🏴‍☠️ AMERICAN OUTLAWS: THE CONTINUING SAGA OF EOIR’S FLAWED DECADE-LONG QUEST TO DENY PROTECTION TO HONDURAN WOMAN — LATEST CHAPTER: BIA Rebuked By 1st Cir. For Not Complying With Court Order!

Dan Kowalski reports from LexisNexis Immigration Community:

CA1 on Evidence…Round 2! – Aguilar-Escoto II

Aguilar-Escoto II

“For the second time, petitioner Irma Aguilar-Escoto, a native and citizen of Honduras, asks us to vacate the Board of Immigration Appeals’ (“BIA” or the “Board”) rejection of her claim for withholding of removal. When this case was last before us, we vacated the BIA’s prior order and instructed the Board to consider the potentially significant documentary evidence submitted in support of Aguilar’s claim. See Aguilar-Escoto v. Sessions, 874 F.3d 334, 335 (1st Cir. 2017). Today, we conclude that the BIA again failed to properly consider significant documentary evidence. Consequently, we vacate the Board’s removal order and remand for further proceedings.”

[Hats off to Kenyon C. Hall, with whom Jack W. Pirozzolo, Sidley Austin, LLP, Charles G. Roth, National Immigrant Justice Center, and Carlos E. Estrada were on brief, for petitioner!]

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This case is a microcosm of everything that’s wrong about EOIR, a “captive,” denial-biased “court” system operating within the DOJ, an enforcement agency within the Executive Branch, over three different Administrations — two Dem and one GOP! But, there is more to this story!

THE REST OF THE STORY:

In 2013, this respondent appeared before an IJ and presented a well-documented claim for withholding of removal to Honduras based on domestic violence. Among the respondent’s documentation were a psychological report, three police reports, a medical report from Honduras, a protection order from a Honduran court, the respondent’s declaration, and affidavits from family members. In the first flawed decision, in 2014, the IJ denied the claim.

The respondent appealed to the BIA. In another flawed decision, entered in 2016, the BIA denied the appeal. In doing so, the BIA denied an asylum claim that the respondent did not make and ignored key documentary evidence that went to the heart of the respondent’s claim. This suggests that the BIA merely slapped a “form denial” on the case which reflected neither the nature of the case below nor the actual record before them. Immigration practitioners say this type of performance is all too common in the dystopian world of EOIR.

Consequently, the respondent, represented pro bono by NDPA stalwart Carlos E. Estrada, a solo practitioner, sought review in the First Circuit. That petition succeeded! In 2017, the First Circuit vacated the BIA’s erroneous decision and directed the BIA to redo the case, this time considering the material, independent evidence of persecution that the BIA had previously ignored.

At this point, the respondent and her attorney had every reason to believe that their ordeal was over and that justice, and potentially life-saving protection, was “just around the corner.” But, alas, those hopes were dashed!

The BIA botched it again! In 2018, in what appeared to be one of the BIA’s “standard any reason to deny” opinions, the BIA purported to “affirm” the 2014 flawed decision of the IJ. In doing so, “the BIA erred by failing to follow this Court’s [1st Circuit’s] instruction to independently consider on remand the documentary evidence and to determine whether that evidence sufficed to establish past persecution.” Basically a “polite description” of “contempt of court” by the BIA.

Among the problems, the BIA failed to mention or evaluate one of the police reports that went directly to the basis for the BIA’s denial. Indeed, in a rather brutal example example of just how un-seriously the BIA took the court’s order, they erroneously stated that there were only two police reports. Actually, the record contained THREE such reports — since 2013!

Faced with the need for yet a second trip to the First Circuit, pro bono solo practitioner Carlos Estrada was “stretched to his pro bono limits.” Fortunately, the amazing pro bono lawyers at Sidley Austin LLP and National Immigrant Justice Center (“NIJC”) heeded the call and assisted Estrada and his client in their second petition for review.

