screen asylum seekers.

This lawsuit comes after Human Rights Watch, along with the American Immigration Council, filed a FOIA request asking for records of complaints made by officers in USCIS’s Asylum Division. The lawsuit asks USCIS to turn over all records of complaints about CBP misconduct from 2006 to 2015, arguing that the agency violated FOIA by failing to provide requested key documents following the original request. These documents included a spreadsheet where asylum officers purportedly documented hundreds of instances of “problematic Border Patrol practices.”

CBP officers at ports of entry and along the U.S. border are generally the first to encounter newly arriving asylum seekers. When asylum seekers express a fear of returning to their home country to a CBP officer, the officer is required to refer them to an asylum officer with USCIS for an interview. The asylum officer decides whether the asylum seeker has a “credible fear” of persecution, a determination which allows the asylum seeker to pursue an asylum case in immigration court.

Because these credible fear interviews occur after an asylum seeker has already been processed by CBP officers at the border or ports of entry, asylum officers are able to ask about any encounters with CBP. The limited records USCIS offered in response to the FOIA show that asylum officers often had serious concerns about the behavior of its sister agency.

The documents produced to date demonstrate how grave the problem is:

One email from an asylum officer to a supervisor expresses a belief that there are “significant issues in how some Border Patrol officers are screening individuals.”

A second email discusses an incident where “CBP mocked a transgender woman for hours and refused to record her fear” of returning to her home country. These internal reports of CBP abuse match the reports of many asylum seekers who encountered abuse at the hands of CBP officers during the same time period.

A third email from an asylum officer expressed concerns that an asylum seeker was coerced into withdrawing his request for asylum, with the officer writing that: “What is especially disturbing about this is that … the record indicates that [the asylum seeker] has been subjected to harassment, intimidation, and physical mistreatment by CBP upon his recent entry into the United States, and this mistreatment. . . affected his decision to dissolve his case.”

Records of CBP’s mistreatment of asylum seekers is especially important as the numbers of asylum-seekers at the border continue to rise. Last year, groups sued CBP, alleging a pattern or practice of unlawfully turning away asylum seekers who arrived at ports of entry and requested asylum. In light of CBP’s own inadequate complaint system, this new lawsuit could substantiate the many reports of the agency’s misconduct.

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Both Judge Jeffrey Chase and I have “roasted” in prior blogs the BIA’s disingenuous and “clearly erroneous greenlighting” of Border Patrol statements in Matter of J-C-H-F, 27 I&N Dec. 211 (BIA 2018). Quite contrary to the BIA’s unjustified “head in the sand” presumption of regularity given these flawed statements, there is clear public evidence, compiled over more than a decade, that such statements should be considered “presumptively unreliable.”

In addition to addressing the elements of the bogus “test” enunciated by the BIA in J-C-H-F- what should advocates do to fight this type of clearly biased, largely “fact free,” unwarranted pro-DHS decision-making by the BIA?

First, as Jeffrey and I have pointed out, get the publicly available reports of the U.S. Commission on International Religious Freedom (“USCIRF”) which show that glaring errors in accuracy and reliability raised as long ago as 2006 remained unaddressed as of 2016.
Second, use the additional materials cited in the above article to show how DHS has suppressed its own internal documents establishing the unreliability of the Border Patrol statements.
Third, get in touch with Human Rights Watch and the American Immigration Council to see if any additional FOIA materials have been made available which establish unreliability.
Fourth, ask someone from Human Rights Watch about a database I have heard they are establishing to provide “hard evidence” to challenge the reliability of Border Patrol statements.

In the “Age of Sessions,” I wouldn’t hold my breath for the “captive” BIA to recede from its travesty in J-C-H-F-. That’s why it’s critically important for advocates to do a great job of “setting the record straight” in the Courts of Appeals.

But, to do that, evidence challenging the Border Patrol statements must be offered at the trial stage before the Immigration Judge. Documenting and exposing the BIA’s disingenuous decision-making will also undermine the BIA’s overall credibility before the Courts of Appeals and perhaps eventually lead to a reversal of the unjustified “Chevron deference” the Board currently receives.

