🗽⚖️ PROVING OUR POINT, AGAIN: “Sir Jeffrey” & I Have Been Ripping The Garland BIA’s Contrived “Any Reason To Deny” Misinterpretations Of Nexus & PSG — 1st Cir. Is Latest To Agree With Us! — Espinoza-Ochoa v. Garland

Kangaroos
Turning this group loose on asylum seekers is an act of gross legal, judicial, and political malpractice by the Biden Administration and Merrick Garland!
https://www.flickr.com/photos/rasputin243/
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community: 

http://media.ca1.uscourts.gov/pdf.opinions/21-1431P-01A.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-psg-and-nexus-victory-at-ca1—espinoza-ochoa-v-garland

“Here, the IJ and BIA found, and the government does not dispute, that Espinoza-Ochoa credibly testified that he experienced harm and threats of harm in Guatemala that “constitute[d] persecution.” But the agency concluded that Espinoza-Ochoa was still ineligible for asylum for two reasons. First, it held that Espinoza-Ochoa had failed to identify a valid PSG because the social group he delineated, “land-owning farmer, who was persecuted for simply holding [the] position of farmer and owning a farm, by both the police and gangs in concert,” was impermissibly circular. Second, the IJ and BIA each held that, regardless of whether his asserted PSG was valid, the harm Espinoza-Ochoa experienced was “generalized criminal activity” and therefore was not on account of his social group. We conclude that the BIA committed legal error in both its PSG and nexus analyses. We first explain why Espinoza-Ochoa’s PSG was not circular and then evaluate whether his PSG was “at least one central reason” for the harm he suffered. Ultimately, we remand to the agency to reconsider both issues consistent with this opinion. … For all these reasons, we agree with Espinoza-Ochoa that legal error infected both the PSG and nexus analyses below. Accordingly, we GRANT the petition, VACATE the decision below, and REMAND for further proceedings consistent with this opinion.”

[Hats way off to Randy Olen!]

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

You’ve been reading about this damaging, deadly legal travesty going on during Garland’s watch:

🌲UNDER YOUR TREE:  A GIFT 🎁 FROM “SIR JEFFREY” CHASE OF THE ROUND TABLE 🛡️— “Asylum In The Time Of M-R-M-S-“ — “One reaction to this decision would have involved explaining that the Board’s illogical holding was reached not by error but by design, in furtherance of a restrictionist agenda; asking why the current administration hasn’t changed the makeup of a BIA specifically constructed to do exactly that . . . . But such talk would be of no practical help. What those representing asylum applicants and those in government deciding those claims need now is a path to negotiate this latest obstacle and still reach the correct result.”

🤯 MISFIRES: MORE MIXED MOTIVE MISTAKES BY BIA — “Expert” Tribunal Continues Underperforming In Life Or Death Asylum Cases! — Sebastian-Sebastian v. Garland (6th Cir.) — Biden Administration’s “Solution” To Systemic Undergranting Of Asylum & Resulting EOIR Backlogs: Throw Victims Of “Unduly Restrictive Adjudication” Under The Bus! 🚌🤮

How outrageous, illegal, and “anti-historical” are the Garland BIA’s antics? The classic example of Marxist-Leninist revolutionary persecutions involve targeting property owners, particularly landowners. Indeed, in an earlier time, the BIA acknowledged that “landowners” were a PSG. See, e.g., Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).

But, now in intellectually dishonest decisions, the BIA pretzels itself, ignores precedent, and tortures history in scurrilous attempts to deny obvious protection. These bad decisions, anti-asylum bias, and deficient scholarship infect the entire system. 

It makes cases like this — which could  and should have easily been granted in a competent system shortly after the respondent’s arrival in 2016 — hang around for seven years, waste resources, and still be on the docket. 

This is a highly — perhaps intentionally — unrecognized reason why the U.S. asylum asylum system is failing today. It’s also a continuing indictment of the deficient performance of Merrick Garland as Attorney General. 

Obviously, these deadly, festering problems infecting the entire U.S. justice system are NOT going to be solved by taking more extreme enforcement actions against those whose quest for fair and correct asylum determinations are now being systematically stymied and mishandled by the incompetent actions of the USG, starting with the DOJ!

🇺🇸 Due Process Forever!

PWS

12-28-23

  

🤯☠️🤮 BAD JUDGING TRIFECTA: BIA’s Poor Performance Tries The Patience Of The Ultra-Conservative 5th Circuit!

Three LemonsBy Auguste Renoir (1918} Public Realm
Three Lemons
By Auguste Renoir (1918}
Public Realm
The BIA pulls three lemons on an epic judging fail that left a sour taste in the mouths of Fifth Circuit Judges!

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/big-reversal-and-victory-at-ca5-argueta-hernandez-ii

On July 10, 2023, a Fifth Circuit panel dismissed Mr. Argueta-Hernandez’ petition for review for lack of jurisdiction, 73 F.4th 300.

On Dec. 5, 2023 the panel (Higginbotham, Graves, and Douglas) granted rehearing, granted the petition, vacated and remanded:

“Although we owe deference to the BIA, that deference is not blind. Here, where the BIA misapplied prevailing case law, disregarded crucial evidence, and failed to adequately support its decisions, we are compelled to grant the petition for review, vacate the immigration court decisions, and remand to BIA for further proceedings.”

[Hats way off to Alison Lo, Jonathan Cooper and Chuck Roth!]

Alison Lo, Esquire
Alison Lo, Esquire
Jonathan Cooper, Esquire
Jonathan Cooper, Esquire
Chuck Roth, Esquire
Chuck Roth, Esquire

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

Congrats to this all-star NDPA litigation team. Once again, the expertise and scholarship in asylum and immigration law is on the “outside,” the NDPA, rather than at EOIR where it is so much needed!

Judge Higginbotham is a Reagan appointee. Judge Graves was appointed by Obama. Judge Douglas is a Biden appointee.

Here’s what the “coveted trifecta of bad judging” looks like:

The BIA:

1) misapplied prevailing case law,

2) disregarded crucial evidence, and

3) failed to adequately support its decisions!

My only question is: Did they manage to get the ”A#” right?

Golden nugget: The 5th Circuit recognizes that under the Supremes’ decision in Cardoza-Fonseca: “A ‘reasonable degree’ [for establishing a “well founded fear”] means a ten percent chance.” This “seminal rule” is violated by BIA panels and Immigration Judges across the nation on a daily basis. It is also widely ignored by many Circuit panels.

Unlike the BIA, Judge Higgenbotham carefully and clearly explains how threats other than physical injury can amount to persecution — another “seminal rule” that too many EOIR adjudicators routinely ignore.

In sharp contrast to the BIA’s intentional “butchering” of the “mixed motive” doctrine in Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023), Judge Higgenbotham correctly articulates the meaning of “at least one central reason.” See https://immigrationcourtside.com/2023/12/04/☠️🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

He states:

By characterizing MS-13’s threats against Argueta-Hernandez and his family as
solely extortion, BIA disregards that he needed only to present “‘some
particularized connection between the feared persecution’” and the
protected ground in which his application for relief relies. . . . Such a rigorous standard would largely render nugatory the Supreme Court’s decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).”).

Precisely! Ignoring Cardoza-Fonseca and their own binding precedent in Matter of Mogharrabi is what the BIA does frequently in “manipulating the nexus requirement” to deny meritorious claims to qualified refugees who face real harm! It’s all part of the toxic anti-asylum bias and “any reason to deny culture” that still permeates EOIR under Garland!

The BIA is not allowed to “presume,” as they effectively did in M-R-M-S-, the lack of qualifying motivation in “family based” psg cases and place an undue burden on the respondent to “prove” otherwise. 

The panel also reams out the BIA for failure to follow basic rules and precedents requiring a separate CAT analysis.

Unlike the legal gobbldygook, obfuscation, doublespeak, and “canned” language that plagues many BIA opinions, Judge Higginbotham offers a clear, understandable, clinical explanation of asylum law and how it should be applied to what is actually a recurring situation in asylum law! 

Reading this very clear opinion, I couldn’t help but feel that it was a panel of “general jurisdiction” Federal Judges from a so-called “conservative Circuit” who understood the complexity and nuances of asylum law, while the BIA Appellate Judges were the “rank amateurs.” This reflects a criticism oft made by my Round Table colleague Hon. “Sir Jeffrey” Chase  that EOIR’s asylum training is grotesquely substandard — far below that readily available in the “private/NGO/academic” sector! What possible excuse could there be for this ongoing travesty at DOJ?

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges. His consistent, outspoken criticism of EOIR’s poor asylum training is proving all too true on a daily basis!

 

AG Garland continues to show a truly (and disturbingly) remarkable tolerance for poor judicial performance by his subordinates at the BIA. At the same time, he shows little, if any, concern for the deadly devastating impact of that bad judging on human lives and the way it corrodes our entire legal system!

The glaring, life-threatening legal and operational problems at EOIR are solvable. We should all be asking why, after three years in office, a Dem Administration has made such feeble efforts to bring long overdue leadership, substantive, and operational changes to “America’s worst court system?” Well into what was supposed to be a “reform” Administration, EOIR remains a steeped in the “culture of denial and bias against asylum seekers” actively furthered by the Trump Administration and NOT effectively addressed by Garland (although he concededly has made a few improvements)!

🇺🇸 Due Process Forever!

PWS

12-06-23

🇺🇸⚖️🗽👩🏽‍⚖️ NDPA ALERT ‼️ — APPLY TO BE A U.S. IMMIGRATION JUDGE — POSITIONS AVAILABLE, LOCATIONS “NEGOTIABLE” — Help Fix Our Justice System “From The Ground Up!” — Apply By Friday, Dec. 15!

I want you
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it!
Public Domain

https://www.justice.gov/legal-careers/job/immigration-judge-2#

Immigration Judge

SharepastedGraphic.png

Hiring Organization

Executive Office for Immigration Review (EOIR)

Hiring Office

Office of the Chief Immigration Judge

Job ID

DE-12215980-23-VG

Location:

5107 Leesburg Pike

Falls Church, VA 22041 – United States

Application Deadline:

Friday, December 15, 2023

About the Office

The agency is still considering referred applicants from the previous announcement posted September 25, 2023, under announcement number, IJ-12116877-23-VG. If you applied under that announcement and were referred for consideration, you need not reapply under this announcement.

This is an Excepted Service position. Upon completion of the required trial period, the position will be permanent. Additional positions may be filled from this announcement within 90 days of certificate issuance.

This position is in the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge. EOIR seeks highly-qualified individuals to join our team of expert professionals who serve as immigration adjudicators in this important Agency.

EOIR plays a pivotal role in the administration of the Nation’s immigration system. EOIR’s mission is to adjudicate immigration cases fairly, equitably, and efficiently at the trial and appellate level, governed by due process and the rule of law. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and other administrative hearings, applying the immigration laws while ensuring that adjudicators are impartial, that laws are applied humanely and equitably, that all parties are treated with respect and dignity, and that cases are resolved expeditiously and in accordance with the Administration’s priorities and all applicable laws and regulations.

EOIR consists of three adjudicatory components: the Office of the Chief Immigration Judge, which is responsible for managing the numerous immigration courts located throughout the United States where immigration judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of the immigration judges’ decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases. EOIR’s Headquarters is located in Falls Church, Virginia, about 10 miles from downtown Washington, DC.
As the federal agency whose mission is to ensure the fair and impartial administration of justice for all Americans, the Department of Justice is committed to fostering a diverse and inclusive work environment. To build and retain a workforce that reflects the diverse experiences and perspectives of the American people, we welcome applicants from the many communities, identities, races, ethnicities, backgrounds, abilities, religions, and cultures of the United States who share our commitment to public service.

Job Description

Immigration Judges preside in formal, quasi-judicial hearings. Proceedings before Immigration Judges include but are not limited to removal, and bond adjudications, and involve issues of removability as well as applications for relief such as asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, and adjustment of status.

Immigration Judges make decisions that are final, subject to appeal to the Board of Immigration Appeals. In connection with these proceedings, Immigration Judges exercise certain discretionary powers as provided by law, and are required to exercise independent judgment in reaching final decisions. Immigration Judges may be required to conduct hearings in penal institutions and other remote locations

Qualifications

In order to qualify for the Immigration Judge position, applicants must meet all of the following minimum qualifications:

  • Education: Applicants must possess a LL.B., J.D., or LL.M. degree. (Provide the month and year in which you obtained your degree and the name of the College or University from which it was conferred/awarded.)

AND

  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of any state, territory of the U.S., or the District of Columbia. (Provide the month and year in which you obtained your first license and the State from which it was issued.)

AND

  • Experience: Applicants must have seven (7) years of post-bar admission experience as a licensed attorney preparing for, participating in, and/or appealing court or administrative agency proceedings at the Federal, State or local level. Qualifying trial experience involves cases in which a complaint was filed with a court or administrative agency, or a charging document (e.g., indictment, notice of violation, or information) was issued by a court, administrative entity, a grand jury, or appropriate military authority. Relevant administrative experience includes cases in which a formal procedure was initiated by a governmental administrative body.

NOTE: Qualifying experience is calculated only after bar admission.

IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. If your resume does not support your assessment questionnaire answers, we will not allow credit for your response(s). Ensure that your resume contains your full name, address, phone number, email address, and employment information. Each position listed on your resume must include: From/To dates of employment (MM/YYYY-MM/YYYY or MM/YYYY to Present); agency/employer name; position title; Federal grade level(s) held, if applicable; hours, if less than full time; and duties performed. In addition, any experience on less than a full time basis must specify the percentage and length of time spent in performance of such duties.

Additional information

This is an Excepted Service position, subject to a probationary period. The initial appointment is for a period not to exceed 24 months. Conversion to a permanent position is contingent upon appointment by the Attorney General.

Additional positions may be filled from this announcement within 90 days of certificate issuance.

Alternative work schedule options are available. Immigration Judges’ tour of duty may include Saturdays and Sundays.

There is no formal rating system for applying veterans’ preference to Immigration Judge appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in Immigration Judge hiring. Applicants eligible for veterans’ preference must claim their status when completing their application in the online application process and attach supporting documentation. (See the “Required Documents” section.)

Application Process

To apply for this position, please click the below link to access and apply to the vacancy announcement via USA Jobs: USAJOBS – Job AnnouncementLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. . Please read the announcement thoroughly. You must submit a complete application package by 11:59pm (EST) on 12/15/2023, the closing date of this announcement.

Salary

$149,644 – $195,000 per year

Number of Positions

Many vacancies (see below vacancy link for locations): Location Negotiable After Selection

Travel

50% or less – You may be expected to travel for this position.

Relocation Expenses

Not authorized

*         *         *

Department Policies

Equal Employment Opportunity:  The U.S. Department of Justice is an Equal Opportunity/Reasonable Accommodation Employer.  Except where otherwise provided by law, there will be no discrimination because of race, color, religion, national origin, sex – including gender identity, sexual orientation, or pregnancy status – or because of age (over 40), physical or mental disability, protected genetic information, parental status, marital status, political affiliation, or any other non-merit based factor.  The Department of Justice welcomes and encourages applications from persons with physical and mental disabilities. The Department is firmly committed to satisfying its affirmative obligations under the Rehabilitation Act of 1973, to ensure that persons with disabilities have every opportunity to be hired and advanced on the basis of merit within the Department of Justice. For more information, please review our full EEO Statement.

Reasonable Accommodations:  This agency provides reasonable accommodation to applicants with disabilities where appropriate. If you need a reasonable accommodation for any part of the application and hiring process, please notify the agency.  Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

Outreach and Recruitment for Qualified Applicants with Disabilities:  The Department encourages qualified applicants with disabilities, including individuals with targeted/severe disabilities to apply in response to posted vacancy announcements.  Qualified applicants with targeted/severe disabilities may be eligible for direct hire, non-competitive appointment under Schedule A (5 C.F.R. § 213.3102(u)) hiring authority.  Individuals with disabilities are encouraged to contact one of the Department’s Disability Points of Contact (DPOC) to express an interest in being considered for a position. See list of DPOCs.

Suitability and Citizenship:  It is the policy of the Department to achieve a drug-free workplace and persons selected for employment will be required to pass a drug test which screens for illegal drug use prior to final appointment.  Employment is also contingent upon the completion and satisfactory adjudication of a background investigation. Congress generally prohibits agencies from employing non-citizens within the United States, except for a few narrow exceptions as set forth in the annual Appropriations Act (see, https://www.usajobs.gov/Help/working-in-government/non-citizens/Links to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link.). Pursuant to DOJ component policies, only U.S. citizens are eligible for employment with the Executive Office for Immigration Review, U.S. Trustee’s Offices, and the Federal Bureau of Investigation. Unless otherwise indicated in a particular job advertisement, qualifying non-U.S. citizens meeting immigration and appropriations law criteria may apply for employment with other DOJ organizations. However, please be advised that the appointment of non-U.S. citizens is extremely rare; such appointments would be possible only if necessary to accomplish the Department’s mission and would be subject to strict security requirements. Applicants who hold dual citizenship in the U.S. and another country will be considered on a case-by-case basis. All DOJ employees are subject to a residency requirement. Candidates must have lived in the United States for at least three of the past five years. The three-year period is cumulative, not necessarily consecutive. Federal or military employees, or dependents of federal or military employees serving overseas, are excepted from this requirement. This is a Department security requirement which is waived only for extreme circumstances and handled on a case-by-case basis.