With help from this “team of experts,” for the second time, the respondent “bested” EOIR and DOJ in the Circuit! While conceding that the BIA had errored in not complying with the court order, OIL, now under the direction of Dem A.G. Merrick Garland, advanced specious “alternative reasons” for upholding the BIA’s second flawed decision. These were emphatically rejected by the First Circuit! That court also noted that the (supposedly “expert”) BIA had applied the wrong legal standard in the case!

A rational person might think that after nearly a decade, this “charade of justice” would finally end, and the respondent would get her long-delayed, thrice-erroneously-denied relief. But, that’s not the way this dysfunctional and disreputable system works (or, in too many cases, doesn’t).

The First Circuit “remanded” the case to EOIR a second time, thus giving the BIA a totally undeserved THIRD CHANCE to improperly deny relief. Who knows if they will, or when they might get around to acting.

But, within Garland’s dystopian system, which lacks quality control, doesn’t require recognized expertise in human rights from its “judges,” and tolerates a BIA dominated by Trump-appointed appellate judges known for their records of hostility to asylum and related forms of protection from persecution and/or torture, a result favorable to the respondent, within her lifetime, is far from guaranteed.

As Attorney Carlos Estrada summed it up to me, “I just couldn’t do it [the second petition for review] pro bono by myself. I’m a solo practitioner. Such a waste of time and effort.”

Indeed, Garland’s failure to institute even minimal standards of due process, fundamental fairness, impartiality, expertise in his EOIR “court” system is unfairly stretching scarce pro bono resources beyond the limits, as well as denying timely, often life-saving or life-determining justice to individuals.

In a fair, functional, professional system, Estrada, Sidley Austin, and NIJC could be helping others in dire need of pro bono assistance. The respondent could have been enjoying for the last decade a “durable” grant of protection from persecution instead of having her life “up in the air” because of defective decision-making at EOIR and ill-advised “defenses” by OIL. The system could be adjudicating new cases and claims, instead of doing the same cases over and over, for a decade, at three levels of our justice system, without getting them right.

If you wonder why Garland’s broken EOIR is running an astounding 2.1 million case backlog, it’s NOT primarily because of the actions of respondents and their lawyers, if any! It has much to do with “Aimless Docket Reshuffling,” in “full swing” under Garland, incredibly poor judicial administration by DOJ/EOIR, poor judging by too many incumbents who lack the necessary expertise and demonstrated commitment to due process and fundamental fairness, poor administrative and judicial practices, inadequate training, and a toxic “culture of denial and disrespect for immigrants’ rights” that has been festering for years!

Do YOU think that sagas like this represent a proper approach to “justice in America at the retail level.” I don’t! But, incidents like this occur on a daily basis at EOIR, even if most escape the public spotlight!

“Out of sight, out of mind!” But, sadly, not so for the individuals whose lives are damaged by this system and their long-suffering attorneys, whose plights continue to be studiously ignored by Garland and his lieutenants. (Has Garland EVER offered to meet with the private, pro bono bar to find out what really is happening in “his” courts and how he might fix it? Not to my knowledge!)

Hats way off to Carlos E. Estrada, Esquire; Kenyon C. Hall, Jack W. Pirozzolo, and the rest of the folks at Sidley Austin, LLP (I note that Sidley generously has provided outstanding pro bono briefing assistance to our “Round Table” in the past); and Charles G. Roth and his team at the National Immigrant Justice Center for this favorable outcome and for insuring that justice is done. Garland and the Dems might not care about justice for persons in the U.S. who happen to be migrants, but YOU do! That, my friends, makes all the difference in human lives and in our nation’s as yet unfulfilled promise of “equal justice for all.”

🇺🇸 Due Process Forever!

PWS

02-10-23

CGRS @ Hastings 🇺🇸⚖️🗽ISSUES STATEMENT ON SUIT TO HALT DYING REGIME’S 👎🏻 “KILL ALL ASYLUM SEEKERS” ⚰️ FINAL REGS — As “Age Of Infamy” 🤮 Draws To Disgusting Close, Questions Remain As To Reversal Of Illegal/Immoral Policies, Accountability For Crimes Against Humanity 🏴‍☠️ By Grauleiter Miller ☠️ & Accomplices!

Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

https://cgrs.uchastings.edu/news/groups-challenge-trump-administration-rule-gutting-asylum

Groups Challenge Trump Administration Rule Gutting Asylum

Thursday, December 24, 2020

Four immigrant rights organizations – Pangea Legal Services, Dolores Street Community Services, Inc., Catholic Legal Immigration Network, Inc. (CLINIC), and Capital Area Immigrants’ Rights Coalition – have requested a temporary restraining order in a lawsuit challenging a sweeping new rule that will eviscerate access to protection for people seeking refuge in the United States. Set to take effect on January 11, 2021, the rule completely transforms the asylum process, severely limiting the availability of asylum and related protections to individuals fleeing persecution or torture. The plaintiff organizations are represented by the Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and the law firm of Sidley Austin LLP.

“Published in the waning hours of the Trump administration, this rule marks its most far-reaching attempt to end asylum yet, and a death knell to our country’s longstanding commitment to offer safe haven for the persecuted,” said Jamie Crook, Director of Litigation at the Center for Gender & Refugee Studies. “The rule violates our laws, flouts our treaty obligations, and upends decades of legal precedent. If the mammoth rule is permitted to take effect, it will result in people being deported to face persecution, torture, and even death in their home countries.”

The rule deprives asylum seekers of any semblance of due process, imposing many barriers to relief before they even have the opportunity to present their case in immigration court. Among its numerous harmful provisions, the rule allows judges to deny an asylum application without holding a hearing. The rule also establishes 12 new “discretionary” factors that will bar many asylum seekers from life-saving protection. These include a de facto bar to asylum for applicants who pass through another country en route to the United States, effectively codifying and expanding the Trump administration’s third country transit bar, which the courts have already struck down as unlawful.

For those who are able to get their case before a judge, the new rule radically redefines who qualifies as a “refugee,” distorting the law so thoroughly that adjudicators can deny relief to virtually all applicants. The rule explicitly excludes from protection survivors of gender-based violence, children and families targeted by gangs, and people fleeing other abhorrent abuses. It also redefines “persecution” in such a way that judges will be directed to deny asylum even to individuals who have been detained and threatened with death due to their beliefs.

“Despite its enormous scope, the administration rushed this rule through the regulatory process without regard for its life-or-death implications for asylum seekers,” said Sabrineh Ardalan, Director of the Harvard Immigration and Refugee Clinical Program. “The administration chose to brush aside nearly 90,000 public comments raising serious concerns with the proposed rule.”

The plaintiffs in this lawsuit are nonprofit organizations that provide immigration legal services and have previously come together to stop other Trump administration attempts to erect unlawful barriers to asylum. They contend that the new rule will make it far more difficult to assist asylum-seeking clients and cause serious harm to the immigrant communities they serve.

The plaintiffs have asked the U.S. District Court for the Northern District of California to issue a permanent nationwide injunction to prevent the rule from taking effect, arguing that the rule violates the Immigration and Nationality Act, the Administrative Procedures Act, the Due Process Clause of the U.S. Constitution, and the United States’ duty under international law not to return people to persecution or torture. On Wednesday the plaintiffs requested a temporary restraining order to immediately halt implementation of the rule while the court considers the case.

The plaintiffs also argue that the rule is procedurally invalid, as it was co-issued by Acting Department of Homeland Security Secretary Chad Wolf, whom multiple courts have declared was unlawfully appointed to his position and lacks the authority to promulgate such a rule.

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Speeding up executions, killing and torturing the most vulnerable humans, denying COVID relief to desperate Americans, issuing corrupt pardons to murderers, fraudsters, cronies, and dishonest politicos, plotting treason against the USG — that’s how the regime and its sycophants have spent their waning days.

Despite the obvious desire to move on and avoid dealing with the crimes and overt corruption of the defeated regime, it will be difficult for the Biden-Harris Administration to avoid questions of accountability for the worst President, worst regime, and worst major party in U.S. history. Honestly coming to grips with the past is often a prerequisite for a better future.

⚖️🗽🇺🇸Due Process Forever!