Today’s Board masquerades as a deliberative “expert tribunal” that neither publicly deliberates nor possesses any obvious expertise — a situation aggravated because nobody who works for the biased White Nationalist xenophobe Jeff Sessions can legitimately be considered “unbiased” or “impartial” when it comes to adjudication of migrants rights. Don’t forget, even if the BIA rules in the respondent’s favor, something that happens less and less these days, each an every BIA decision is subject to an inappropriate “certification and reversal” process by Sessions that he has shown little hesitation in invoking recently.

How can a respondent receive a “fair hearing” from a “court” where the Government’s leading enforcement figure holds all the cards? Obviously, he or she can’t! You can help make a record that eventually should force the “Article III’s” to shut down this “caricature of American justice.”

Due Process Forever!

PWS

03-28-17

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

BIA PROVIDES FEEBLE GUIDANCE ON BORDER STATEMENTS — MATTER OF J-C-H-F-, 27 I&N DEC. 211(BIA 2018)! PLUS SPECIAL BONUS: MY “CRITICAL ANALYSIS!”

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Matter of J-C-H-F-, 27 I&N Dec. 211 (B IA 2018)

BIA HEADNOTE:

“When deciding whether to consider a border or airport interview in making a credibility determination, an Immigration Judge should assess the accuracy and reliability of the interview based on the totality of the circumstances, rather than relying on any one factor among a list or mandated set of inquiries.”

PANEL: BIA Appellate Immigration Judges MALPHRUS, CREPPY, and LIEBOWITZ

OPINION BY: JUDGE GARRY D. MALPHRUS

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MY ANALYSIS

Predictably, the respondent loses. Even though faulty analysis leading to unwarranted denial of asylum cases by the BIA and Immigration Judges is a recurring problem (see, e.g., Salgado-Sosa v. Sessions, recent 4th Circuit, Blogged here https://wp.me/p8eeJm-2aS), when was the last time the BIA explained how U.S. Immigration Judges should analyze and grant asylum? No, the BIA’s recent asylum jurisprudence is basically a one-sided “blueprint for denials that will pass appellate muster.” In reality, Due Process is supposed to be about protecting individuals (whether documented or undocumented) from Government overreach, not how to maximize DHS removals. But, you’d be hard pressed to get that from reading the BIA precedents.
What this decision really tells Immigration Judges: “Presume that sworn statements taken at the border are reliable. Feel free to use any inconsistencies against the asylum applicant. Go ahead and reject all efforts to explain. Deny the application based on credibility Don’t worry, we’ve ‘got your back’ on appeal.”
Even more seriously, although the BIA is supposed to consider “all relevant factors,” the panel totally ignored strong, impartial, widely disseminated evidence that statements taken at the border on Form I-867A are highly unreliable. Not only that, but such evidence is in the public realm and in fact was actually presented at EOIR training conferences at which Board Judges and staff were present!
Let’s reprIse a recent article by Hon. Jeffrey Chase, who was both an Immigration Judge and a BIA Attorney Adviser:”

In August 2016 I [Judge Chase] organized and moderated the mandatory international religious freedom training panel at the immigration judges’ legal training conference in Washington, D.C. One of the panelists from the U.S. Commission on International Religious Freedom (“USCIRF”) informed me of a just-published report she had co-authored. The report, titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, is the follow-up to a 2005 study by USCIRF of the treatment of arriving asylum seekers in their interactions with the various components of DHS and the Department of Justice involved in the expedited removal process. What jumped out at me from the report was the first key recommendation to EOIR: “Retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

The new report referenced the Commission’s 2005 findings, which it described as “alarming.” The earlier study found that “although they resemble verbatim transcripts, the I-867 sworn statements” taken from arrivees by agents of DHS’s Customs and Border Patrol (“CBP”) component “were neither verbatim nor reliable, often indicating that information was conveyed when in fact it was not and sometimes including answers to questions that were never asked. Yet immigration judges often used these unreliable documents against asylum seekers when adjudicating their cases.”