Veterans:  There is no formal rating system for applying veterans’ preference to attorney appointments in the excepted service; however, the Department of Justice considers veterans’ preference eligibility as a positive factor in attorney hiring. Applicants eligible for veterans’ preference must include that information in their cover letter or resume and attach supporting documentation (e.g., the DD 214, Certificate of Release or Discharge from Active Duty and other supporting documentation) to their submissions. Although the “point” system is not used, per se, applicants eligible to claim 10-point preference must submit Standard Form (SF) 15, Application for 10-Point Veteran Preference, and submit the supporting documentation required for the specific type of preference claimed (visit the OPM website, www.opm.gov/forms/pdf_fill/SF15.pdfLinks to other government and non-government sites will typically appear with the “external link” icon to indicate that you are leaving the Department of Justice website when you click the link. for a copy of SF 15, which lists the types of 10-point preferences and the required supporting document(s). Applicants should note that SF 15 requires supporting documentation associated with service- connected disabilities or receipt of nonservice-connected disability pensions to be dated 1991 or later except in the case of service members submitting official statements or retirement orders from a branch of the Armed Forces showing that their retirement was due to a permanent service-connected disability or that they were transferred to the permanent disability retired list (the statement or retirement orders must indicate that the disability is 10% or more).

USAO Residency Requirement:  Assistant United States Attorneys must reside in the district to which appointed or within 25 miles thereof.  See 28 U.S.C. 545 for district specific information.

*         *         *

This and other vacancy announcements can be found under Attorney Vacancies and Volunteer Legal Internships. The Department of Justice cannot control further dissemination and/or posting of information contained in this vacancy announcement. Such posting and/or dissemination is not an endorsement by the Department of the organization or group disseminating and/or posting the information.

Updated December 1, 2023

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

Yes, I’ve been highly critical of EOIR, particularly the BIA. But, to change the system for the better, we need the “best and brightest judges” at the “retail level” — the U.S. Immigration Courts!

So, in that spirit, let’s take a “deep dive” into the BIA’s latest misapplication of asylum law, Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023) looking to mine a “Hon. Sir Jeffrey Chase golden nugget” from disaster. See e.g., https://immigrationcourtside.com/2023/11/17/%E2%9A%96%EF%B8%8F-hon-sir-jeffrey-chase-mines-golden-nuggets-from-slurry-of-denial-varela-chavarria-v-garland-1st-cir/.%0A%0A

In the process of denying asylum to a family targeted by gangs in Mexico, the BIA says: 

The Immigration Judge’s finding that the cartel was motived by a desire to control the respondents’ land rather than their family membership is a permissible view of the evidence and is not clearly erroneous.

See, e.g., my recent post for additional commentary on this decision: https://immigrationcourtside.com/2023/12/04/☠%EF%B8%8F🤯-bia-trashes-normal-legal-rules-of-causation-jettisons-4th-cir-precedent-to-deny-family-based-psg-case-the-latest-anti-asylum-znger-from-falls-church-famil/.

This negative finding by the IJ was “permissible,” not “compelled.” That language admits that other fact-findings on the same evidence could also be “permissible.” Much depends on the individual Immigration Judge’s frame of reference and willingness to look for “reasons to protect” rather than defaulting to “reasons to reject.”

So, what if the IJ were able to see and understand asylum from the standpoint of the applicant, rather than defaulting to the EOIR “any reason to deny” approach? Fairer fact-findings below would require more careful review by the BIA. Rather than just being able to mindlessly affirm adverse findings below, the BIA would basically be legally bound to uphold more positive findings unless “clearly erroneous.”

Of course in their haste to deny some BIA panels are prone to violate the “clearly erroneous” standard to “get to no.” But, that increases the chances of Circuit reversal. See, e.g., Crespin Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (my case from Arlington).

Additionally, DHS can’t and doesn’t appeal every asylum grant, particularly when they are “fact bound.” I actually had ICE Assistant Chief Counsel say on the record in waiving appeal that while they respectfully disagreed with my fact-findings, they recognized that they were not “clearly erroneous” for purposes of appeal. (Other times they actually agreed after I had stated my detailed findings and analysis, sometimes actually repeating during closing arguments the basic analysis I would have reached on the record we had just made.)

Better judging below can actually cut off and discourage backlog building “let’s spin the bottle” appeals by DHS encouraged by the BIA’s systemic failure to consistently uphold the rights of asylum seekers and their “unduly restrictive” interpretations of asylum law! 

Buried amongst the morass of poor administration and bad appellate judging at EOIR, many “true expert” IJs are making great decisions and saving lives on a daily basis. One of the “best kept secrets” at EOIR — often intentionally obscured by both EOIR and the media (not to mention GOP White Nationalist nativists) — is that as of this summer over half of all those who passed “credible fear” — 55% — received asylum grants if they were actually able to get to merits hearings at today’s backlogged EOIR! See, e.g., https://humanrightsfirst.org/wp-content/uploads/2023/08/Asylum-grant-rates-fact-sheet-August-2023.pdf. 

That’s an impressive rate, given that the system is stacked against asylum applicants! It also highlights the total insanity of today’s discussions on the Hill of how to artificially heighten standards to bar asylum seekers and promote more arbitrary wrongful denials of life-saving protection. What’s needed is better judging and more realistic and humane policies, NOT more cruelty and misapplications of asylum law!

As I have pointed out along with others, asylum grant rates would be much higher with better judges at EOIR and better precedents from the BIA. Better guidance would mean more cases granted at the Asylum Office and Immigration Court levels and a more timely and efficient system that advances and promotes due process, rather than inhibiting it!

But, it can’t all be done “from the outside!” Better Immigration Judges — true asylum experts with “hands on” experience representing applicants before EOIR and the Asylum Office — are essential to rebuilding EOIR as a functional court system. 

For example, one of the expert recommendations from the very recent Women’s Refugee Commission study of asylum reception, resettlement, and processing was that: “One pro se assistance goal is to incentivize immigration judges to take a closer look at pro se asylum cases.”

https://www.womensrefugeecommission.org/research-resources/opportunities-for-welcome-lessons-learned-for-supporting-people-seeking-asylum-in-chicago-denver-new-york-city-and-portland-maine/

But, this laudable goal presupposes Immigration Judges who are experts in asylum law and able to “work their way through” some of the inherent barriers to justice in pro se Immigration Court cases rather than submitting to the “artificial production pressures and any reason to deny culture” that still exists at much of EOIR. Sadly, not all current IJs have this ability. Moreover, the BIA has provided defective leadership and guidance. EOIR judicial training on asylum does not measure up to much of that readily available in the private/NGO sector. See, e.g., VIISTA Villanova.

Many practitioners who have contacted me here at “Courtside” lament that their lives and their client’s futures would be better if they only were appearing before Immigration Judges who actually understood asylum law from a protection standpoint. They are frustrated by having their fine presentations and great arguments “shrugged off” with “predetermined boiler plate denials” citing negative language from the BIA — often ignoring what actually happened or was proved at trials.

Instead of being destined to forever be frustrated by EOIR’s shortcomings, YOU now have a chance to “be that judge” the one who understands asylum law, has seen the defects in EOIR decision-making, who doesn’t view denial as “preordained,” and will require both parties fairly to meet their burdens. (Ironically, there are many places where the asylum regulations still place the burden of proof on DHS, even if many IJs and BIA panels are unwilling to enforce them.)

So, get in those applications for EOIR judgeships! It’s a great way to show leadership by improving the system from the inside while saving lives in the process! Better judges for a better America — starting at the “retail  level!” 

🇺🇸 Due Process Forever!

PWS

12-05-23

☠️👎🏼 ANOTHER SUPER-SHODDY PERFORMANCE BY BIA ON CENTRAL AMERICAN ASYLUM OUTED BY 9TH CIR. — Reyes-Corado v. Garland

Four Horsemen
BIA Asylum Panel In Action. It’s hard to ignore the BIA’s violent, deadly, abuse of asylum seekers, particularly those of color. But, somehow, Merrick Garland, Lisa Monaco, Vanita Gupta, Kristen Clarke, and other DOJ officials manage to look the other way, as do Congressional Dems! Too busy fecklessly complaining about Justice Clarence Thomas to look at their own house?
Albrecht Dürer, Public domain, via Wikimedia Commons

SUMMARY** Immigration

The panel granted a petition for review of the Board of Immigration Appealsdenial of Francisco Reyes-Corados motion to reopen removal proceedings based on changed circumstances, and remanded.

The Board denied reopening based, in part, on Reyes- Corados failure to include a new application for relief, as required by 8 C.F.R. § 1003.2(c)(1). The government acknowledged that under Aliyev v. Barr, 971 F.3d 1085 (9th Cir. 2020), the Board erred to the extent it relied on Reyes- Corados failure to submit a new asylum application for relief. Here, however, unlike in Aliyev, Reyes-Corado did not include his original asylum application with his motion to reopen. Consistent with the plain text of § 1003.2(c)(1) and various persuasive authorities, the panel held that a motion to reopen that adds new circumstances to a previously considered application need not be accompanied by an application for relief.

The Board also denied reopening after concluding that Reyes-Corado did not establish materially changed country conditions to warrant an exception to the time limitation on his motion to reopen. Reyes-Corado initially sought asylum relief based on threats he received from his uncles family members to discourage him from avenging his fathers murder by his uncles family. The Board previously concluded that personal retribution, rather than a protected

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

REYES-CORADO V. GARLAND 3

 ground, was the central motivation for the threats of harm. In his motion to reopen, Reyes-Corado presented evidence of persistent and intensifying threats.

As an initial matter, the panel explained that the changed circumstances Reyes-Corado presented were entirely outside of his control, and thus were properly understood as changed country conditions, not changed personal circumstances. The panel also held that these changed circumstances were material to Reyes-Corados claims for relief because they rebutted the agencys previous determination that Reyes-Corado had failed to establish the requisite nexus between the harm he feared and his membership in a familial particular social group. The panel explained that the Boards previous nexus rationale was undermined by the fact that the threats, harassment, and violence persisted despite the lack of any retribution by Reyes-Corados family against his uncles family for at least fourteen years after Reyes-Corados fathers murder, and where multiple additional family members were targeted, including elderly and young family members who would be unlikely to carry out any retribution. Thus, the panel held that the Board abused its discretion in concluding that Reyes-Corados evidence was not qualitatively different than the evidence at his original hearing.

The panel also declined to uphold the Boards determination that Reyes-Corado failed to establish prima facie eligibility for relief because Reyes-Corados new evidence likely undermined the Boards prior nexus finding, and the Board applied the improperly high one central reason” nexus standard to Reyes-Corados withholding of removal claim, rather than the less demanding a reason” standard.

4 REYES-CORADO V. GARLAND

 The panel remanded for the Board to reconsider whether Reyes-Corado established prima facie eligibility for relief and to otherwise reevaluate the motion to reopen in light of the principles set forth in the opinion.

COUNSEL

David A. Schlesinger

(argued), Kai Medeiros, and Paulina

Reyes, Jacobs & Schlesinger LLP, San Diego, California, for Petitioner.

 

Enitan O. Otunla (argued), Trial Attorney; Bernard A. Joseph, Senior Litigation Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice; Washington, D.C.; for Respondent.

OPINION

KOH, Circuit Judge:

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

Congrats to David A. Schlesinger & colleagues!

I’ve often discussed  EOIR’s all-too-frequent use of bogus nexus determinations – basically turning normal legal rules on causation on their head – to deny protection to bona fide refugees, particularly those from Latin America and Haiti.

There is a growing body of evidence that EOIR is systematically unfair to Central American asylum applicants. But, Garland, his lieutenants, and Congressional Dems have basically looked the other way as this stunning, widespread denial of due process and equal protection under our Constitution continues to unfold in plain view on their watch! Why? Where’s the dynamic, values-based, expert, ethical leadership we should expect from a Dem Administration?

This particular example of substandard “judging” literally reeks of pre-judgement and “endemic any reason to denialism!”

Dems wring their collective hands about Justice Clarence Thomas, who is essentially unaccountable and untouchable! But, they have done little or nothing to address serious competence, bias, and ethical issues festering in a major “life or death” Federal Court System they totally control!

Lots of “talk,” not much “walk” from Dems!

🇺🇸 Due Process Forever!

PWS

08-15-23

🌊 TSUNAMI OF BAD ☠️ BIA DECISIONS HITS GARLAND’S DOJ! — WRONG On Nexus (4th, 2-1); WRONG On NTA (4th, 2-1); WRONG On Agfel (8th); WRONG On Past Political Persecution In Cameroon (5th); WRONG On Experts (1st)!

Tsunami
Tsunami of bad BIA decisions hits as Garland ignores needed housecleaning and due process reforms @ EOIR!
Creative Commons License

Dan Kowalski reports for LexisNexis Immigration Community:

1. NEXUS

CA4 on Nexus, Religious Persecution: Chicas-Machado v. Garland

https://www.ca4.uscourts.gov/opinions/211381.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-religious-persecution-chicas-machado-v-garland

“In sum, the BIA erred in finding that Chicas-Machado was not a refugee under the INA due to a lack of nexus to a protected ground, religion. Chicas-Machado demonstrated past persecution on account of religion, and is therefore entitled to the presumption of a well-founded fear of future persecution. See Qiao Hua Li, 405 F.3d at 176-77. Recognizing the BIA’s error, we grant the petition for review and remand the case for further proceedings. Upon remand, the BIA must determine whether the Government can rebut the presumption of a well-founded fear of future persecution. 8 If the BIA concludes that Chicas-Machado is eligible for asylum on remand, it should reconsider her withholding of removal claim. See Sorto-Guzman, 42 F.4th at 450. We decline to reach all other issues raised on appeal as to her asylum and withholding of removal claims, and direct the BIA to reevaluate those claims following its reconsideration of Chicas-Machado’s asylum application. See Arita-Deras v. Wilkinson, 990 F.3d 350, 361 n.10 (4th Cir. 2021) (declining to reach the merits of withholding of removal appeal after finding error in the BIA’s asylum analysis).”

[Hats off to Daniel Thomann!  Listen to the oral argument here.]

Daniel Thomann ESQ
Daniel Thomann
ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.comhttps://www.ca4.uscourts.gov/opinions/211381.P.pdf

2. NTA

CA4 on Defective NTA: Lazo-Gavidia v. Garland

https://www.ca4.uscourts.gov/opinions/202306.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-defective-nta-lazo-gavidia-v-garland

“This petition raises important questions about proper notice in removal proceedings. Federal immigration law mandates that the government provide a noncitizen with a written notice to appear that contains certain critical details about her removal hearing, including the “time and place” of the proceedings. In a pair of recent decisions, the Supreme Court has clarified that the notice to appear must be a single document containing all statutorily required information. See Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021); Pereira v. Sessions, 138 S. Ct. 2105 (2018). Petitioners Azucena Aracely Lazo-Gavidia and her minor son were ordered removed in absentia. The immigration judge denied their motion to reopen the removal proceedings and the Board of Immigration Appeals dismissed their appeal. Because Lazo-Gavidia and her son received defective notices to appear, we grant their petition, vacate the Board’s order dismissing their appeal, and remand for further proceedings.”

[Hats off to Glenn Fogle!  Listen to the oral argument here.]

Glenn Fogle ESQ
Glenn Fogle ESQ

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

3. AgFel

CA8 on Shoplifting: Thok v. Garland

http://media.ca8.uscourts.gov/opndir/23/07/222508P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca8-on-shoplifting-thok-v-garland

“Because an offender can be convicted under Nebraska’s shoplifting statute when he acts with an intent not encompassed by a generic theft offense, we hold that the statute sweeps more broadly than the generic federal offense. Accordingly, the BIA erred in finding that Thok was removable for having committed a theft offense—and, thus, an aggravated felony—based upon his Nebraska shoplifting convictions. … For the foregoing reasons, we grant the petition for review, vacate the BIA’s order, and remand the matter to the BIA for further proceedings consistent with this decision.”

[Hats off to Jaime Arango!  Listen to the oral argument here.]

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

4. Past Political Persecution In Cameroon

Unpub. CA5 Victory: Naah v. Garland

https://www.ca5.uscourts.gov/opinions/unpub/20/20-61059.0.pdf

“Mercy Naah, a native of Cameroon, was charged as removable from the United States. She applied for asylum, withholding of removal, and protection under the Convention Against Torture. Naah demonstrated that she is unable or unwilling to return to Cameroon because of past persecution on account of her political opinion. Accordingly, we grant her petition for review as to her asylum and withholding of removal claims and remand for proceedings consistent with this opinion.”

[Hats off to Danielle Beach-Oswald!]

Danielle Beach-Oswald ESQ
Danielle Beach-Oswald ESQ

 

 

Hon. “Sir Jeffrey” Chase reports for the Round Table 🛡️⚔️:

5. Experts

Unpublished 1st Cir. Victory [Experts]

[T]o keep it brief, we were on the winning side in an unpublished 1st Cir. decision issued today in which the IJ and BIA wrongly gave little weight to an country expert’s opinion on the risk petitioner faced in a CAT case. Decision attached. The Round Table filed an amicus brief in this one. Another great win for SangYeob Kim, Gilles Bissonnette and the ACLU of New Hampshire!

More to follow. We continue to make a difference!

Best, Jeff

 

I have just learned that counsel is filing a motion to publish. There is good language regarding the evidentiary weight of one qualified as an expert who testifies credibly. The decision points out that an expert need not have personal knowledge of the facts underlying their opinion, as long as such opinion is based on sufficient facts or data;” that “An expert cannot be “undermined by his reliance on facts . . . that have not been disputed;” and that where an IJ makes factual findings not consistent with the expert’s opinion, it is important for the IJ to explain the reasons behind those findings.