PWS

12-27-20

WHILE SESSIONS “BLOWS OFF” VIEWS OF “OUR GANG” OF RETIRED US IJs & BIA JUDGES, ARTICLE III (“REAL’) COURTS (& EVEN “OIL”) ARE PAYING ATTENTION – J.C. Andre of Sidley Austin Reports That 10th Circuit Has Remanded Matumona v. Sessions On The Issue Of Access To Counsel!

Judge Schmidt –

Thank you so much for the flattering post about our work with you all in recent months.

On that front, we have two updates for you all.

First, please see attached the as-filed versions of all three briefs filed last week in Cantarero-Lagos v. Sessions, CA5 No. 18-60115 (the petitioner’s brief, our amicus brief, and the nonprofit immigration legal services’ amicus brief). As some of you will see, there were a couple of you whom we could not include as signatories to our brief because we received your joinders too late. Our apologies for not being able to work those of you in by name, but we had a hard filing deadline of 10 p.m. PST on May 23. Rest assured, however, that the helpful comments you gave us along the way are reflected in the brief.

Second, in case some of you were not yet aware, all of our work two months ago in Matumona v. Sessions, CA10 No. 18-09500, paid off. On the government’s concession, the Tenth Circuit last week remanded the case to the BIA. A copy of the remand order also is attached.

It’s been a pleasure and an honor to work with you guys so much over the last two months.

Hope everyone had a great Memorial Day weekend,

jc

JEAN-CLAUDE ANDRÉ

SIDLEY AUSTIN LLP
+1 213 896 6007
JCAndre@Sidley.com

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Here’s a copy of the remand order:

2018-05-22_Order Remanding

And, here’s a link to Hon. Jeffrey Chase’s previous blog on the Matumona Amicus effort:

https://wp.me/p8eeJm-2ko

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The pleasure is all ours, J.C.! Thanks for everything that you and Katelyn Rowe have done for us and to Sidley Austin for agreeing to undertake this important pro bono project!

Always interesting how folks sometimes give your views more attention after you’re gone.

Sessions is setting a course for disaster in the Article III Courts. If he keeps on interfering with the judicial process and listening to only one side (as he has done all his life), DHS & DOJ are likely to get themselves so tied up in litigation that nobody will be deported as the Immigration Court system disintegrates and the Article IIIs move in to clean up the mess.

My current Immigration Law & Policy students at Georgetown Law seemed surprised to learn that there is a so-called “court system” in America where the Chief Prosecutor appoints the judges, sets the rules, and can change the result of any decision that he doesn’t like. Sure sounds like something out of a Kafka novel or the Country Report on a Third World dictatorship.

PWS

05-30-18

HON. JEFFREY CHASE: In-Depth Analysis Of “Our Gang’s” Amicus Brief In Matter of W-Y-C- & H-O-B-

https://www.jeffreyschase.com/blog/2018/5/28/amicus-brief-filed-in-w-y-c-h-o-b-appeal

May 28 Amicus Brief Filed in W-Y-C- & H-O-B- Appeal

On May 23, an amicus brief was filed in the U.S. Court of Appeals for the Fifth Circuit on behalf of a group of 13 former immigration judges (including myself) and BIA members in the appeal of the BIA’s precedent decision in Matter of W-Y-C- & H-O-B-. In that decision, a three-judge panel of the BIA held that an asylum applicant must clearly delineate its proposed particular social group before the immigration judge. The Board held that the asylum applicant may not alter the social group formulation on appeal to the BIA, citing the “inherently factual nature of the social group analysis.”

Our brief argues that the Board’s reasoning is flawed. The Board has held that the determination of whether a particular social group is cognizable is a question of law which the Board may review de novo. Our brief also points out that the Board’s arguments as to why it will generally not consider a new group on appeal overlooks the fact that it has done just that in the past.