The 2016 report found similar problems with the airport statements taken a decade later. The study found the use of identical answers by CBP agents in filling out the form I-867 “transcript,” including clearly erroneous answers (i.e. a male applicant purportedly being asked, and answering, whether he was pregnant, and a four year old child purportedly stating that he came to the U.S. to work). For the record, USCIRF is a bipartisan organ of the federal government. So this is a government-issued report making these findings.

The U.S. Court of Appeals for the Second Circuit has long recognized the problems inherent in the reliability of airport statements. In Ramseachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004), the Second Circuit held that “a record of the interview that merely summarizes or paraphrases the alien’s statements is inherently less reliable than a verbatim account or transcript.” The court determined that the airport statement in that case bore “hallmarks of reliability, as it is typewritten, signed by Ramseachire, and initialed on each page. The record also indicates that he was given the opportunity to make corrections to the transcription.”

But was that truly the case? The USCIRF study (the first of which was published a year after the Ramseachire decision) shows that the Second Circuit’s reliance may have been misplaced. The USCIRF researchers found instances in which the statement was not read back; when asked, a CBP agent stated “that he only reads back the contents if the interviewee requests it because it takes too long, and that the interviewee initialing each page only indicates that s/he received a copy of that page.”

As noted in the USCIRF study, the problems with airport statements go beyond merely summarizing or paraphrasing, to include actual misstatements and omissions. But the I-867 statements as prepared by the CBP agents give the appearance of being verbatim transcripts, and further claim to contain multiple safeguards to guarantee their accuracy which, pursuant to the findings of the USCIRF studies, may not have actually been employed. And based upon the appearance of those safeguards, immigration judges have relied on the contents of these statements to reach adverse credibility findings that result in the denial of asylum. And as in Ramseachire, many of those credibility findings are being affirmed on appeal.

This is not to say that all airport statements are unreliable. But the point is that, as in Ramseachire, courts see something that looks like a verbatim transcript, see additional signs that safeguards were employed to ensure accuracy, and as a result, afford the document more evidentiary weight than it might actually deserve. Under such circumstances, an immigration judge might reasonably rely on an airport statement purporting that the respondent had stated he came to the U.S. to work when in fact, he or she said no such thing. And the judge might discredit the respondent’s denial of such statement when the words are recorded in a seemingly verbatim transcript bearing the respondent’s signature and initials which says it was read back to him and found accurate.

Attorneys and immigration judges should therefore be aware of the report and its findings. The link to the report is: https://www.uscirf.gov/sites/default/files/Barriers%20To%20Protection.pdf

You can find Jeffrey’s commentary with my additional comments on “Courtside” here: http://immigrationcourtside.com/2017/09/22/use-with-extreme-caution-hon-jeffrey-chase-on-the-use-of-so-called-airport-statements-in-removal-proceedings-they-often-prove-to-be-highly-unreliable/
So we have clearly documented “credibility and reliability problems” with Forms I-867A, uncovered by the U.S. Commission on International Religious Freedom (“USCIRF”), a highly respected non-partisan body of experts. These problems have been festering for years, and remained just as bad in 2016 as they were more than a decade earlier when the USCIRF did its initial study! And, we have clear evidence that BIA Judges and staff were well aware of these unresolved problems, yet totally ignored them in this decision.
No wonder EOIR barely bothers to do judicial training any more! Obviously, anything that might require critical thinking or judicial analysis unfavorable to the DHS just goes in one ear and out the other!
How bad are Forms -867? Here’s a description of a well-publicized recent incident in which the Border Patrol “Sworn Statement” on Form I-867 asserted that a three-year old toddler was coming to America to “find work!” AllGov reports from June 20, 2015 (http://www.allgov.com/news/unusual-news/border-patrol-agents-accused-3-year-old-of-crossing-border-in-search-of-work-150520?news=856769):

Border Patrol agents claim that a 3-year-old boy said the reason he came to the United States was to look for work, thus making it easier for the undocumented immigrant to be deported.