1st on Experts

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

Why do Dems routinely shoot themselves in the foot on immigration while driving a wedge between Dems in power and the immigration/social justice advocates who helped them get there?

In each of the 4th Circuit cases here, our Dem AG aligned himself with restrictionist positions advocated by dissenting Bush II and Trump appointees, while eschewing the far better-reasoned, more practical approaches advocated by expert advocates and adopted by the jurists in the majority who are committed to due process. 

As the 4th Circuit majority in Chicas-Machado cogently points out, the BIA’s “excessively narrow reading” of nexus conflicts with both the statutory language and practical considerations regarding the motivation of persecutors (not to mention riding roughshod over existing, binding Circuit precedent). The BIA has a long and troubling history of ignoring “mixed motive” to deny asylum.

Yet, instead of improving under Dems, the BIA’s abuse of nexus to wrongfully disqualify qualified refugees from protection has continued to metastasize under Garland! It’s all part of the anti-immigrant, “any reason to deny” culture at EOIR, promoted by Sessions and Barr and not effectively addressed by Garland.

Happy to see another Round Table victory on use of experts. But, the 1st Circuit should have published this instructive decision. Hopefully, they now will!

As we know, the BIA’s systemic mishandling of experts is a chronic problem, particularly as the BIA intentionally overcomplicates the law, as a “deterrent,” so experts are almost a requirement for success. (Even though it is well-known that many asylum applicants have difficulty just getting competent pro bono lawyers to represent them, let alone the services of “pro bono experts.”). Every example helps expose the BIA’s professional misconduct, for which Garland and his DOJ leadership have shown an unusual and disturbing tolerance.

If you don’t bring an expert, they deny for failure to sustain your B/P! If you do bring an expert, they minimize, misconstrue, or ignore their testimony!

“Catch 22” — the applicant loses either way!

Experts are also important because it’s an area where the Article IIIs’ experience with experts in civil litigation far exceeds the BIA’s. Therefore, they are apt to recognize the BIA’s sharp divergence from the weight and respect ordinarily given to experts in civil litigation. Hence, we have had substantial success with the Circuits in challenging the BIA’s continuing, inappropriately dismissive, treatment of experts.

The BIA routinely uses sloppy, often internally inconsistent, “boilerplate” in their decisions. Yet, they somehow find time to “nitpick” expert testimony looking for every minor or insignificant “omission” or “discrepancy” to discredit the expert! What a disgrace!

Finally, on Naah v. Garland, a special “shout out” to long-time NDPA stalwart and role model Danielle Beach-Oswald on her victory in a Cameroonian political persecution case in the 5th Circuit. As the decision reflects, asylum victories on non-procedural issues are hard to come by in the 5th. Danielle was a “Legacy Arlington Immigration Court regular” during my time on the bench. This just further cements her status as “one of the best in the business!”

Congrats, Danielle, and thanks for all you do!

Think how much better this system would function with a BIA of real subject-matter experts focused on due process and fundamental fairness — rather than helping out their “partners” at DHS enforcement and protecting their careers in the process! And, what if we also had a Dem AG focused on due process for immigrants in “his” courts, rather than being asleep at the switch and complicit in some of the worst, anti immigrant, biased, backlog building “jurisprudence” rolled out by the Federal “justice” system! 

What if once in office, Dems actually courageously stood up for the immigrants, advocates, and values they claim to represent during elections?

🇺🇸 Due Process Forever!

PWS

07-14-23

🏴‍☠️ FOURTH FINDS BIA’S NEXUS ABUSE CONTINUES UNDER GARLAND 🤮 — Dem AG Permits His “Courts” To Engage In Specious “Any Reason To Deny” Misconduct That Artificially Suppresses Asylum Grants!  ☠️ — Marvin A.G. v. Garland (published)!

Four Horsemen
BIA Asylum Panel In Action — Garland, a former Article III Appeals Judge, employs appellate judges who routinely misconstrue asylum law to wrongfully deny legal protection, thus artificially suppressing what should be much higher success rates for asylum seekers in a functional legal system properly applying asylum law! The law and precedents establishing a properly generous application of the well-founded fear standard for asylum are routinely ignored or disingenuously avoided by Garland’s biased anti-asylum “courts!” BIA panels routinely butcher “mixed motive” cases to deny asylum to deserving refugees!
Albrecht Dürer, Public domain, via Wikimedia Commons

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.ca4.uscourts.gov/opinions/221499.P.pdf

https://www.lexisnexis.com/community/insights/legal/immigration/b/insidenews/posts/ca4-on-nexus-marvin-a-g-v-garland

“Upon our review, we conclude that the Board abused its discretion by applying an incorrect legal standard in its nexus analysis for the petitioner’s asylum and withholding of removal claims. We also hold with regard to these two claims that the Board abused its discretion by arbitrarily disregarding the petitioner’s testimony about the threat of future persecution. However, we reject the petitioner’s argument that the Board abused its discretion with regard to his CAT claim. The Board provided specific reasons for finding the petitioner’s testimony insufficient to meet his burden of proof, and appropriately evaluated the evidence under the futility exception. We thus grant in part and deny in part the petition for review, vacate in part the Board’s order denying reconsideration, and remand for further proceedings consistent with this opinion. … We thus conclude that the IJ erred by applying an incorrect standard in the nexus analysis, and that the Board abused its discretion because it “compounded the [IJ’s] error by failing to recognize it.” Perez Vasquez, 4 F.4th at 223. In addition, both the IJ and the Board failed to address substantively the petitioner’s testimony about the threat of future persecution. … The Board thus applied the incorrect legal standard for the nexus analysis and arbitrarily disregarded relevant evidence. Accordingly, we hold that the Board abused its discretion in denying the petitioner’s motion to reconsider his asylum and withholding of removal claims, and we remand for the agency to “meaningfully consider [the petitioner’s] evidence” under the correct legal standard.”

[Hats off to Eric Suarez!]

Eric Suarez
Eric Suarez ESQUIRE
Partner
Sanabria & Associates
PHOTO: Firm website

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

EOIR judges and the BIA routinely butcher “mixed motive” cases like this one! This endemic problem at EOIR badly distorts asylum adjudication nationwide, produces false statistics suppressing the significant number of wrongful asylum denials (particularly targeting asylum applicants of color for unfair, unjust adjudications), and refutes the Article III’s disingenuous treatment of the BIA as an “expert tribunal” entitled to Chevron deference. In that way, it seriously undermines the integrity of our entire judicial system!

In this case, counsel specifically pointed our the BIA’s errors in a timely motion to reconsider, only to have it “blown off” with basically fabricated boilerplate BS!  

The petitioner appealed the IJ’s decision to the Board. After the Board affirmed the IJ’s conclusions and dismissed the appeal, the petitioner filed a motion to reconsider. The Board denied the motion, concluding that the IJ did not clearly err in its nexus determination, and reiterating the IJ’s conclusion that family membership was “incidental or subordinate” to the other reasons the gang targeted the petitioner, namely, for monetary gain and gang recruitment.

Another of my favorite parts of this decision addresses the BIA’s pronounced tendency to invent specious “non-protected” reasons for the persecution and then dishonestly characterize that at the sole or primary motivations. 

The Board’s cursory conclusion that the gang had targeted the petitioner for “monetary gain and gang recruitment” does not remedy the Board’s error. Indeed, we fail to see how family membership necessarily was subordinate to these other motivations when the sole basis the petitioner presented for his fear of future persecution was that the gang would target him due to his relationships with his siblings.

Friends, this is NOT the competent, impartial, professional, expert adjudication that due process and fundamental fairness requires! Nor is it the improvement from Trump’s institutionalized White Nationalist approach to asylum and immigration promised by Biden and Harris during their 2020 campaign! It’s basically a “bait and switch” by Dems! Additionally, it sets a horrible example for Immigration Judges (many of whom lack relevant expertise in asylum law) and Asylum Officers nationwide.

Garland’s has refused to “clean house” and employ solely competent, unbiased, impartial asylum experts as BIA Appellate Immigration Judges, selected on a merit basis from among those possessing the requisite practical asylum expertise, temperament, and  widely-acknowledged qualifications for these critically important judgeships. 

Garland’s failure to perform his job, in turn, is having a deleterious effect on every aspect of our asylum, protection, and immigration systems and is undermining the entire rule of law. It also promotes false narratives about asylum seekers and inhibits effective representation of this vulnerable and deserving group. It’s wrong; it’s inexcusable, and it’s a “big deal!’

I leave you with this thought from an expert who actually practices before EOIR and understands what competent asylum adjudication should be:

We really do need better judges at the BIA. [Hope that this] decision that will make a dent in their current dysfunction.

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges — Maybe HE should be in charge of selecting and training BIA Appellate Immigration Judges!

Or as my Round Table colleague Hon. “Sir Jeffrey” Chase suggests:

Maybe the Board should read my article on the proper test for nexus:

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

Great idea! But, don’t hold your breath!

SeniorCircuit Judge Barbara Milano Keenan wrote the opinion, in which Judge Thacker and Judge Heytens joined.

🇺🇸 Due Process Forever!

PWS

06-28-23

 

 

🤪TWILIGHT ZONE: IN THE SURREAL WORLD OF EOIR, IT’S UP TO NDPA ADVOCATES & CIRCUITS TO ENFORCE LEGAL STANDARDS ON THE “ANY REASON TO DENY” BIA! — Will Lawless, “Trump-Packed Parody Of A Court System” Be Major Legacy Of Former Federal Judge Merrick Garland? — BIA Goes Down Again In 9th Cir!👎🏼

Twilight Zone
CAUTION: You are about to enter AG Merrick Garland’s “Twilight Zone” — where judges operating in a parallel universe make surreal decisions without regard to facts, law, or common sense applicable in this world!
The Twilight Zone Billy Mumy 1961.jpg
:PHOTO: Public Realm

Dan Kowalski reports for LexisNexis Immigration Community:

CA9 on Standard of Review: Umana-Escobar v. Garland

https://cdn.ca9.uscourts.gov/datastore/opinions/2023/03/17/19-70964.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-standard-of-review-umana-escobar-v-garland#

“Josue Umana-Escobar petitions for review of the Board of Immigration Appeals (“BIA”) order upholding the immigration judge’s (“IJ”) denial of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). He also challenges the BIA’s determinations that defects in the Notice to Appear (“NTA”) did not require termination of his proceedings and that the BIA lacked authority to administratively close his case. We have jurisdiction under 8 U.S.C. § 1252. We dismiss the defective NTA claim for lack of jurisdiction and deny the petition as to the CAT claim. We grant the petition and remand as to the administrative closure issue, given the government’s recommendation that we should do so based on an intervening decision by the Attorney General. We also grant the petition and remand as to the asylum and withholding of removal claims because the BIA applied the wrong standard in reviewing the IJ’s determination that the evidence failed to establish the requisite nexus between a protected ground and past or future harm.”

[Hats off to Sabrina Damast and Jose Medrano!]

 

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

cell/text/Signal (512) 826-0323

@dkbib on Twitter

dan@cenizo.com

Free Daily Blog: www.bibdaily.com

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

The initial hearing was in 2013, merits hearing in 2017, Circuit remand in 2023. After a decade, a fairly routine asylum case is still unresolved! 

This case probably shouldn’t even be in Immigration Court, as it was affected by “Gonzo” Sessions’s wrong-headed, backlog-building, interference with administrative closing, later reversed by Garland, but not until substantial, systemic damage to EOIR had already been caused.

When it’s “any reason to deny, any old boilerplate gets by!”🤬 Bogus “no nexus” findings — often ignoring the “at least one central reason” standard and making mincemeat out of the “mixed motive doctrine” — are a particular EOIR favorite! That’s because they can be rotely used to deny asylum even where the testimony is credible, the harm clearly rises to the level of persecution, is likely to occur, and relocation is unreasonable! 

In other words, it allows EOIR to function as part of the “deterrence regime” by sending refugees back to harm or death. What better way of saying “we don’t want you” which has become the mantra of Biden’s “Miller Lite” policy officials! 

GOP, Dems, neither are competent to run a court system. That’s why we need an independent Article I court!⚖️

🇺🇸 Due Process Forever!

PWS

03-20-23

👎🏽ANOTHER 4TH CIRCUIT PUTDOWN FOR GARLAND — AO & IJ COMPLETELY BOTCH “REASONABLE FEAR REVIEW” — OIL COMPOUNDS PROBLEM BY ADVANCING SEMI-FRIVOLOUS DEFENSES!

Dan Kowalski reports for LexisNexis:

Tomas-Ramos v. Garland

https://www.ca4.uscourts.gov/opinions/201201.P.pdf

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca4-on-nexus-tomas-ramos-v-garland#

“After Adan de Jesus Tomas-Ramos, a citizen and native of Guatemala, reentered the United States illegally in 2018, a removal order previously entered against him was reinstated. But because Tomas-Ramos expressed a fear of returning to Guatemala, an asylum officer conducted a screening interview to determine whether he reasonably feared persecution or torture in his home country. The asylum officer determined that Tomas-Ramos failed to establish a reasonable fear of such harm, and so was not entitled to relief from his reinstated removal order. An Immigration Judge (“IJ”) concurred with that determination. Tomas-Ramos now petitions for review of the IJ’s order on two grounds. He first contends that the IJ’s finding that he lacked a reasonable fear of persecution or torture was erroneous. We agree. The primary ground for the IJ’s decision was that there was no “nexus” between the harm Tomas-Ramos faced and a protected ground. But the agency incorrectly applied the statutory nexus requirement. Instead, the record compels the conclusion that Tomas-Ramos was persecuted on account of a protected ground, in the form of his family ties. And in light of that error, we cannot determine that the other reason given by the IJ for her decision – that Tomas-Ramos could avoid harm by relocating – was supported by substantial evidence. Accordingly, we grant the petition for review, vacate the agency’s decision, and remand for further proceedings.”

[Hats off to Michael D. Lieberman, Simon Y. Sandoval-Moshenberg, Stacy M. Kim, Paul F. Brinkman, and Michael A. Francus!]

 

Daniel M. Kowalski

Editor-in-Chief

Bender’s Immigration Bulletin (LexisNexis)

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

    • DOJ’s error-studded performance (or lack thereof) in this case is disgraceful!
    • I guarantee that there are plenty of other unjust, legally defective reasonable fear and credible fear decisions where these came from. Just most folks never get any meaningful judicial review.
    • Both the IJ and the AO got the basics of nexus and the applicable 4th Circuit case law totally wrong here. How are is this acceptable performance from what are supposed to be “expert” courts? Why hasn’t Garland brought in real experts, committed to due process and best practices, to take charge and straighten out this mess?
    • Disturbingly, the Biden Administration wants to turn this type of clearly inadequate procedure with poorly trained officers and judges and incorrect applications of the law loose on the merits determinations for all asylum seekers at the border!
    • Rather than being a check on bad judges, Garland’s OIL continues to “defend the indefensible” with arguments that don’t meet “the straight-face test.” Aren’t ethical codes equally applicable to Government lawyers?
    • Worse yet, Garland continues to unethically defend the scofflaw behavior of the Biden Administration by using a Stephen Miller era “COVID pretext” to deny most asylum seekers at the Southern Border any process, even the pathetic one used here!
    • The “wheels have come off” @ Garland’s DOJ and he’s driving on the axel hubs! When is someone going to pull him over and make him fix it?
    • Believe it or not, these are life or death cases! ☠️ Why is Garland allowed to treat the lives and rights of migrants and those associated with them so frivolously?
    • The IJ’s attempt to bar the R’s attorney from participating in the “credible fear” review is ridiculous! It shows the deep problems in Garland’s broken system which too often is deaf to due process, hostile to attorneys, and immune from common sense and best practices! Why would the “default” for regulatory silence be “no participation” rather than a “strong presumption that attorneys can fully participate?” What kind of “court” bars attorneys from speaking for their clients? Why would any judge not want to listen to attorneys, who are there to help them make correct decisions? The IJ’s conduct here was particularly egregious given that she had already made a clearly wrong decision before cutting off the attorney’s attempt to point out her errors! What a complete farce that Garland has failed to address!
    • This is another case where Circuit Judge Allison Jones Rushing, a Trump appointee with solid conservative credentials, once thought to be a possible contender for the “ACB seat,” joined her colleagues (Judge Harris and Chief Judge Gregory) to overturn a wrong, anti-immigrant decision by EOIR. Her approach in this and another recent case shows more sensitivity to due process, scholarship, and the rights of individual immigrants than many decisions emanating from Biden’s Immigration Courts under Garland.
    • I’m not suggesting that Judge R is necessarily going to become a leading defender of due process for immigrants. But, based on these somewhat random “snippets,” she seems more “reachable” and open to sound arguments on the issues than some other Trump appointees, points worth keeping in mind for NDPA advocates!
    • She’s also young. So, she will be reviewing immigration cases and making law for decades to come.

🇺🇸Due Process Forever!