One member of our group, former BIA chairperson Paul W. Schmidt, was the author if the Board’s 1996 landmark decision in Matter of Kasinga, the first BIA precedent to grant a gender-based asylum claim. Two other members of our group, former Board Members Gus Villageliu, and Lory D. Rosenberg, respectively joined in the majority opinion and wrote a concurring opinion in Kasinga. As the three pointed out in the drafting process, the particular social group that the Board approved in that case was neither delineated before the IJ nor proposed by either party on appeal. It was crafted for the first time by the Board itself, in a manner that was consistent with the factual record below and which allowed the Board to grant relief. The three noted that the ability of the Board itself to alter the group’s contours is often necessary to allow an en banc Board to reach consensus.

Our brief also pointed to the Board’s decision in Matter of M-E-V-G- to remand the record where “the respondent’s proposed particular social group has evolved during the pendency of his appeal.” We also point out how circuit courts have frequently cited to the Board’s decades-long practice of clarifying proposed groups.

Our brief additionally underscores the extreme complexity of particular social group formulation, particularly in light of the highly-criticized additional requirements of particularly and social distinction imposed by the Board in recent years. We note that group delineations will often be made by pro se respondents, often with a limited mastery of English, sometimes in detained facilities with limited access to counsel or law libraries.

This was the sixth Amicus brief filed by our group. We are most thankful for the outstanding assistance of attorneys Jean-Claude Andre and Katelyn Rowe of the law firm of Sidley Austin for lending their assistance pro bono for the second time in the drafting of our group’s brief. We also acknowledge the distinguished counsel for the respondents, led by Fatma Marouf of Texas A&M Law School, Geoff Hoffman of the University of Houston Law Center, and Deborah Anker of Harvard Law School.

The link to our full brief is here: http://immigrationcourtside.com/wp-content/uploads/2018/05/Cantarero-Amicus-Brief.pdf

The cooperation and assistance of so many brilliant minds and caring hearts is a source of great comfort in these challenging times.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

WITH HELP FROM SIDLEY AUSTIN (LA), “OUR GANG” OF RETIRED IJs WEIGHS IN WITH 5th CIR. AGAINST BIA’S WRONG-HEADED PRECEDENT IN Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018)!

Cantarero – Amicus Brief

Thanks to “Our Heroes” Jean-Claude Andre and Katelyn N Rowe of Sidley Austin LPP, LA:

HERE’S THE TITLE PAGE AND TOC:

No. 18-60115

In the United States Court of Appeals for the Fifth Circuit

WENDY YESSENIA CANTARERO LAGOS & HENRY OMAR BONILLACANTARERO,

Petitioners,

v.
JEFFERSON B. SESSIONS, III, UNITED STATES ATTORNEY GENERAL,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, BIA Nos. A206-773-719 & A206-773-720

AMICI CURIAE BRIEF OF RETIRED IMMIGRATION JUDGES AND FORMERMEMBERS OF THE BOARD OF IMMIGRATION APPEALS IN SUPPORT OFPETITIONERS AND VACATUR AND REMAND

Jean-Claude André
Katelyn N. Rowe
Sidley Austin LLP
555 West Fifth Street, Suite 4000 Los Angeles, CA 90013

(213) 896-6007 jcandre@sidley.com krowe@sidley.com

Counsel for Amici Curiae

May 23, 2018

TABLE OF CONTENTS

Identity and Interest of Amici Curiae ……………………………………………… 1

ARGUMENT …………………………………………………………………………………3

Because particular social group jurisprudence is unduly
complex and applicants face various access-to-justice
barriers, Immigration Judges and Board Members will
frequently clarify an applicant’s proposed particular social
group ……………………………………………………………………………………. 9

The decision below disregards prior precedent in which Immigration Judges and Board Members have clarified an applicant’s proposed particular social group or allowed an applicant to present a revised particular social group on
appeal ………………………………………………………………………………… 21

This Court should vacate the decision below because its ambiguous holding will encourage Immigration Judges to be intolerant of applicants’ efforts to revise their PSGs and will enable the Board to issue boilerplate decisions denying relief ….. 28

CONCLUSION ……………………………………………………………………………. 31 APPENDIX …………………………………………………………………………… App. 1

HERE’S A SUMMARY OF OUR ARGUMENT:

ARGUMENT

In their decades of experience on the bench, amici regularly assisted applicants in the process of clarifying their proposed PSGs.Amici also allowed applicants to present revised PSGs during their administrative appeals. This judicial practice has afforded Board Members the flexibility to engage in an independent, meaningful review of the evidentiary record and provide appropriate relief to applicants based on revised PSGs. See, e.g., Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (granting the applicant asylum based on a revised PSG that the Board itself formulated). In light of the complexity of PSG jurisprudence and the various access-to-justice barriers that applicants must navigate in immigration court, it is essential that the judicial practice of clarifying PSGs is not chilled by the decision below. See, e.g.,Ardestani v. INS, 502 U.S. 129, 138 (1991) (noting “the complexity of

3

immigration procedures, and the enormity of the interests at stake . . . .”).

Because PSG cognizability is a legal determination, amici believe that Immigration Judges and Board Members are obligated to consider any potential PSG that is supported by the factual record—even if the PSG is being proposed for the first time on appeal. PSG clarification is consistent with the requirement that administrative immigration decisions “must reflect meaningful consideration of the relevant substantial evidence supporting the alien’s claims.” Abdel-Masieh v. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal quotations and citations omitted); see also Matter of A-R-C-G-, 26 I&N Dec. 388, 390-91 (BIA 2014) (“The question whether a group is a ‘particular social group’ within the meaning of the Act is a question of law that we review de novo.”). In this way, the judicial practice of clarifying an applicant’s PSG to match the evidentiary record falls squarely within the traditional roles of impartial administrative immigration tribunals. SeeUNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 16 (2011) (“It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared . .

4

. .”); Matter of S-M-J-, 21 I&N Dec. 722, 723 (BIA 1997) (“Although we recognize that the burden of proof in asylum and withholding of [removal] cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief.”). Importantly, Amici did not receive reproach from the Board for clarifying proposed PSGs. Nor were amici overturned by circuit courts on the basis that the Board should not consider newly revised PSGs on appeal.

Amici believe that the decision below, Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018), if affirmed by this Court, will constitute a significant departure from the current judicial practice of PSG clarification. The Board held that it “generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.” (AR 3) This decision completely ignores an important reality of the immigration court system: that Immigration Judges and Board Members have frequently clarified applicants’ proposed PSGs.

HERE’S THE “CAST OF CHARACTERS:”

APPENDIX BIOGRAPHIES OF AMICI CURIAE

The Honorable Steven R. Abrams was appointed as an Immigration Judge in September of 1997. From 1999 to June 2005, Judge Abrams served as the Immigration Judge at the Queens Wackenhut Immigration Court at JFK Airport in Queens. He has also worked at the Immigration Courts in New York and Varick Street Detention facility. Prior to becoming an Immigration Judge, he was the Special Assistant U.S. Attorney in the Eastern District of New York in the Criminal Division in charge of immigration. Judge Abrams retired in 2013 and now lectures on immigration in North Carolina.

The Honorable Sarah M. Burr began serving as an Immigration Judge in New York in 1994. She was appointed Assistant Chief Immigration Judge in charge of the New York, Fishkill, Ulster, Bedford Hills, and Varick Street immigration courts in 2006. Judge Burr served in this capacity until January 2011, when she returned to the bench full-time until she retired in 2012. Prior to her appointment, she worked as a staff attorney for the Criminal Defense Division of the Legal Aid Society in its trial and appeals bureaus. She also worked as

App. 1

the supervising attorney in the Legal Aid Society immigration unit. Judge Burr currently serves on the Board of Directors of the Immigrant Justice Corps.

The Honorable Jeffrey S. Chase served as an Immigration Judge in New York City from 1995 to 2007 and was an attorney advisor and senior legal advisor at the Board of Immigration Appeals from 2007 to 2017. He is presently in private practice as an independent consultant on immigration law, and is of counsel to the law firm of DiRaimondo & Masi in New York City. Prior to his appointment, he was a solo practitioner and volunteer staff attorney at Human Rights First. He was also the recipient of the American Immigration Lawyers Association’s (“AILA”) annual pro bono award in 1994 and chaired AILA’s Asylum Reform Task Force.