The boy, hailing from Honduras and identified in court documents as Y.F., was allegedly interviewed in the summer of 2014 by Border Patrol agents trying to determine if immigrants had a credible fear of harm or death if they returned to their home countries. Those who claim such fear—and can prove it—have a shot at getting asylum in the United States, while those who say they came looking for work are most often deported.

Agents interviewed Y.F. and wrote on the appropriate form that he said he was looking for work. A brief (pdf) filed by the American Immigration Lawyers Association (AILA) with the Justice Department Board of Immigration Appeals points out the unlikelihood of that being true. “Y-F-’s interview, so painstakingly transcribed, sworn, signed and counter-signed, almost certainly never happened in the format in which it was memorialized. The impossibility of the interview, in spite of the DHS officers’ affirmations of veracity and the rule of government regularity is plain on the face of the writings themselves: Y-F- was three years old at the time he was interrogated,” the brief said.

AILA says that information on those forms, I-867 A/B, “are not inherently reliable because they often contain fake responses, do not accurately reflect testimony presented, and were almost always created under coercive conditions,” according to AILA.

The case of Y.F. isn’t unique. Earlier this year, the Department of Homeland Security (DHS) argued that a particular undocumented immigrant should be deported because she came to the United States to find work in Dodge City, Kansas, according to Elise Foley of Huffington Post. The immigrant was 11 days old at the time.

The case against the infant girl was thrown out because her mother claimed the baby was born in the United States. The boy, now 4, has been living in a detention center in Texas for a year. He has been approved for release, but his mother has not, so he remains in detention.

Maybe he can apply for a work release.

Let’s see what else the BIA Judges “blew by” in J-C-H-F-.
- The Border Patrol agent acted as the Spanish interpreter. Interpretation is a professional job. It’s different from being “bilingual.” Indeed, at one past ImmigratIon Judge Conference, we actually received a graphic demonstration from the EOIR Interpretation Staff of how and why being bilingual wouldn’t necessarily qualify someone to interpret accurately in a legal setting! In one ear, out the other, I guess. The BIA gives no explanation of how and why a Border Patrol Agent would be qualified to interpret accurately.
- Yeah, but the BIA says it’s all OK because the respondent “understands English.” I probably “understand” German. If you said something slowly and clearly to me in German I probably could “get the gist” and say “Ja,” “Nein,” or “Nicht Verstehen.” But, would that mean I really understood what was going on? Highly unlikely!
- There is a body of evidence out there that asylum applicants are often traumatized as well as afraid of figures of authority such as “border police.” That can have something do with border statements. Indeed this respondent made such a claim. But, the panel simply blew it off, saying that the respondent was offered an opportunity to speak “confidentially with an officer.” How would that address trauma and fear of authorities? The BIA never tells us.
- The BIA reassures us that the statement is reliable because it “contains a detailed recitation of the questions and answers relating to the applicant’s claim, including the purpose of his visit, the length of his stay, and the issue whether he feared any harm if returned to Mexico.” Yet these are the very aspects of the I-867 that the USCIRF has said are often inaccurate, manipulated, or outright falsified.

The BIA could have selected as a precedent a case that illustrated the inherent shortcomings of the Form I-867 and why they should be viewed critically by Immigration Judges with at least a degree of skepticism, if not an outright presumption of unreliability. The BIA could further have used such a decision as a forum to demand that the DHS show what steps it has taken to address the problems discovered by the USCIRF and to improve the process for insuring accuracy of border statements if they want them treated with a “presumption of reliability” in Immigration Court.
Instead, the BIA once again “stuck its collective head in the sand” and ignored the real due process, fairness, and integrity problems plaguing our asylum adjudication system at all levels!
We can only hope that some independent Court of Appeals will take a more critical and objective look at the “border statement issue” than the BIA has chosen to do in J-C-H-F.
I also hope that in the future, respondents’ counsel make better use of readily available public materials to challenge over-reliance on border statements than apparently was done in this case.

PWS

02-22-18

Due Process Forever!

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