PWS

02-02/22

🇺🇸⚖️🗽ATTN NDPA: LAW YOU CAN USE: Hon. Jeffrey S. Chase’s “Practical Scholarship” Outs Garland BIA’s Disingenuous Approach To “Nexus” — Use These Arguments To Litigate Garland’s Dysfunctional “Denial Factory” To A Standstill!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

https://www.jeffreyschase.com/blog/2021/12/21/the-proper-test-for-nexus1

The Proper Test for Nexus

On November 4, the Board of Immigration Appeals issued its precedent decision in Matter of M-F-O-.1,2  At first glance, the decision seems to be a correction regarding  when the accrual of continuous presence for voluntary departure ends, necessitated by a Supreme Court decision rejecting  the Board’s prior take on the question.  The headnote summarizing the decision mentions only this issue.

However, reading further into the decision reveals an additional motive.  It turns out that the respondent in M-F-O- sought asylum; it was the denial of that protection that brought voluntary departure into play.  The respondent stated that he feared being persecuted by a violent  gang on account of his membership in a particular social group consisting of “indigenous Guatemalan youths who have abstained from joining the street gangs.”

The BIA uncharacteristically assumed the above group to be a valid one for asylum purposes.  In doing so, the Board was aware of proposed regulations being drafted by the Departments of Justice and Homeland Security, which are likely to create a more inclusive standard for particular social group determinations than that currently employed by the Board.

But in M-F-O-, the Board sought to make the point that even where such groups are legally recognized, no asylum will be forthcoming unless a nexus is found between the group membership and the harm.  And the Board in upholding the asylum denial in M-F-O- aimed to bolster a standard it has employed in recent years to make it remarkably easy to deny the existence of such a nexus.

Our asylum laws state that a nexus exists when persecution is “on account of” one of the five statutorily-protected grounds.3  Whether or not a nexus is found depends on what is meant by those three words.  Let’s therefore take a deeper dive into the meaning of that term.

The Traditional Standard 4

“On account of” is by no means a phrase specific to immigration law; it long predates the Refugee Act of 1980.  The Fifteenth Amendment of the U.S. Constitution, ratified in 1870, states in part that  “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  The Nineteenth Amendment, ratified in 1920, similarly prohibits denying or abridging one’s right to vote “on account of sex.”

As to how that term should be interpreted, the Supreme Court recently addressed the question outside of the asylum context in Bostock v. Clayton County,5  a case involving employment discrimination under Title VII of the 1964 Civil Rights Act.  The Court explained that the statutory term in question, “because of,” carries the same legal meaning as “on account of.”6

The Court continued that the standard requires a court to apply the “simple” and “traditional” “but-for” test.  As the Court explained, “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.”7

The Court recognized that the “but-for” standard is a “sweeping” one, acknowledging that “[o]ften, events have multiple but-for causes.”8  The Court further observed that “[w]hen it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.”9

According to the Court:

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.10

The Court also provided a hypothetical:

Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee.11

So under the Court’s hypothetical, any argument that the “real” or “primary” reason for terminating the employment was being a Yankees fan, and that the gender of the employee was merely “incidental” because women who aren’t Yankees fans aren’t fired, and in fact are treated equally as a group to men, is rejected because removing the gender of the Yankees fan from the equation brings about a different result.  Note that under this test, the question is not the general treatment of women, but rather the impact of being a woman on the treatment of the specific employee.  Also, the test does not require a test to determine the dominant reason for the unequal treatment; in the hypothetical, there was no concern over whether being a Yankees fan or a woman was the stronger motivation for the termination. This is in fact a clear standard that is easy to both understand and apply in practice.

The Asylum “One Central Reason” Standard

Let’s turn back to the asylum context.   In 2005, Congress included language in the REAL ID Act requiring a statutorily-protected ground to be “at least one central reason” for the persecution in order to meet the “on account of” requirement.  Did this added language create a different standard for asylum cases than that described in Bostock?

One leading authority points out that an earlier version of the 2005 legislation would have required the protected ground to be “the central motive” behind the persecution.  However, in the final version, “the” was changed to “at least one,” meaning that a protected ground need be only one of multiple causes behind the harm.12

Also, note the replacing of “motive” with “reason.”  The Cambridge English Dictionary defines “reason” as “the cause of an event or situation or something that provides an excuse or explanation,” providing the example: “the reason for the disaster was engine failure, not human error.”  “Reason” would thus seem to cover more territory than “motive,” as an engine has no motive to fail.

The change from “motive” to “reason” lends itself to what scholars of international refugee law have termed the “predicament approach,” in which a causal connection between the persecution and a protected ground satisfies the nexus requirement irregardless of evidence of a specific persecutorial intent.13  The concept is illustrated through the example of a conscientious objector who is imprisoned for evading mandatory military service.  While the conscription law applies equally to all, the real cause may be a protected ground where noncompliance with the law was because of a religious or political belief.14

It is for this reason that one leading scholar viewed the choice of word as an indication “of increased conformity with international standards” in line with the fact that the Refugee Act was enacted to bring U.S. law into conformity with international treaty obligations under the 1967 Protocol.15

The BIA’s Initial Take on “One Central Reason”

The BIA initially interpreted “one central reason” as a reason that is not “incidental, tangential, superficial, or subordinate to another reason for harm.”16   In doing so, the BIA  explicitly rejected the view that “one central reason” must be “dominant.”  As the Board explained, “[t]he problem in classifying one motive as “dominant” or “central” is that it renders all other motives, regardless of their significance to the case, secondary and therefore ultimately irrelevant.”17  (It is worth noting the Board’s use of the word “motive” rather than “reason.”).

However, the Board’s inclusion of the word “subordinate” in its definition was rebuffed by the U.S. Court of Appeals for the Third Circuit, which found it to be the “mirror image of the rejected ‘dominance’ test: the requirement that a protected ground, even if a ‘central’ reason for persecution, not be subordinate to any other reason.”18  In other words, the court found no difference between requiring a reason to be dominant (which the Board correctly found it could not do) and prohibiting a reason from being subordinate (which the Board then did instead).  The Board has since dropped the word “subordinate” when describing the standard.

So in summary, the “at least one central reason” standard allows a cause for persecution to be one of many, and does not require the protected ground to be dominant in comparison with the others.  It only prevents the reason from being incidental, tangential, or superficial.  And again, the word is “reason” and not “motive;” surely, Congress saw a difference between those words or it wouldn’t have changed the latter to the former in the final version.

In its recognition that there may be multiple causes for persecution, in its substitution of “reason” for motive, and in its rejection of a dominance test, the “one central reason” test is indistinguishable from the standard described in Bostock.

Circuit Courts Have Applied the Bostock “But-For” Test in Asylum Cases

The Fourth Circuit has addressed the “one central reason” standard in a number of decisions in which it has consistently applied the “but-for” test.19  In one, a woman from El Salvador sought asylum after members of Mara 18 threatened to kill her for blocking them from recruiting her son.  The BIA upheld the Immigration Judge’s finding of no nexus, on the grounds “that gang recruitment was the central motivation for these threats;” while claiming that “the fact that the person blocking the gang members’ recruitment effort was their membership target’s mother was merely incidental to the recruitment aim.”20

Note the Board’s citing of a completely incorrect standard: “the central motivation,” referencing the wording that Congress rejected in place of the language it ultimately adopted.  As a practical matter, the Board viewed the recruitment aim as ending its nexus inquiry, whereas I would argue that it should have served as the starting point.  Once we know that the gang sought to recruit the son, we gain a perspective that allows us to better understand how the particular social group membership might put the asylum seeker in harm’s way.

Properly applying the “but-for” test described in Bostock to the above fact pattern required removing the family relationship from the equation to see if the threat of harm would remain.  Of course, it would not; it was the specific fact that the asylum-seeker was the intended recruit’s mother that put her between the gang and her son, blocking the recruitment.  And it was because she stood between the gang and her son that the former sought to kill her.  The maternal relationship wasn’t tangential or incidental to the recruitment; it was precisely the reason that the asylum-seeker was an obstacle that needed to be eliminated.

That is why the Fourth Circuit concluded that the family relationship was “at least one central reason” for the threatened harm: because 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.  The court added “The BIA’s conclusion that these threats were directed at her not because she is his mother but because she exercises control over her son’s activities draws a meaningless distinction under these facts.”21

The Eleventh Circuit also applied the traditional “but-for” test in a 2019 decision in which the Board had found no nexus because a cartel  had a financial motive in targeting the Petitioner in order to extort money owed to the cartel by his uncle.22  The Eleventh Circuit found that “it is impossible to disentangle [the Petitioner’s] relationship to his father-in-law from the Gulf Cartel’s pecuniary motives: they are two sides of the same coin.”  The court continued that absent the familial relationship with the uncle, the cartel never would have hunted the Petitioner down or persecuted him.  The court thus rejected the Board’s view that the family relationship was merely incidental; to the court, it was “abundantly clear to us that the family relationship was one central reason, if not the central reason, for the harm visited upon Mr. Perez-Sanchez.”23

The Ninth Circuit has also held the “but-for” cause to be the correct  standard for determining nexus in asylum cases, citing the Black’s Law Dictionary definition of the term as “[t]he cause without which the event could not have occurred.”24

The Description of the Standard By the BIA (and an Acting Attorney General)

The BIA’s application of the “one central reason” standard is best summarized in a recent decision of the Third Circuit: “although the BIA correctly recited the ‘one central reason’ test, it applied something altogether different.”25

In 2011, the BIA recognized the “one central reason” standard as requiring the asylum seeker to “demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.”26  What the BIA described is the traditional “but for” test.  And in 2017, in its decision in Matter of L-E-A-, the Board described  the test as “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.”27

Interestingly, less than a week before the end of the Trump Administration, a  briefly serving Acting Attorney General issued a second decision in Matter of A-B- recognizing that to establish a nexus for asylum purposes, “the protected ground: (1) must be a but-for cause of the wrongdoer’s act; and (2) must play more than a minor role—in other words, it cannot be incidental or tangential to another reason for the act.”28

The Acting Attorney General listed the “but-for” test and the fact that the ground not be incidental or tangential as if they were two separate requirements, even though a ground that serves as a “but-for” cause for persecution cannot be incidental or tangential.  Also curious is the Acting A.G.’s statement that  the ground could not be incidental or tangential to another reason for the act. Was this meant to be a return to  the dominance test that was rejected by the Third Circuit and the BIA?   Or might this have simply been the result of sloppy drafting, in which the Board’s language from Matter of J-B-N- & S-M- was modified by removing the word “subordinate” that the Third Circuit had rejected, while neglecting to also remove the “to any other reason” language that followed?  The question was rendered moot when the decision was vacated in June by Attorney General Garland.29

The Board Has Applied an Incorrect Standard for Nexus

Descriptions aside, as noted by the Third Circuit, the standard actually applied by the BIA has been something entirely different.  In many of the Board’s decisions, asylum has been denied for lack of nexus simply because the adjudicator deemed a non-protected reason to be the persecutor’s primary motive, without regard to the impact of the protected ground on outcome. This approach is not only inconsistent with the test applied in the above-mentioned circuit court cases (and in Bostock), but is inconsistent with the standard described by the Board itself which rejected a test for dominance.

The Second Circuit made this point in 2014, reversing a decision in which the IJ applied a “the central reason” test, as opposed to “at least one central reason.” The court emphasized that this was not harmless error; rather, it “set up an ‘illogical’ rubric for analyzing motivation that presupposed that multiple motives for persecution must be analyzed in competition with one another, rather than in concert.”30  The court further pointed out that this was not an isolated error by the agency, citing three other decisions dating back to 2007 in which the Board had done precisely the same thing.31

And the Fourth Circuit this year identified an oft-repeated error of the Board in determining nexus on account of family “by incorrectly focusing on why the gang targeted Petitioner’s family, rather than on why they targeted Petitioner herself.”32  In another recent decision, the Fourth Circuit stated that “‘once the right question is asked’ — that is, why was Petitioner being targeted — the conclusion is quite clear: ‘whatever [the gang]’s motives for targeting [her] family, [Petitioner herself] was targeted because of [her] membership in that family.'”33

Returning to the Supreme Court’s Yankees fan hypothetical in Bostock, the Board has been doing the equivalent of looking to how women were generally treated as a group (which, in the Court’s hypothetical, was equivalent to men) to conclude that gender was only incidental to being a Yankees fan, rather than deeming gender to be “at least one central reason” for the particular employee being fired due to its impact on outcome, as male Yankees fans were not terminated.  Of course, the Supreme Court in Bostock directly refuted this approach.  Similarly, in the asylum context, as the Fourth Circuit made clear, it doesn’t matter what view (if any) the gang has of the asylum-seeker’s family.  It only matters that the individual asylum seeker was targeted by the gang because of the family membership.  If so, there is a nexus to a protected ground.

In Matter of M-F-O-, the Board specifically referenced its 2017 decision in Matter of L-E-A- (i.e. L-E-A- I”), noting that its nexus analysis in that case “remains good law.”34  Let’s take a closer look at that decision.  We will first see what standard the Board purported to apply to the facts of the case.  Next, we’ll apply the traditional “but-for” test described in Bostock to those facts.  And lastly, we’ll examine the standard actually applied by the Board.

Matter of L-E-A-: The Board’s Statement of the Law

In Matter of L-E-A-, a criminal cartel sought to kidnap the respondent in his native Mexico.  The respondent’s father owned a store from which the cartel wished to sell drugs.  When the father refused the cartel’s request for access, it targeted the respondent as a means of coercing the father.  The Immigration Judge denied asylum, finding that the cartel’s motive was to sell drugs, not to harm members of the respondent’s family.  The Immigration Judge continued that the cartel’s focus was the store, stating that if the store were to be sold, the cartel would then target the new owner.

On appeal the Board recognized in a footnote the Fourth Circuit’s case law on the matter.  Instead of being instructed by it, the Board simply stated that “[w]hile it is not clear how the Fourth Circuit would apply that precedent to the facts here, this case does not arise in the Fourth Circuit.”35  With those words, the Board dismissed the standard traditionally employed in such matters.  And with what did the Board replace it?

The Board started down the same road as both Bostock and the Fourth Circuit.  It said that nexus is not established “if the persecutor would have treated the applicant the same if the protected characteristic did not exist,” a correct description of Bostock’s “but for” test.  In then citing its own prior take on “one central reason,” the Board omitted the word “subordinate,” stating instead that the protected characteristic “cannot be incidental [or] tangential…”  It continued by noting that both direct and circumstantial evidence of motive should be considered, and that sometimes “a more nuanced evaluation” will be warranted.36

The Traditional “But For” Standard Applied to the Facts of L-E-A-

As the Supreme Court stated in Bostock,  “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.”37

The traditional “but for” standard would thus remove the respondent’s familial relationship to his father from the equation.  We know that the cartel’s aim is to compel the respondent’s father into allowing them to sell drugs in his store.  The cartel would have no reason to kidnap the respondent as a means of coercing his father if not for the familial relationship; the leverage over the father derives entirely from his fear for the safety of his child.  The protected characteristic of family is thus not merely incidental or tangential.  It is one central reason for the persecution.

As noted above, under this standard, it doesn’t matter that the goal of selling drugs is the persecutor’s dominant motive; the hierarchy of reasons is irrelevant.  As we have seen, the Board itself conceded this point in Matter of J-B-N- & S-M-.  Nor does it  matter that when the gang isn’t focused on selling drugs in the father’s store, it treats the members of the family the same as everyone else.  Think of Bostock’s Yankees fan example, in which the fact that women as a group are treated equally to men by the employer until their offending Yankees loyalty is discovered, at which point only women who root for the Yankees are fired.  The fact that both the employer’s hatred of the Yankees in the Bostock example and the gang’s desire to sell drugs in the father’s store in L-E-A- are central reasons doesn’t preclude other “but for” causes.

The Board Applied a “The Central Motive” Test in L-E-A-

However, the traditional standard was not what the Board actually applied to the facts of the case. Instead, it first claimed that “nexus would be established based on family membership where a persecutor is seeking to harm the family members because of an animus against the family itself.”38  In that example, the persecution is caused by the hatred of the family itself, without a need for any further reason.  But that is an example of the family membership serving as “the central motive” for the harm.

The Board then went on in L-E-A- to address instances lacking such animus towards the family itself.  But in doing so, the Board never mentioned the “but for” test described above.  Instead, it made general statements from which it is difficult to discern a coherent test.  In finally denying the claim on the ground that the cartel’s motive was financial, the Board continued to apply an incorrect “the central motive” standard.

Importantly, the Board in L-E-A- never undertook the required exercise of removing the protected ground to see if it would cause a different result.  Instead, it concluded that because the motive was financial, the claim failed.  In summary, the Board again recounted one standard, but then applied something entirely different.  What the Board in fact applied was a “the central motive” test, in which the dominance of the financial motive eliminated all other reasons from consideration.

Conclusion

In spite of the clarity of the correct standard, the universality of its application, and the criticism from numerous circuit courts over the years for its failure to apply it correctly, the BIA has made no effort to correct its course in its application of the “on account of” standard.  The Board remains consistent in its citing of something close to the correct standard, but then applying an entirely incorrect test.  Whatever it claims to be doing, the Board’s test is for “the central motive,” in which nexus is denied whenever a dominant purpose may be identified that is not a statutorily protected ground for asylum.  Congress specifically rejected this standard in favor of the more generous “at least one central reason” test.  Furthermore, the “predicament approach” has never been mentioned, much less applied, by the Board, which has continued to focus on the persecutor’s motive as if Congress had not changed that word to “reason.”

There are many within the Department of Justice who must  be aware of this practice.  I would hope that Attorney General Garland, a longtime circuit court judge, is among them.  In light of the BIA’s refusal to self-correct, it is incumbent on the Department to impose a correction from above.  Otherwise, any forthcoming regulations relating to particular social group formulation will fail to have their desired impact on the outcomes of asylum claims.

Copyright Jeffrey S. Chase 2021.  All rights reserved.

Notes:

  1. Thanks to Dr. Alicia Triche for providing invaluable insight that was incorporated into the final version of this article.
  2. 28 I&N Dec. 408 (BIA 2021).
  3. 8 U.S.C. § 1101(a)(42)(A).
  4. My use of the term “Traditional” is based on the Supreme Court’s reference in Bostock cited below to the “traditional” “but-for” test in cases with a “because of” or “on account of” requirement.
  5. 140 S. Ct. 1731 (2020).
  6. Id. at 1739.  Although no further explanation regarding the equivalency of the terms was provided in Bostock, in a prior decision, the Court had stated: “The words ‘because of’ mean ‘by reason of: on account of.’ 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining ‘because of’ to mean ‘By reason of, on account of ‘ (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining ‘because’ to mean ‘by reason; on account’).”  Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).
  7. Id. The Court has applied this same test in other cases, including FBL Fin. Servs., Inc., supra, in which it also referenced the description of the test found in W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it”).
  8. Id.
  9. Id.
  10. Id. at 1741.
  11. Id. at 1742.
  12.  Deborah E. Anker, Law of Asylum in the United States (2021-2022 Ed.) (Thomson Reuters) at 409.
  13. See James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd Ed.) (Cambridge) at 376.
  14. Id. at 276-77.
  15. Anker, supra at 390.
  16. Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 214 (BIA 2007).
  17. Id. at 212, n.6.
  18. Ndayshimiye v. Attorney General of U.S., 557 F.3d 124, 129-30 (3rd Cir., 2009).
  19. See, e.g., Perez Vasquez v. Garland, 4 F.4th 213, 222 (4th Cir. 2021); Portillo Flores v. Garland, 3 F.4th 615, 630-31 (4th Cir. 2021) (en banc); Arita-Deras v. Wilkinson, 990 F.3d 350, 361 (4th Cir. 2021); Hernandez-Cartagena v. Barr, 977 F.3d 316, 322 (4th Cir. 2020);  Zavaleta-Policiano v. Sessions, 873 F.3d 241, 249-50 (4th Cir. 2017); Hernandez-Avalos v. Lynch, 784 F.3d 944 (4th Cir. 2015).
  20. Hernandez-Avalos v. Lynch, supra at 949 (emphasis added).
  21. Id. at 950.
  22. Perez-Sanchez v. U.S. Att’y Gen., 935 F.3d 1148 (11th Cir. 2019).
  23. Id. at 1158-59.
  24. Rodriguez Tornes v. Garland, 993 F.3d 743, 751 (9th Cir. 2021).
  25. Ghanem v. Att’y Gen. of U.S., No. 19-1475 (3rd Cir. Sept. 22, 2021).
  26. Matter of N-M-, 25 I&N Dec. 526, 531 (BIA 2011) (citing  Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009)).
  27. Matter of L-E-A-, 27 I&N Dec. 40, 43-44 (BIA 2017) (“L-E-A- I”).
  28. Matter of A-B-, 28 I&N Dec. 199, 208 (A.G. 2021) (“A-B- II”).
  29. See Matter of A-B-, 28 I&N Dec. 307 (A.G. 2021) (vacating both prior A.G. decisions in Matter of A-B-).
  30. Acharya v. Holder, 761 F.3d 289, 298 (2d Cir. 2014).
  31. The three earlier decisions cited in Acharya in which the BIA had committed the same error in applying a “the central reason” standard  were Castro v. Holder, 597 F.3d 93 (2d Cir. 2010); Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008); and Uwais v. U.S. Att’y Gen., 478 F.3d 513 (2d Cir. 2007).
  32. Perez Vasquez v. Garland, supra at 222.
  33. Hernandez-Cartagena v. Barr, supra at 322 (citing Salgado-Sosa v. Sessions, 882 F.3d 451, 459 (4th Cir. 2018).
  34. Matter of M-F-O-, supra at 412, n.6.
  35. Matter of L-E-A-, supra at 46, n.3.
  36. Id. at 43-44.
  37. Bostock v. Clayton Country, supra at 1739.
  38. Id. at 44.

DECEMBER 21, 2021

Reprinted by permission.

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

I’d describe the BIA’s approach to nexus this way: 

  • Find any possible “non-protected” motivation (no matter how attenuated);
  • Characterize any “protected ground” as “tangential,” “marginal,” or “too attenuated” (even if, as in L-E-A-, it’s the direct or proximate cause of the harm or fear under conventional causation analysis — as Jeffrey points out, in L-E-A– not only was “family relationship” “at least one central reason” driving the gang’s interest, it was the only apparent reason for the gang’s interest in the respondent);
  • Deny asylum;
  • Hope that the refugee doesn’t seek judicial review or draws a circuit panel whose knowledge of asylum and commitment to humanity are as shallow as their own.

Let’s apply “BIA-think” to the infamous Krystal Nacht in Nazi Germany. It was “mere vandalism and crimes against against property,” albeit on a widespread basis. Sure, a few synagogues got burned to the ground. But, that was just an “unfortunate consequence” of their being in neighborhoods that were being randomly vandalized by hooligans.

Moreover, “arson” is a crime, not a “protected ground.” There were laws on the books in Germany punishing vandalism, so no “unwillingness or inability” to protect.

Of course it was hard tracing down the “alleged perps” because of the widespread nature of the crimes. The alleged perps were “non-government actors” not carrying out official policies. And police or other officials involved were merely “rogue officers” acting in violation of German law. Most significantly, the “alleged victims” never filed police reports. So how could the German Government be expected to act? Nothing to see here, really!

Moreover, if we grant one case, all the Jews in Nazi Germany might qualify for asylum. That would “open the floodgates.” Certainly not what Congress intended!

Krystal Nacht
“Widespread vandalism” but no persecution o/a/o any “protected ground” here!
Krystal Nacht
SOURCE: Holocaust Museum

Let’s face it, if the vessel St. Louis arrived at our shores today the Biden Administration wouldn’t even need to shove it back out to sea! They would use Title 42 to send the refugees back to death without any process at all, just as “Gauleiter Miller” told them to do!

The St.Louis
“No room at the inn! Go back and die in place, you ‘illegals.’”
The St Louis (1939)
Faces of the doomed
SOURCE: History.com

Jeffrey hits the nail on the head when he suggests that the BIA’s renewed vigor in “pushing” bogus nexus denials is prompted by the slow erosion of their Sessions/Barr inspired effort to define PSG out of existence as well as the Circuits’ increasingly critical treatment of the BIA’s often-specious adverse credibility findings (frequently improperly substituting their view for the IJ’s when necessary to sustain a DHS appeal) and their highly sanitized, “fantasyland” view of country conditions in the Northern Triangle and other major “refugee sending” countries. The latter probably reflects the many superior, authoritative tools for proving country conditions now available to advocates which highlight the “double speak, dumbing down, and overt polarization” of State Department Country Reports.

Manipulation and encouragement of wrongful nexus denials by IJs might be the “last line of defense” for the BIA against giving many more asylum seekers the protection they need and deserve under a fair and proper interpretation and application of asylum law!

Perhaps, we shouldn’t be surprised by Garland’s disinterest in making the progressive reforms necessary to restore some semblance of justice, order, and intellectual integrity to his disgracefully dysfunctional courts. While the GOP has been fixated on weaponizing Immigration Courts against migrants over the past two decades, Dems have shown little or no interest in fixing these glaring problems.

Poor policies and inattention to progressive judicial appointments @ EOIR during the Obama Administration started the exponential growth in backlog!

Now, in the words of one of my esteemed colleagues: “At this point, it just seems like a giant snowball careening down the mountain.”

Snowball
“Look out below, asylum seekers! Garland’s BIA is aiming for YOU!”
Public Realm

Litigating this mess to a standstill appears to be the only option Garland is leaving for those who believe that equal justice in America is for “all persons!”

🇺🇸Due Process Forever!

PWS

12-21-21

😎WIN ONE, LOSE ONE☹️:  9TH CIR. ANNIHILATES MATTER OF ARMENDAREZ-MENDEZ (SUA SPONTE REOPENING), WHILE 11TH  CIR. WOODENLY ENDORSES 👎🏻 MATTER OF L-E-A- (NEXUS)!☠️⚰️

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-departure-bar-sua-sponte-reopening-balerio-rubalcaba-v-garland#

CA9 on Departure Bar, Sua Sponte Reopening: Balerio Rubalcaba v. Garland

Balerio Rubalcaba v. Garland

“This case presents the question whether the departure bar limits an IJ’s ability to reopen immigration proceedings sua sponte. We have jurisdiction to review questions of law under 8 U.S.C. § 1252(a)(2)(D), and we conclude that the departure bar does not apply in the context of sua sponte reopening. That is, an IJ’s discretion to reopen a case on his or her own motion is not limited by the fact that a noncitizen has previously been removed or has departed from the United States. Therefore, we grant the petition for review.”

[Hats off to Elsa Martinez!]

pastedGraphic.png

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

https://media.ca11.uscourts.gov/opinions/pub/files/201915091.pdf

KELLY SANCHEZ-CASTRO,

versus

U.S. ATTORNEY GENERAL,

                     ________________________

Petition for Review of a Decision of the Board of Immigration Appeals _______________________

(June 1, 2021)

Petitioner,

Respondent.

Before WILLIAM PRYOR, Chief Judge, LUCK and ED CARNES, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

Kelly Sanchez-Castro, a native of El Salvador, petitions for our review after

she unsuccessfully sought relief from removal because a gang targeted her family based on the assumption that her father’s work in the United States made it

USCA11 Case: 19-15091 Date Filed: 06/01/2021 Page: 2 of 15

wealthy. The Board of Immigration Appeals denied her applications for asylum, withholding of removal, and protection under the Convention Against Torture, and substantial evidence supports its decision. Sanchez-Castro is ineligible for asylum and withholding of removal because the gang that targeted her family did so only as a means to the end of obtaining funds, not because of any animus against her family. And she is ineligible for protection under the Convention Against Torture because she has not established that any harm she will suffer if returned to her home country will come with at least the acquiescence of a government official. We deny Sanchez-Castro’s petition for review.

. . . .

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

Woman Tortured
“Tough noogies, Baby! Chief Judge Pryor and his all-male, all White ivory tower panel don’t see any nexus here! So, suffer and die, Baby, suffer and die!” “She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons

To reach its incorrect and life-threatening endorsement of the BIA’s misconstruction of the nexus requirements (throwing out the normal rules of causation to achieve an anti-asylum-seeker result) the 11th Circuit panel eschewed a much better and more intellectually honest approach by the 4th Circuit in Hernandez-Avalos v. Lynch, 784 F.3d 944, 950 (4th Cir. 2015).

Notwithstanding Chief Judge Pryor’s cavalier attitude about sending Ms. Castro-Sanchez back to possible death or dismemberment at the hands of gangs who operate with relative impunity in El Salvador, these are not “academic exercises.” They are serious life or death matters involving bad law produced by a (non) “court” (the BIA) controlled by a law enforcement official (the Attorney General) that is not comprised of judges who are recognized experts in asylum and immigration laws and has over recent history construed the law against immigrants at almost every opportunity! 

These two cases show the difference between this panel of the 9th Circuit that takes judicial review and what’s at stake seriously and the “indifferent to humanity” rubber-stamp approach applied by the 11th Circuit panel. We need better judges, progressives with expertise in due process, human rights, immigration, and racial justice at every level of our Federal Judiciary — from the Immigration Courts to the Supremes! Circuits like the 5th and the 11th with long and disgraceful records of relative indifference to the rights and lives of migrants, mostly those of color, are long, long  overdue for infusion of better qualified progressive “practical scholars” and advocates.

That makes the progressive outrage over Garland’s totally inappropriate “giveaway” of Immigration Judge positions he controls to Barr-selected, non progressive, candidates who applied under a flawed recruitment process designed to discourage diversity and exclude the best qualified expert candidates from the private sector, along with his failure to address skewed anti-asylum-seeker precedents like L-E-A- and A-B– all the more understandable! It also makes changes that will put more expert, progressive, due-process oriented judges who have experience representing individuals in court all the more urgent!

Cases like this wouldn’t get into the “Article III Life or Death Lottery” if Garland had dealt promptly and properly with L-E-A-, A-B-, and other Trump-era, anti-asylum, anti-migrant, anti-due-process, misogynist precedents!

Judge Merrick Garland
Attorney General Merrick B. Garland — His failure to institute long-overdue and obvious progressive due process reforms @ EOIR is costing Kelly Castro-Sanchez and other vulnerable refugee women their lives while enraging their advocates! It’s not an “academic exercise,” as Garland seems to think. There are real life consequences and irreparable harm from his failure to take due process, human rights, and racial justice seriously @ EOIR!
Official White House Photo
Public Realm

🇺🇸⚖️🗽🧑🏽‍⚖️Due Process Forever! Tell the Biden Administration that we need progressives, not more “regressives,” on the Federal Bench, starting with the Immigration Courts! End abusive judging by a non-diverse Federal Judiciary!

PWS

06-04-21

⚒PULVERIZED AGAIN: 4TH CIR. JACKHAMMERS BIA’S LATEST ANTI-ASYLUM, MISOGYNIST 🏴‍☠️ CRUSADE TARGETING REFUGEE WOMEN FROM GUATEMALA — “Excessively narrow view of nexus” — “Record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors!”

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up
Woman Tortured
“She struggled madly in the torturing Ray”
Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports for LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-guatemala-nexus-argueta-diaz-de-gomez-v-wilkinson

CA4 on Guatemala, Nexus: Argueta Diaz de Gomez v. Wilkinson

Argueta Diaz de Gomez v. Wilkinson

“Diaz de Gomez claims that she received repeated death threats from a gang in Guatemala after she and her family witnessed a mass killing by gang members and refused to acquiesce to the gang’s extortion and other demands. … [W]e reject the Board’s “excessively narrow” view of the nexus requirement, and conclude that Diaz de Gomez established that her familial ties were one central reason for her persecution. … We also hold that the record conclusively establishes that the Guatemalan government was unable or unwilling to control Diaz de Gomez’s persecutors. We therefore grant the petition for review and remand for the Board to reconsider Diaz de Gomez’s claims in light of our holdings.”

[Hats off to Pamela P. Keenan!]

pastedGraphic.png

 

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

So, let’s compare the 4th Circuit’s view with the most recent abomination and intentional misconstruction of the “unable or unwilling to control” doctrine by totally unqualified political hack Jeffrey Rosen, then impersonating the “Acting Attorney General” and issuing clearly unconstitutional “precedents” to implement the defeated regime’s racially biased, misogynistic, anti-asylum agenda.

https://immigrationcourtside.com/category/asylum/failure-of-state-protection/

Absurdly, up until the Biden Administration suspended it this week, Guatemala, of all placeswas fraudulently determined by the Trump immigration kakistocracy to be a “safe third country” for asylum seekers. https://www.state.gov/suspending-and-terminating-the-asylum-cooperative-agreements-with-the-governments-el-salvador-guatemala-and-honduras/

Talk about “crimes against humanity!” ☠️🏴‍☠️ Certainly, every current civil servant who supported and advanced this bogus designation should be held accountable.

Kakistocracy Kills: Obviously, with better qualified judges, competent representation, and a fair system operated in accordance with due process and a proper interpretation of asylum laws, many of those now being arbitrarily, capriciously, and unlawfully turned back at our borders would be entitled to our legal protection. This is life or death, not a problem that can “wait till tomorrow” to be addressed! Every day that the patently inadequate “judges” currently on the BIA remain in their positions means more injustice, trauma, and even death for legitimate asylum seekers!

The BIA Clown Show 🤡🦹🏿‍♂️ has got to go!

🇺🇸⚖️🗽Due Process Forever!

PWS

02-10-21

😎👍⚖️🗽👩🏻‍⚖️👨‍⚖️🇺🇸YES! — WOW! IN A HUGE VICTORY FOR DUE PROCESS & FUNDAMENTAL FAIRNESS, PANEL LED BY JUDGE STEPHANIE THACKER WITH 2 TRUMP APPOINTEES UNANIMOUSLY BLOWS AWAY BIA ON NEXUS TO A NUCLEAR FAMILY PSG FROM EL SALVADOR! — Arlington Superstar 🌟 Litigator Aaron Caruso With Big Win For Cause Of Justice! — Hernandez-Cartagena v, Barr! — “Kardashian Rule” & Other BIA/Billy The Bigot Nonsense Smashed!

 

https://www.ca4.uscourts.gov/opinions/191823.P.pdf

HERNANDEZ-CARTAGENA v. BARR, 4th Cir., 10-15-20, published

PANEL: THACKER, RICHARDSON, and QUATTLEBUAM, Circuit Judges

OPINION BY: JUDGE STEPHANIE THACKER

KEY QUOTE:

Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.
11

IV.
For the reasons set forth herein, the petition for review is granted, the decision of
the BIA is reversed, and we remand to the BIA for proceedings consistent with this opinion.

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

Why this is important: It delivers a totally deserved “double whammy” to two of the worst and most biased precedents issued during the Trump White Nationalist “kangaroo court era” at the BIA.

First, in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), (“L-E-A- 1”) the BIA recognized the “nuclear family” as a “particular social group.” Yet, to produce the necessary asylum denial sought by their “Trump handlers” at DOJ, the BIA erroneously found that the threatened harm had no “nexus” to the PSG.

To reach this improper and illogical result, the BIA disingenuously trashed the “normal” rules of causation. Those say that nexus is established if the harm would not have occurred “but for” membership in the protected group. Of course, there could be multiple “but fors” in a particular case, recognizing the “at least one central reason” statutory language for nexus.

That respondent was targeted for harm by gangs because his family owned a drug store that the gangs wanted to access to distribute illegal drugs. Had the respondent not been a member of his particular family, there is no reason to believe he would have have been targeted for any harm, or indeed have been of any interest to the gangs at all.

In other words, “but for” his membership in that particular family PSG, the threats would not have occurred. Essentially, a “no brainer” asylum grant that could have been quickly granted by a competent adjudicator. Any DHS appeal should have been a strong candidate for summary dismissal.

Instead of doing the obvious, the BIA invented new rules of causation. Contrary to the record, they found that family membership was essentially irrelevant to the threatened persecution. No, according to the BIA, the threats against the respondent were motivated solely the gang’s desire to sell illegal drugs through the family store, not a protected ground.

By searching for “any other motivation” and then basically substituting it to the exclusion of the clear family PSG motivation, the BIA bizarrely and erroneously concluded that the PSG was not “one central reason” for the persecution. This allowed the BIA to deny asylum to a respondent who fit squarely within the “refugee” definition.

Although the decision might have been cloaked in garbled legalese and irrational, result-oriented analysis, the overall message to Immigration Judges and BIA Appellate Judges was clear: faced with facts that demanded an asylum grant to a Central American refugee, the adjudicator should manufacture “any reason other than a protected ground” to deny protection. The BIA will have your back.

Let’s play out the BIA’s intentionally perverted analysis on a larger scale. The leaders of the Nazi movement stood to profit mightily from the eradication of the German Jewish community. Stolen artwork, confiscated wealth and property, and even the proceeds of the gold and silver obtained from collecting and melting down the dental fillings of gassed Jews found their way into Nazi bank accounts, many abroad. Thus, the BIA could view the Holocaust not as religious, nationality, or racial persecution, but rather part of an overall criminal scheme to enrich Nazi leaders by stealing from prosperous or vulnerable individuals. No persecution there!

Happily, in Hernandez-Cartagena, Judge Thacker and her colleagues blew through the type of bogus analysis set forth in L-E-A- 1. Although not specifically citing the BIA’s defective precedent, the court applied “normal rules of causation” rather than the BIA’s “any reason to deny” approach.

The petitioner was a “conduit” In the gang’s scheme to extort money from her parents. The court recognized that “it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.”

Good bye and good riddance L-E-A- 1. Hello, rational analysis and well-merited protection, although sadly only within Fourth Circuit, for now.

But, that’s not the end of the tale of woe from America’s most blatantly biased, unprofessional, deadly, and totally unconstitutional “21st Century Star Chambers.” Not satisfied with the BIA’s illegal denial of protection in L-E-A- 1, two years later, Attorney General “Billy the Bigot” Barr “certified” that case to himself. That became Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- 2”).

Star Chamber Justice
“Justice”
Star Chamber
Style

His purpose? To reverse the only correct part of L-E-A- 1: the BIA’s recognition of the “nuclear family” as a “PSG.” As we all know, the nuclear family is one of the oldest, most well-established, well-defined, and universally recognized social units in human history. Not surprisingly, then, it has been recognized as a “PSG” under the Refugee Act of 1980 in numerous judicial and BIA decisions as well as by a myriad of human rights and international law scholars.

Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large
Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

No matter to Billy! In an exercise in disingenuous legal gobbledygook and counter-rationality, he tried to explain why it was wrong to recognize the obvious: that the nuclear family” is a “cognizable PSG” for asylum adjudication purposes.

Instead, Billy substituted what I call the “Kardashian rule.” Only those families who have some sort of widespread recognition in society as a whole should be considered to possess the “social distinction” (the characteristic formerly known as “social visibility”) to qualify as a “cognizable PSG.”

Kardashians
Billy Barr’s Vision Of A “Cognizable Particular
Social Group” By hotrock pictures – Vimeo: Kardashian Kollection at Sears (view archived source), CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=82871460
Creative Commons License

Again, without specifically citing L-E-A- 2, (perhaps the OIL was too embarrassed to argue it) Judge Thacker and her colleagues “blew away” its bigoted and irrational nonsense:

We have repeatedly held “a nuclear family provides a prototypical example of a particular social group” cognizable in our asylum framework. Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020) (internal quotation marks omitted).

Indeed, the Fourth Circuit has been a leader in recognizing the nuclear family as a PSG, going all the way back to a case where they reinstated some of my rulings as an Immigration Judge that had been wrongfully reversed by the BIA: Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). But, hey, who remembers stuff like that from nearly a decade ago where I was once again proved right and the BIA was wrong?

Yeah, I’ll have to admit that after eight years of regularly getting “stuffed” by my BIA colleagues at en banc, there were few things in my professional life more satisfying than having a Court of Appeals “stuff” the BIA on a case where I had dissented as a BIA Judge or been reversed as an Immigration Judge!

So Billy the Bigot’s attempt to impose the absurdist “Kardashian rule” (sorry Kim, Kourtney, and Khloe) in L-E-A- 2 bites the dust, at least in the Fourth Circuit. I hope it will serve as a “blueprint” to eradicate the “twin travesties” of L-E-A- 1 & 2 across the nation!

Exhilarating as this case is, it’s just one step in the right direction. The unconstitutional White Nativist bias and abuse being heaped upon refugees and other migrants by a “Star Chamber” beholden to the likes of “Billy the Bigot” Barr and his predecessor Jeff “Gonzo Apocalypto” Sessions won’t end until EOIR is abolished and replaced with a real court system that complies with 5th Amendment Due Process. If the Article III Courts don’t have the guts to get the job done, then its up to future better Congress to make it happen!

Lots of “gold stars” to hand out here!

Aaron Caruso, Esquire
Aaron Caruso, Esquire
Partner, Abod & Caruso
Wheaton, MD
Photo Source: Abod & Caruso Website

🌟First and foremost, Aaron Caruso, Esquire, of Abod & Caruso, Wheaton, MD. He appeared before me in Arlington. He’s the “total pro,” a “judge’s lawyer:” scholarly, unfailingly courteous, prompt, well-prepared, practical, wrote outstanding “to the issue” briefs that didn’t waste my time, took tough cases, and never gave up on his clients. In a “better world,” he’s definitely someone I could see on the Federal Bench at some level. A member of the NDPA, for sure!

Judge Stephanie D. Thacker
Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

🌟Judge Stephanie Thacker of the Fourth Circuit. I haven’t studied all of her judicial opinions. But, based on this opinion and her outstanding and totally correct dissent in Portillo-Flores v. Barr where she cogently castigated her fellow panel members for “going along to get along” with the BIA’s “at worst nonsensical and cursory at best” asylum denial, she appears one of a painfully small number of Article III Judges who both understand the mockery of justice going on in our Immigration “Courts” and have the guts to take a strong stand against it. https://immigrationcourtside.com/2020/09/04/%E2%80%8D%EF%B8%8F%EF%B8%8F%EF%B8%8Finjustice-watch-4th-cir-judge-stephanie-thacker-cogently-castigates-colleagues-for-misapplying/

Interestingly, this is the same panel as in Portillo-Flores. And, the BIA’s sloppy and incompetent analysis, including ignoring the evidence of record, presents largely the same issues. Only, this time Judge Thacker’s colleagues paid attention to what she was saying!

That says something about both her persuasiveness and her colleagues’ willingness to listen and take a better approach to judicial review. That’s also what’s known in the business as “making progress every day, one case, one life at a time.”

Unfortunately, Trump and the GOP right wing pols have turned Federal judicial selection into a race to control justice until at least 2060. That has forced the Dems to finally wake up and do likewise the next time they get the chance. The upshot: At 55, although still in the “prime years” of her career from a professional standpoint, Judge Thacker has probably “aged out” of the sweepstakes to be the “heart and soul” of the Supremes for the next four decades.

The good news: She should be around to continue saving lives, speaking truth to power, and serving as a great role model for younger, aspiring jurists and public officials of all races and genders for many years to come.

Compare Judge Thacker’s clear, concise, cogent analysis in this case with the wandering legal gobbledygook and pure nonsense put forth by the BIA and Barr in L-E-A- 1 & 2.

🌟Judge Julius N. Richardson and Judge A. Marvin Quattlebaum, Jr., of the Fourth Circuit also deserve stars. I really lambasted these two Trump appointees for their tone-deaf performance in Portillo-Flores. But, here they surprised me by joining fully in Judge Thacker’s analysis. Shows a capacity for teamwork, listening, adjusting views, and taking judicial review seriously, all really good things!

Additionally, it’s really important and significant when Trump appointees “do the right thing” and uphold due process, fundamental fairness, and recognize asylum seekers as “persons” entitled to equal justice under our Constitution. Given the large number of fairly young Trump appointees on the Federal Bench, it’s critical that as many of them as possible join their colleagues in resisting the White Nationalist assault on the rights and human dignity of people of color, particularly migrants and asylum seekers, being orchestrated by Trump, Miller, Barr, Wolf, and the rest of the regime’s gang of bigots.

Don’t know if this will be repeated in the future, but the votes of Judge Richardson and Judge Quattlebaum in this case are an encouraging sign for the American justice system. Will it be a trend or an aberration? Can’t tell, but stay tuned.

🌟Finally, and perhaps most importantly, hats off for Sandra Marleny Hernandez-Cartagena. In the face of a bogus “court” system controlled and operated by White Nationalist racist bigots for the purpose of wiping out asylum laws, demoralizing applicants through dishonest procedures and rules meant to discourage them from seeking protection, and to “send a message” that they aren’t wanted in our country, she persisted for herself, her family, and others similarly situated. Her victory in this case is a victory for American justice and for every one of us who believe in due process, fundamental fairness, and equal justice for all.

Thanks, Sandra, for inspiring us with your courage and unrelenting persistence in the face of evil and institutionalized, illegal, bias!

Due Process Forever!

PWS

10-16-20

EOIR WRONG AGAIN: Split 6th Cir. Says BIA Screwed Up Corroboration, Nexus Requirements In Mexican PSG Withholding Case — GUZMAN-VAZQUEZ v. BARR!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski report from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca6-on-corroboration-social-group-guzman-vazquez-v-barr

CA6 on Corroboration, Social Group: Guzman-Vazquez v. Barr

Guzman-Vazquez v. Barr

“Manuel Guzman, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of his application for withholding of removal. Because the IJ and BIA erred in failing to give Guzman an opportunity to explain why he could not reasonably obtain certain corroborative evidence, because substantial evidence does not support the Immigration Judge (“IJ”) and BIA’s determinations regarding the unavailability of evidence to corroborate Guzman’s claim about abuse by his stepfather, and because the BIA incorrectly required Guzman to demonstrate that his membership in a particular social group was “at least one central reason” for his persecution, we GRANT the petition for review, VACATE the BIA’s order, and REMAND for proceedings consistent with this opinion.”

[Hats off to R. Andrew Free!]

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

PANEL: MERRITT, MOORE, and MURPHY, Circuit Judges.

OPINION: Judge Moore

DISSENT: Judge Murphy

In looking for ways to deny protection, the BIA continues to “blow the basics.” That’s going to continue to happen as long as EOIR is allowed to operate as a branch of DHS Enforcement rather than a fair-minded, impartial court system with true expertise and which grants needed protection in meritorious cases, rather than searching for specious “reasons to deny.”

No wonder the EOIR backlog is mushrooming out of control when those responsible for doing justice waste countless time and resources “manufacturing denials,” rather than just promptly granting relief in many meritorious cases.

PWS

05-18-20

 

 

 

 

 

 

 

 

BLOWING THE BASICS: 4th Cir. Says BIA Got Nexus & Political Opinion Wrong in Guatemalan Asylum Case — Lopez-Ordonez v. Barr — The Facts Were Compelling, But The BIA Worked Hard to Wrongfully Deny Protection!

Dan Kowalski
Dan Kowalski
Online Editor of the LexisNexis Immigration Law Community (ILC)

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-;-nexus-political-opinion-guatemala-lopez-ordonez-v-barr

CA4 on Asylum, Nexus, Political Opinion, Guatemala: Lopez Ordonez v. Barr

Lopez Ordonez v. Barr

“Hector Daniel Lopez Ordonez was conscripted into the Guatemalan military when he was 15 years old. As part of the G-2 intelligence unit, Lopez Ordonez was ordered— and repeatedly refused—to torture and kill people. After a particularly horrific incident in which Lopez Ordonez refused to murder a five-month-old baby and threatened to report the G-2’s abuses to human rights organizations, the G-2 confined him to a hole in the ground for ten months. Upon his release, he fled to the United States. Lopez Ordonez now petitions this Court to review an order from the Board of Immigration Appeals (“BIA”) denying his asylum application and ordering his removal to Guatemala. The BIA determined that Lopez Ordonez did not meet the nexus requirement to establish his eligibility for asylum—that is, he did not show past persecution on account of a statutorily protected ground. The record in this case, however, compels us to conclude that Lopez Ordonez has demonstrated that one central reason for his persecution by the Guatemalan military was his political opinion, a protected ground under the Immigration and Nationality Act (“INA”). Accordingly, we vacate the BIA’s nexus determination and remand for further proceedings.”

[Hats off to Samuel B. Hartzell!]

pastedGraphic.png

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

Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.”

Beneath the smokescreens of the uncontrolled backlog and gross mismanagement at EOIR lies an uglier truth. The BIA is a politically motivated tool of the Trump regime that puts reaching preconceived denials of protection ahead of Due Process and the fair application of asylum law. 

This case should have been an easy grant, probably a precedent. By requiring the DHS, the Asylum Office, and Immigration Judges to follow a properly fair and generous interpretation of asylum law that would achieve its overriding purpose of protection, an intellectually honest BIA with actual legal expertise in applying asylum laws would force an end to the racially-driven intentional perversion of asylum laws and Due Process by the Trump regime. 

More cases granted at a lower level would discourage the largely frivolous attempts to deny asylum engaged in by the DHS here. It would reduce the backlog by returning asylum and other protection grants to the more appropriate 60%+ levels they were at before first the Obama Administration and now the Trump regime twisted the laws and employed various coercive methods to encourage improper denials to “deter” legitimate refugees from Central America and elsewhere from seeking protection. 

With fair access to legal counsel, many more asylum cases could be well-documented and granted either by the USCIS Asylum Office (without going to Immigration Court) or in “short hearings” using party stipulations.  The ability to project with consistency favorable outcomes allows and encourages ICE Assistant Chief Counsel to be more selective in the cases that they choose to fully litigate. That encourages the use of stipulations, pre-trial agreements, and prosecutorial discretion that allows almost all other courts in America, save for Immigration Courts, to control dockets without stomping on individual rights.

It would also force all Administrations to establish robust, realistic refugee programs for screening individuals nearer to the Northern Triangle to obviate the need for the journey to the Southern border. Additionally, compliance with the law would pressure our Government to work with the international community to solve the issues causing the refugee flow at their roots, in the refugee-sending countries, rather than misusing the U.S. legal system and abusing civil detention as “deterrents.”

Due Process Forever! Captive “Courts” Never!

PWS

04-18-20 

11th CIRCUIT JUDGE ADELBERTO JOSE JORDAN “OUTS” THE ATLANTA IMMIGRATION COURT FOR EQUAL PROTECTION CHARADE IN A DISSENTING OPINION! — — “In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. . . . If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.” — Colleagues Tank & Ignore Constitution With Feeble “Head In Sand” Approach

201714847

Diaz-Rivas v. U.S. Att’y Gen., 11th Cir., 04-18-19, unpublished, Jordan, Circuit Judge, concurring and dissenting

Here’s Judge Jordan’s separate concurring and dissenting opinion:

I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
Case: 17-14847 Date Filed: 04/18/2019 Page: 20 of 42
that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
20

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‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22

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even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
23

I concur in the majority’s affirmance of the adverse credibility finding concerning the abuse claim and its conclusion that Ms. Diaz-Rivas was not denied due process. After reviewing the record and the facts surrounding MS-13’s persecution of Ms. Diaz-Rivas and her family, however, I conclude that the BIA erred in ruling that family ties were not at least one of the central reasons for Ms. Diaz-Rivas’ persecution. Further, I disagree with the majority and the BIA concerning the resolution of Ms. Diaz-Rivas’ equal protection claim. I therefore respectfully dissent in part.
I
The majority concludes that family ties were not a central reason why MS-13 persecuted Ms. Diaz-Rivas and her relatives because, it says, MS-13 would have independently persecuted her for reporting her brother-in-law’s disappearance to the authorities. In my view, this construes the “at least one central reason” standard too narrowly—in conflict with our sister circuits—and ignores the realities of a mixed- motive analysis.
A
To interpret the “at least one central reason” standard, I begin with the text of
8 U.S.C. § 1158(b)(1)(B)(i). See Duncan v. Walker, 533 U.S. 167, 172 (2001). The
relevant language states that “the applicant is a refugee” if he or she can “establish 19
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that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” § 1158(b)(1)(B)(i) (emphasis added). The statute does not explicitly define what is or is not a central reason, but the language preceding the term “central” is instructive, and indicates that there can be more than one central reason. See INS v. Phinpathya, 464 U.S. 183, 189 (1984) (“[T]he legislative purpose is expressed by the ordinary meaning of the words used.”). Congress’ use of “one,” and not “the,” illustrates an intent to consider mixed motives, and the introductory phrase “at least” further clarifies that intent. See In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 212–13 (BIA 2007) (noting that an earlier proposed version of the standard read “a central reason,” but that Congress modified it to read “at least one central reason”).
Although we have not had the occasion to interpret this language in a published opinion, several other courts have. For example, the Fourth Circuit has said that, based on the statute’s text, an applicant’s “persecution may be on account of multiple central reasons or intertwined central reasons.” Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015). The Ninth Circuit has said the same thing. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009) (“[P]ersecution may be caused by more than one central reason[.]”). Indeed, other circuits have reversed immigration courts for failing to consider these textual distinctions. See Acharya v. Holder, 761 F.3d 289, 299 (2d Cir. 2014) (concluding that the IJ “recast[ ] his inquiry as one into
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‘the central’ as opposed to ‘at least one central’ reason for persecution”); De Brenner v. Ashcroft, 388 F.3d 629, 637 (8th Cir. 2004) (“[T]he BIA in this instance improperly demanded that persecution occur solely due to a protected basis. There is no such requirement in the statute[.]”).
The history of the standard is also instructive. Prior to Congress passing the REAL ID Act in 2005, an applicant could demonstrate that he or she had been persecuted on account of a protected ground by showing that “the persecution was, at least in part, motivated by a protected ground.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (emphasis added). Under the “at least in part” standard, an applicant could avoid removal by showing that one of the persecutor’s motives was impermissible, even if that motive was not a driving force. See In re J-B-N-, 24 I.&N.Dec.at211,214n.9. SeealsoInReS-P-,21I.&N.Dec.486,496(BIA 1996). A few courts have recognized that the current “at least one central reason” standard “places a more onerous burden on the asylum applicant than the ‘at least in part’ standard . . . previously applied.” Parussimova, 555 F.3d at 740. See also Shaikh v. Holder, 702 F.3d 897, 902 (7th Cir. 2012). However, as the BIA itself recognized, the Act did not “radically alter[ ]” the prior standard. See In re J-B-N-, 24 I. & N. Dec. at 214. Both standards require a mixed motive analysis because “[i]n many cases, of course, persecutors may have more than one motivation.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008).
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B
With the text of the statute and its history in mind, I turn to what a “central” reason looks like. “[One] definition of the word ‘central’ includes ‘[h]aving dominant power, influence, or control.’” In re J-B-N-, 24 I. & N. Dec. at 212 (second alteration in original). Some dictionaries define “central” as being “of primary importance” and note that “essential” and “principal” are synonyms. Parussimova, 555 F.3d at 740. Along with defining what a central reason is, some courts and the BIA have explained what a central reason is not. For example, a protected ground cannot “play a minor role” or be merely “incidental or tangential to the persecutor’s motivation.” In re J-B-N-, 24 I. & N. Dec. at 213 (quotation marks omitted). Stated differently, a central reason is not “minor” and is not “peripheral” or “superficial” to a persecutor’s motivation. See, e.g., Parussimova, 555 F.3d at 740; Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Notably, however, these limitations (essential, principal, not incidental, etc.) only express what it means for a reason to be “central.” The preceding phrase “at least one” still requires a mixed-motive analysis when the facts of the case warrant.
In a mixed-motive case, to show that a protected ground was “at least one central reason,” the applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted. See Marroquin-Ochoma v.
Holder, 574 F.3d 574, 577 (8th Cir. 2009) (“[T]he persecution need not be solely, or 22

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even predominantly, on account of the [protected ground.]”); Ndayshimiye v. Att’y Gen. of U.S., 557 F.3d 124, 129 (3d Cir. 2009) (“[A]n asylum applicant [is not required to] show that a protected ground for persecution was not ‘subordinate’ to any unprotected motivation.”); Parussimova, 555 F.3d at 740 (interpreting the statute’s language to not require that the applicant show the protected ground “account[ed] for 51% of the persecutors’ motivation”). Requiring primacy or dominance would “recast[ ] [the] inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution” and would “vitiate[ ] the possibility of a mixed motive claim.” Acharya, 761 F.3d at 299. Moreover, in practice, it would be nearly impossible for an applicant to show that one reason motivated the persecutor more than another. See Zavaleta-Policiano v. Sessions, 873 F.3d 241, 248 (4th Cir. 2017) (“It is unrealistic to expect that a gang would neatly explain in a note all the legally significant reasons it is targeting someone.”); Parussimova, 555 F.3d at 742 (“[P]ersecutors are hardly ‘likely to submit declarations explaining exactly what motivated them to act,’ and we do not believe the Real ID Act demands such an unequivocal showing.”) (quoting Gafoor v. INS, 231 F.3d 645, 654 (9th Cir. 2000)).
II
In this case, the record illustrates two reasons why MS-13 targeted Ms. Diaz- Rivas and her family. The first, in time, was the family’s failure to pay “rents” to the gang. The second was Ms. Diaz-Rivas reporting her brother-in-law’s
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disappearance to the authorities. These events transpired quickly, as the brother-in- law refused to pay MS-13 sometime in March of 2015, he was “disappeared” around March 16, 2015, and the family reported his disappearance the very next day.
The BIA, in affirming the IJ’s determination that Ms. Diaz-Rivas failed to establish the required nexus between her persecution and family ties, determined that the predominant reason why MS-13 threatened Ms. Diaz-Rivas and her family was because they involved the authorities. But the BIA committed an error of law by failing to conduct a proper mixed-motive analysis. Based on my review of the record, there is no way to accurately determine which reason was more or less MS- 13’s motivation, and the “at least one central reason” standard does not require us— or Ms. Diaz-Rivas—to attempt such a futile endeavor. Again, Ms. Diaz-Rivas did not need to show that her kinship was MS-13’s primary or dominant motivation. See Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41. Because the BIA and IJ misapplied the relevant legal standard, I would reverse and remand for application of the correct standard.
A
Like the IJ and the BIA, the majority concludes that Ms. Diaz-Rivas’ family ties were not “central,” but it articulates a slightly different rationale. The majority rules that “central” means “essential,” and concludes that Ms. Diaz-Rivas’ family
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ties were not essential to her persecution because MS-13 would have persecuted her regardless of her family’s refusal to pay rents due to the fact she reported her brother- in-law’s disappearance to the authorities. See Maj. Op. at 12–13. As I read its opinion, the majority essentially creates a rule that, if an unprotected ground would have been independently sufficient to instigate the applicant’s persecution, then the protected reason claimed by the applicant cannot be “central.” The majority cites no authorities to support such a rule, and the case it does rely on does not even interpret the “at least one central reason” standard. See Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821 (11th Cir. 2007).
On its face, the majority’s rule replaces the phrase “at least one central” in the statute with the word “essential.” See Maj. Op. 11. In doing so, the majority relies on the fact that Ms. Diaz-Rivas used the word “essential” in her reply brief. Id. But we are not bound by a party’s concession in our interpretation of a statute. See Massachusetts v. United States, 333 U.S. 611, 624–25 & n.23 (1948). That is because “[w]e do not cede our authority to interpret statutes to the parties or their attorneys.” See Dana’s R.R. Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1255 (11th Cir. 2015) (Ed Carnes, C.J., dissenting). For example, the majority’s interpretation of the “at least one central reason” may not apply to a future litigant who clearly articulates that “essential” is merely a synonym for “central” and not a wholesale replacement for the standard. I agree that synonyms can be helpful in understanding
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the terms in a statute, but if Congress intended for us to consider whether an unprotected reason would have independently caused the applicant’s persecution, it could have (and, I submit, would have) used the term “essential.” It did not. Just as we do not “soften the import of Congress’ chosen words even if we believe the words lead to a harsh outcome,” we should not exchange Congress’ chosen words when the text is actually beneficial to the litigant. See Lamie v. U.S. Tr., 540 U.S. 526, 538 (2004).
Barring an applicant from protection based on the existence of an unprotected ground takes the statute’s “at least one central reason” standard and recasts it into a “the central reason” standard. See Acharya, 761 F.3d at 299. In practice, the majority’s proposal requires the applicant to show that the protected reason is the persecutor’s “primary” or “dominant” reason. Both of these are improper. See id.; Marroquin-Ochoma, 574 F.3d at 577; Ndayshimiye, 557 F.3d at 129; Parussimova, 555 F.3d at 740–41.
B
The Fourth Circuit, in multiple cases, has considered whether family ties were “at least one central reason” for MS-13’s decision to persecute an applicant. These cases include Salgado-Sosa v. Sessions, 882 F.3d 451, 457–59 (4th Cir. 2018); Zavaleta-Policiano, 873 F.3d at 247–49; Cordova v. Holder, 759 F.3d 332, 339–40
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(4th Cir. 2014); and Crespin-Valladares v. Holder, 632 F.3d 117, 127–28 (4th Cir. 2011). See also Hernandez-Avalos, 784 F.3d at 949 (concerning the “Mara 18” gang). These decisions run contrary to the majority’s analysis here.
For example, in Salgado-Sosa, 882 F.3d at 457–59, the Fourth Circuit reviewed the BIA’s determination that the applicant’s family ties were not a central reason for his persecution. There, the applicant and his family refused to pay MS- 13’s “war tax,” causing the gang to attack the family. See id. at 454. The applicant and his stepfather reported one attack to the police and later testified against the gang. See id. In retaliation, the gang attacked the applicant’s family home and the family fought back, injuring at least one of the gang members. See id. The IJ concluded, and the BIA affirmed, that the gang was motivated by the applicant refusing to pay the tax and taking action against the gang, as opposed to his family ties. See id. at 455–456. The Fourth Circuit reversed. Although informing the police, testifying, and fighting back against MS-13 were among the motives to persecute the applicant, the Fourth Circuit concluded that “[t]he record compels the conclusion that at least one central reason for [the applicant’s] persecution is membership in his family[.]” Id. at 453, 457–58. In my mind, Salgado-Sosa is virtually indistinguishable from the facts here, and I would follow it. See also Crespin-Valladares, 632 F.3d at 127 (holding that the BIA erred by concluding that
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the applicant’s relation to a witness who testified against MS-13 was not a central reason because the gang was also motivated by the applicant’s own testimony).
In Hernandez-Avalos, 784 F.3d at 947, the applicant applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. The BIA found that her relationship with her son was not a central reason the gang persecuted her, and that she was threatened “because she would not consent to her son engaging in a criminal activity.” Id. at 949. The Fourth Circuit rejected the BIA’s “excessively narrow reading” of the standard and said that it relied on “a meaningless distinction under the facts.” Id. at 949, 950. It then concluded that the applicant satisfied the nexus requirement because her relation to her son was at least one of “multiple central reasons for the threats [she] received.” Id. at 950 (emphasis added). See also Cordova, 759 F.3d at 339–40.
Cases applying the “at least one central reason” standard to other protected grounds similarly contradict the majority’s interpretation. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) (en banc) (sexual orientation); Oliva, 807 F.3d at 58, 60–61 (moral and religious beliefs); Castro v. Holder, 597 F.3d 93, 100–01 (2d Cir. 2010) (political opinion); De Brenner, 388 F.3d at 635–37 (political opinion). In these cases, our sister circuits ruled that the existence of an unprotected ground “would not be conclusive[.]” Castro, 597 F.3d at 103. That is because an
applicant “need only demonstrate that [her protected reason] was ‘at least one central 28

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reason’ for the abuse; [s]he need not show it was the only reason.” Bringas- Rodriguez, 850 F.3d at 1073.
In all of these cases, the IJ and/or BIA pointed to one or more unprotected reasons why the applicant was persecuted, and in all of these cases, our sister circuits concluded that the IJ and/or BIA interpreted the “at least one central reason” standard too narrowly. The same result, I believe, is warranted here. The majority’s view is irreconcilable with the principles that a protected reason can be one of multiple central reasons and that the existence of an unprotected motive does not preclude the applicant from showing that the protected ground was also central. See, e.g., Hernandez-Avalos, 784 F.3d at 950 (citing Cordova, 759 F.3d at 339).
C
The majority, like the IJ and the BIA, goes to great lengths to assert that Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance was the central reason she was persecuted. See Maj. Op. at 12–14. This misses the point. The text of § 1158(b)(1)(B)(i) compels us to recognize that the existence of an unprotected central reason does not defeat her claim because a second central reason may justify asylum. “When an asylum-seeker claims that a persecutor had multiple motivations, only some of which are based on protected grounds, the immigration judge cannot merely attribute the persecution to a non-protected ground.” Gomez-Rivera v.
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Sessions, 897 F.3d 995, 1000 (8th Cir. 2018) (Kelly, J., dissenting) (citing Marroquin-Ochoma, 574 F.3d at 577). “Rather, it remains necessary to carefully examine the record to determine whether the evidence shows that the persecution also occurred on account of a protected ground.” De Brenner, 388 F.3d at 636.
There is some support for considering whether a particular motive was an independently sufficient reason, but only as applied to the protected reason claimed by the applicant—not to the unprotected one. In Parussimova, 555 F.3d at 741, the Ninth Circuit ruled that a reason is central if (a) “the persecutor would not have harmed the applicant if such motive did not exist,” or (b) “that motive, standing alone, would have led the persecutor to harm the applicant.” The majority cites only the initial portion of the Ninth Circuit’s disjunctive standard, reasoning that MS-13 would have still retaliated against Ms. Diaz-Rivas for her reporting her brother-in- law’s disappearance absent her family ties, but it ignores the second. See Maj. Op. at 11. In addition to not being faithful to what Parussimova held, the majority’s approach fails both in practice and in theory.
First, MS-13 would not have targeted Ms. Diaz-Rivas, for either reason, absent her family ties because she would not have reported her brother-in-law missing absent those family ties. Take Temu v. Holder, 740 F.3d 887, 891–92 (4th Cir. 2014), where the BIA had concluded that the applicant was beaten not due to
his mental illness, but as a result of erratic behavior caused by his mental illness. 30

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The Fourth Circuit reversed, saying that it “struggle[d] to see how a rational factfinder” could reach that conclusion, and that the BIA’s reasoning “demand[ed] logical acrobatics.” Id. at 892. Citing Ms. Diaz-Rivas’ decision to report her brother-in-law’s disappearance, while discounting the causal relationship between her kinship and that decision, takes an “overly restrictive view of [Ms. Diaz-Rivas’] case.” Oliva, 807 F.3d at 59 (“A close examination of the record illuminates the inextricable relationship between Oliva’s membership in his proposed social groups and his refusal to pay rent.”). See also De Brenner, 388 F.3d at 637 (highlighting the BIA’s failure to acknowledge the causal relationship between the protected ground and the unprotected ground); Hernandez-Avalos, 784 F.3d at 950 (same).
Second, the majority fails to consider evidence in the record when it suggests that Ms. Diaz-Rivas never “stat[ed] that her familial connection also mattered to the gang.” See Maj. Op. at 14. During her credible fear interview, Ms. Diaz-Rivas stated that she was being persecuted by MS-13 based on her family ties before she went to the authorities. Specifically, the interviewer asked Ms. Diaz-Rivas whether MS-13 “became upset with your family after you asked for protection from the military.” Ms. Diaz-Rivas responded: “Yes.” The interviewer then clarified by asking: “Was [MS-13] upset with your family once they found out that you had contacted the family [sic] or were they unhappy with you even before that?” Ms. Diaz-Rivas responded: “No, they already were [mad] because they wanted more and
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more rent.” This testimony is supported by the undisputed fact that MS-13 “disappeared” Ms. Diaz-Rivas’ brother-in-law for refusing to pay rents before there was any motive to retaliate against the family for involving the authorities. I note that Ms. Diaz-Rivas also called an expert witness to testify that her family’s refusal to pay rents, apart from going to the authorities, put her at risk of persecution. See W.G.A. v. Sessions, 900 F.3d 957, 966 (7th Cir. 2018) (citing the “timing of the persecution” and expert reports to conclude that the applicant met the nexus requirement). This evidence strongly suggests that “[Ms. Diaz-Rivas’ family ties], standing alone, would have led [MS-13] to harm [her].” Parussimova, 555 F.3d at 741.
Ms. Diaz-Rivas’ statements and expert testimony, to my knowledge, are the only evidence in the record as to whether Ms. Diaz-Rivas would have been persecuted by MS-13 based only on her family ties. But that evidence is not mentioned or discussed, in that context, by the IJ or the BIA. Compare Zavaleta- Policiano, 873 F.3d at 248–49 (concluding that the BIA failed to address the applicant’s statement that MS–13 started threatening her immediately after her father fled to Mexico), with Gomez-Garcia v. Sessions, 861 F.3d 730, 734 (8th Cir. 2017) (affirming the BIA’s conclusion that the applicant’s political affiliation was not central because “[t]here [was] no evidence in the record that MS-13 threatened [the applicants] before they reported [the gang’s] burglary”).
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As the majority points out, we defer to the BIA’s interpretation of the facts, even if our own interpretation would support a different conclusion. We do not, however, defer to the agency’s determination that certain testimony did not warrant consideration. This is especially true if that testimony is the evidence in the record that the applicant’s alleged reason was central to her persecution. See W.G.A., 900 F.3d at 967; Zavaleta-Policiano, 873 F.3d at 248–49. It is our responsibility to “ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder.” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009).
I also disagree with the majority’s repeated claim that, because MS-13 threatened Ms. Diaz-Rivas after she reported the disappearance, we can necessarily infer that that is the reason that MS-13 persecuted her. See Maj. Op. at 12–13. With our standard of review in mind, the IJ and the BIA did not cite the fact that MS-13 only threatened Ms. Diaz-Rivas after she reported her brother-in-law missing to conclude she did not meet the nexus requirement. Although the IJ and BIA noted the sequence of events leading to Ms. Diaz-Rivas’ claims, the majority now seizes on this undisputed chronological fact to support its new conclusion that Ms. Diaz- Rivas going to the authorities was the only central reason she was persecuted.
Moreover, the short timing between these events makes it impossible to conclude that MS-13 was not also motivated by her family’s refusal to pay rents. In early March of 2015, Ms. Diaz-Rivas’ brother-in-law refused to pay rents, causing
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the gang to quickly threaten and disappear him, and Ms. Diaz-Rivas reported his disappearance the very next day. By comparison, the majority cites Rivera, 487 F.3d at 823, for its timing argument, but in that case the persecution occurred “several years . . . after [the persecutor] would have imputed [the applicant’s] political opinion.” And to the extent that the majority points to Ms. Diaz-Rivas’ “own failure to pay ‘rent’” as another reason why she was persecuted, that argument contradicts the record. See Maj. Op. at 13. The IJ’s order and Ms. Diaz-Rivas’ testimony make clear that Ms. Diaz-Rivas’ brother-in-law, the patriarch of the family, refused to pay rents to MS-13, and Ms. Diaz-Rivas alleges that she was persecuted because of her family’s refusal to pay rents. See A000387, A000391 (“In this case, the respondent was never asked to pay any extortion. The demand was made to Felix, who is respondent’s brother-in-law.”). See also A000089, A000434.
For these reasons, I would hold that the BIA’s determination—that “[t]here is no indication [that MS–13] had an animus against [Ms. Diaz-Rivas] and her family members based on their biological ties, historical status, or other features unique to the family unit”—misapplies the “at least one central reason” standard and is not based on substantial evidence. I would therefore reverse the BIA’s determination that Ms. Diaz-Rivas’ family ties were not at least one central reason for her
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persecution and remand the case for the BIA to determine whether her family unit is a “particular social group” under the statute.1
III
Ms. Diaz-Rivas also contends that the Atlanta immigration court treats asylum claims dissimilarly compared to immigration courts around the country, in violation of her equal protection rights under the Fifth Amendment. Ms. Diaz-Rivas raised the same equal protection claim before the BIA, but the BIA dismissed it, stating that it “lack[ed] the authority to consider [it].” The BIA cited Matter of C-, 20 I. & N. Dec. 529, 532 (1992), where it ruled that an IJ and the BIA “lack jurisdiction to rule upon the constitutionality of the [Immigration and Nationality] Act and the regulations.” See also Johnson v. Robinson, 415 U.S. 361, 368 (1974) (noting “the principle that adjudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies”) (alteration omitted).
1 The majority notes that I do not resolve whether Ms. Diaz-Rivas’ family constitutes a “particular social group.” See Maj. Op. at 10 n.3. It seems to me that this is the correct approach. Like other circuits that have faced this issue, I would remand it to the BIA. See Oliva, 807 F.3d at 62; Flores- Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015); Vumi v. Gonzales, 502 F.3d 150, 155 (2d Cir. 2007) (collecting cases where the BIA addressed whether family was a particular social group). In any event, “every circuit to have considered the question has held that family ties can provide a basis for asylum.” Crespin–Valladares, 632 F.3d at 125. See also Matter of L-E-A-, 27 I. & N. Dec. 40, 43 (BIA 2017) (citing cases from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits). So, if the majority is looking for legal guidance on this issue, there is plenty of it.
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The prohibition on Article I tribunals adjudicating the constitutionality of a congressional enactment does not bar consideration of Ms. Diaz-Rivas’ equal protection claim. Ms. Diaz-Rivas does not argue that a federal law is unconstitutional, but rather that a particular immigration court is unconstitutionally discriminating against asylum applicants in the way that it applies a federal law. See McGrath v. Weinberger, 541 F.2d 249, 251 (10th Cir. 1976) (“A fundamental distinction must be recognized between constitutional applicability of legislation to particular facts and constitutionality of the legislation . . . . We commit to administrative agencies the power to determine constitutional applicability, but we do not commit to administrative agencies the power to determine constitutionality of legislation.”) (quoting 3 K. Davis, Administrative Law Treatise § 20.04, at 74 (1958)). See also Babcock & Wilcox Co. v. Marshall, 610 F.2d 1128, 1136, 1139 (3d Cir. 1979) (concluding that an Article I review commission had jurisdiction to consider a motion to suppress under the Fourth Amendment “not by reviewing the constitutionality of its statute but by interpreting the statute and by applying constitutional principles to specific facts”).
Based on my understanding of the relevant law, there is no general prohibition on the BIA considering constitutional issues, apart from constitutional challenges to particular statutes which would raise separation of powers concerns. In fact, the BIA has ruled on similar constitutional challenges in the past. See Matter of Awadh, 15
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I. & N. Dec. 775, 777 (BIA 1976) (ruling on the respondent’s claim that an IJ enforced a statute discriminatorily, but stating that it lacked jurisdiction to consider the constitutionality of the same statute). And other BIA opinions suggest that it has jurisdiction to consider some equal protection claims. See In Re Salazar-Regino, 23 I. & N. Dec. 223, 231–32 (BIA 2002); In Re Delia Lazarte-Valverd, 21 I. & N. Dec. 214, 219–21 (BIA 1996) (Schmidt, Chairman, concurring); Matter of Moreira, 17 I. & N. Dec. 370, 373 (BIA 1980); Matter of Silva, 16 I. & N. Dec. 26, 30 (BIA 1976). See also Matter of Gutierrez, 16 I. & N. Dec. 226, 227 (BIA 1977) (considering a Sixth Amendment claim).
In any event, we have jurisdiction to review constitutional claims raised during immigration proceedings. See 8 U.S.C. § 1252(a)(2)(D) (allowing the appropriate court of appeals to “review [ ] constitutional claims or questions of law raised upon a petition for review”); Moore v. Ashcroft, 251 F.3d 919, 923–24 (11th Cir. 2001) (considering an equal protection claim on appeal from the BIA). On appeal, Ms. Diaz-Rivas requests that we remand her asylum claims to the immigration court in San Francisco, California, where her attorneys are located. Although I do not believe we have ordered or encouraged the BIA to remand a case to another immigration court, at least one court has afforded similar relief. See Floroiu v. Gonzalez, 481 F.3d 970, 976 (7th Cir. 2007) (per curiam) (“strongly encourag[ing] the BIA to assign the [applicants’] case to a different judge on
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remand”); 28 U.S.C. § 2106 (granting appellate courts the power to “require such further proceedings to be had as may be just under the circumstances”).2
The due-process clause of the Fifth Amendment contains an implied equal protection component that prevents federal government officials from acting with discriminatory animus. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954). “The constitutional guarantee of equal protection under the law has been held applicable to aliens as well as citizens for over a century.” Yeung v. I.N.S., 76 F.3d 337, 339 (11th Cir. 1995), as modified on reh’g (11th Cir. 1996) (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886)). See also Plyler v. Doe, 457 U.S. 202, 210 (1982)
2 Another avenue for relief may be for Ms. Diaz-Rivas to file an action in an appropriate federal district court. For example, 5 U.S.C. § 702—a provision of the Administrative Procedure Act— provides that “[a] person suffering legal wrong because of agency action . . . is entitled to judicial review thereof, and [a]n action in a court of the United States seeking relief other than money damages and stating a claim” is not barred by sovereign immunity. A separate provision of the APA provides that “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity[.]” § 706(2)(B). District courts have considered similar constitutional claims as violations of these provisions. See Stevens v. Holder, 950 F. Supp. 2d 1282, 1290–91 (N.D. Ga. 2013) (concluding that the plaintiff stated an equal protection claim based on an immigration judge excluding the plaintiff from certain hearings). See also CASA de Md., Inc. v. Trump, — F. Supp. 3d —, 2018 WL 6192367, at *1 (D. Md. Nov. 28, 2018) (claim that the government discriminatorily altered Temporary Protected Status designations, in violation of equal protection and the APA); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1092 (N.D. Cal. 2018) (same); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393, 414 (D. Mass. 2018) (same). The possible existence of another avenue for relief, however, does not foreclose Ms. Diaz-Rivas’ current equal protection claim. In Babcock & Wilcox Co., 610 F.2d at 1136, for example, a party argued that an Article III court, as opposed to an Article I review commission, could better develop the factual record for a Fourth Amendment challenge to a search warrant. The Third Circuit disagreed, stating that the Article I commission could “consider motions to suppress evidence without acting beyond its jurisdiction.” Id. at 1139.
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(“[W]e have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government.”). In this context, the Fifth Amendment protects an asylum applicant from “be[ing] intentionally treated differently from others similarly situated [when] there is no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam).
The majority concludes that Ms. Diaz-Rivas’ equal protection claim is foreclosed by binding precedent and that she failed to present evidence of discriminatory intent. I strongly disagree on both grounds: the precedent does not govern, and the evidence is more than sufficient.
First, the majority mistakenly relies on two published cases in which we have denied equal protection claims alleging that the Atlanta immigration court treated asylum applicants dissimilarly compared to other immigration courts. See Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1218–19 (11th Cir. 2006); Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006). Those cases do not control. In Zafar, 461 F.3d at 1367, we affirmed the dismissal of the petitioner’s claim that the Atlanta immigration court failed to administratively close certain immigration proceedings, when other immigration courts routinely did. We reasoned that the petitioner cited no authority to establish an equal protection violation and that there
was “no support in the record” for his argument. Id. A year later, in Haswannee, 39

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471 F.3d at 1218–19, we rejected an almost identical claim for the same reasons, citing our holding in Zafar.
Unlike the petitioners in Haswanee and Zafar, Ms. Diaz-Rivas has cited authority, outlined the relevant legal framework, and presented evidence to establish her equal protection claim. She alleged that (a) asylum applicants are treated differently at the Atlanta immigration court compared to immigration courts in other cities, and (b) the difference in treatment is for the purpose of discrimination. Ms. Diaz-Rivas then presented statistics showing that, from 2014 through 2016, the Atlanta immigration court only granted 2% of asylum claims while, over the same three-year period, immigration courts around the U.S. collectively granted 46% of asylum claims. These statistics did not exist when we rejected different (and conclusory) claims in Haswannee, 471 F.3d at 1218–19, and Zafar, 461 F.3d at 1367. That, by itself, makes Haswanee and Zafar distinguishable.
Second, Ms. Diaz-Rivas’ statistics constitute probative evidence of disparate treatment and discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 297–98 (1987); Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977). “Of course, statistics do not tell the whole story.” United States v. City of Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980). “Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers [may]
afford at best an incomplete picture.” Harris v. Alabama, 513 U.S. 504, 513 (1995). 40

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But “while statistics alone usually cannot establish intentional discrimination, under certain limited circumstances they might.” Spencer v. Zant, 715 F.2d 1562, 1581 (11th Cir. 1983). See also Smith v. Balkcom, 671 F.2d 858, 859 (5th Cir. 1982). “Sometimes a clear pattern, unexplainable on grounds other than [discrimination], emerges from the effect of the [government] action even when the governing legislation appears neutral on its face.” Arlington Heights, 429 U.S. at 266. In those cases, statistics showing discriminatory treatment can be “a telltale sign of purposeful discrimination.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977).
In my view, Ms. Diaz-Rivas’ statistics—showing that from 2014 through 2016 asylum applicants outside of Atlanta’s immigration court were approximately 23 times more likely to succeed than asylum applicants in Atlanta—are disquieting and merit further inquiry by the BIA. See City of Miami, 614 F.2d at 1339. If these statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.
The government may well be able to explain why asylum applicants so rarely succeed in Atlanta, and, because undocumented immigrants are not a suspect class, any disparate treatment “[is] subject to minimal scrutiny under the rational basis standard of review.” Yeung, 76 F.3d at 339. At this stage, however, I am not aware
of a convincing basis to explain the disparity that Ms. Diaz-Rivas presents, and the 41

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government has not offered one. At the very least, these troubling statistics “indicate plainly enough that this Court should not accept,” United States v. Bethlehem Steel Corp., 315 U.S. 289, 333 (1942) (Frankfurter, J., dissenting), the government’s conclusory argument that this disparity merely results from “the inherent human biases of all judges.” Appellee’s Br. at 36. I add that, even if the government’s unsupported suggestion has a hint of truth, the situation remains deeply troubling, as it would appear that the immigration judges in Atlanta are inherently biased (the government’s phrasing) against asylum applicants in the same way.
On remand, I would order the BIA to consider the merits of Ms. Diaz-Rivas’ equal protection claim or further justify its conclusion that it lacks the jurisdiction to do so. To do otherwise is to ignore the very real possibility that “[a]ll is not well” in the Atlanta immigration court. William Shakespeare, Hamlet, Act I, Scene 2, Line 254 (1601).
IV
With respect, I dissent from the majority’s interpretation of the “at least one central reason” standard and its resolution of Ms. Diaz-Rivas’ equal protection claim.

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In truth, this well-documented family-based persecution case should have been granted and probably would have been granted in many Immigration Courts. But, instead of being granted the protection she deserved, this respondent was subjected to the notorious “asylum free zone” created by the judges of the Atlanta Immigration Court, enabled by the BIA, promoted by the DOJ, and encouraged and empowered by some Article III Circuit Judges.

As cogently pointed out by Judge Jordan, his colleagues 1) grossly misconstrued and rewrote the “one central reason” provision of the asylum statute against the respondent, and 2) swept under the carpet the glaring evidence of constitutional violations of equal protection by EOIR, the Atlanta Immigration Court, the BIA, and the DOJ. To make matters worse, instead of taking the bold public action necessary to stop these outrageous legal and constitutional abuses, the majority made this an “unpublished” decision to obscure the unseemly evidence of what they were doing.

Significantly, in his footnote 2, Judge Jordan points out that there could be other means of challenging the Atlanta Immigration Court’s unconstitutional actions: through an APA action in U.S. District Court. Advocates should vigorously pursue all possible avenues to bring an end to this well-documented abuse of authority in Atlanta (and some other Immigration Courts with asylum grant rates so unrealistically low as to show a pattern of anti-asylum bias.)

And what is the purpose of the BIA if it fails to address chronic “refugee roulette” and unconstitutional behavior by Immigration Judges? Not much that I can see!

Might as well save time and money and just send all appeals from Immigration Judges to the U.S. Circuit Courts of Appeal. End the charade that the BIA is some sort of “expert tribunal” whose decisions are entitled to “deference.” Obviously, Judge Jordan understands immigration and constitutional law much better than the BIA (and his colleagues in the majority) and has the courage to speak out against glaring judicial abuses and lack of professionalism among some Immigration Judges that the BIA tolerates and the DOJ actively encourages.

The majority’s clearly flawed decision could be a “death warrant” for an innocent woman entitled to our protection. Worse yet, miscarriages of justice such as this directed against vulnerable asylum seekers go on every day at every level of our justice system. They advance the Administration’s “Big Lie”– that most asylum seekers from the Northern Triangle do not have valid claims for asylum. To the contrary, many of the claims are valid — but, the judicial system for adjudicating them is not valid — it isn’t fair, and it isn’t impartial as this case well illustrates.

Under a fair, impartial, and objective judicial system, many more claims like this from the Northern Triangle  would be granted — perhaps a majority. But we can’t tell because the current system is so unfairly biased against asylum seekers. There is no doubt that there would be more grants than are happening today.

Indeed, many observers are failing to ask the real questionswith conditions for refugees worsening throughout the world, why are U.S. asylum grant rates inexplicably falling?  Why are such a low percentage of individuals determined to have “credible fear” of persecution eventually granted asylum by Immigration Judges?

Rather than the bogus narratives being presented by the Administration and repeated by folks like Senator Ron Johnson (R-WI) that the system is being “gamed” by asylum seekers, there appears to be a much more reasonable explanation — that the EOIR system has been “gamed” by anti-asylum politicos in this and previous Administrations to artificially and illegally suppress asylum grant rates by Immigration Judges particularly for women, children, and other vulnerable individuals from the Northern Triangle.

Cases like Ms. Diaz-Rivas’s are actually fairly common. Granting them in accordance with law would send the proper signals and would actually lead to a fairer and more efficient system where asylum law would be correctly applied and many more cases could be granted by Asylum Officers without ever reaching Immigration Court or granted in short hearings before Immigration Judges actually committed to giving asylum seekers a fair shake.

Beneath all of the intentionally cruel and unnecessary detention, coercion, deprivation of counsel, hate narratives, and failures of due process and professionalism in our treatment of asylum seekers lies an even uglier truth: judges at all levels of our system, often at the urging of political officials, are encouraged and enabled to skew, misinterpret, and misapply the law and often distort facts to deny protection that should be granted in a fair and impartial system. 

It’s important that cases like this one be “brought into the light” and that judicial abdications of duty be documented. The New Due Process Army is making the historical record of how asylum seekers are being mistreated and will keep confronting judges and legislators with the facts, evidence, and the law until the system finally delivers on its unfulfilled promise “of guaranteeing fairness and Due Process for all” — and that means granting legal protection to even the most vulnerable and endangered among us! The only question is how many innocents will die, be raped, beaten, tortured, extorted, exploited, imprisoned, forced to live underground, or otherwise persecuted and abused before our system finally gets it right?

PWS

04-20-19