The Honorable George Chew was appointed as an Immigration Judge in 1995 and served until 2017, when he retired. He also previously served as a trial attorney for the former Immigration and Naturalization Service in New York from 1979 to 1981.

The Honorable John F. Gossart, Jr. served as an Immigration Judge from 1982 until his retirement in 2013 and is the former

App. 2

president of the National Association of Immigration Judges. At the time of his retirement, he was the third most senior immigration judge in the United States. Judge Gossart was awarded the Attorney General Medal by then Attorney General Eric Holder. From 1975 to 1982, he served in various positions with the former Immigration Naturalization Service, including as general attorney, naturalization attorney, trial attorney, and deputy assistant commissioner for naturalization. From 1997 to 2016, Judge Gossart was an adjunct professor of law and taught immigration law at the University of Baltimore School of Law and more recently at the University of Maryland School of Law. He has been a faculty member of the National Judicial College, and has guest lectured at numerous law schools, the Judicial Institute of Maryland, and the former Maryland Institute for the Continuing Education of Lawyers. Judge Gossart is a past Board member of the Immigration Law Section of the Federal Bar Association. Judge Gossart served in the United States Army from 1967 to 1969 and is a veteran of the Vietnam War.

The Honorable William P. Joyce served as an Immigration Judge in Boston, Massachusetts. After retiring from the bench, he became the Managing Partner of Joyce and Associates and has 1,500

App. 3

active immigration cases. Prior to his appointment to the bench, he served as legal counsel to the Chief Immigration Judge. Judge Joyce also served as an Assistant U.S. Attorney for the Eastern District of Virginia, and Associate General Counsel for enforcement for INS. He is a graduate of Georgetown School of Foreign Service and Georgetown Law School.

The Honorable Carol King served as an Immigration Judge from 1995 to 2017 in San Francisco and was a temporary member of theBoard of Immigration Appeals for six months between 2010 and 2011. Judge King previously practiced immigration law for ten years, both with the Law Offices of Marc Van Der Hout and in her own private practice. She also taught immigration law for five years at Golden Gate University School of Law and is currently on the faculty of the Stanford University Law School Trial Advocacy Program. Judge King now works as a Removal Defense Strategist, advising attorneys and assisting with research and writing related to complex removal defense issues.

The Honorable Lory D. Rosenberg served on the Board of Immigration Appeals from 1995 to 2002. She then served as Director of the Defending Immigrants Partnership of the National Legal Aid &

App. 4

Defender Association from 2002 until 2004. Prior to her appointment to the Board, she worked from 1991-1995 as Director of the Legal Action Center at the American Immigration Law Foundation, was in private practice, and was the 1982 co-founder of the asylum and legal program at Centro Presente in Cambridge, Massachusetts. She is the author ofImmigration Law and Crimes, and was an adjunct professor of law and taught immigration law at American University Washington College of Law between 1997 and 2004. An excerpt from one of Judge Rosenberg’s separate opinions was quoted by the United States Supreme Court in its 2001 decision in I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Judge Rosenberg has served as a member of the International Association of Refugee Law Judges, an elected member of the Board of Governors of AILA, a Board Member of the Federal Bar Association, Immigration Law Section. She also frequently lectures and trains immigration attorneys on current topics of complexity, including asylum and refugee law, human rights, and the intersection of criminal and immigration law. Judge Rosenberg is the founder of the Immigration Defense and Expert Advocacy Solutions (IDEAS) Consulting and Coaching, LLC, where she provides legal mentoring, consulting, and personal and

App. 5

business coaching for immigration lawyers. She currently serves as Senior Attorney and Advisor for the Immigrant Defenders Law Group, PLLC.

The Honorable Susan Roy started her legal career as a Staff Attorney at the Board of Immigration Appeals, a position she received through the Attorney General’s Honors Program. She served as Assistant Chief Counsel, National Security Attorney, and Senior Attorney for the Department of Homeland Security Office of Chief Counsel in Newark, New Jersey. She then became an Immigration Judge in Newark, New Jersey. Judge Roy has been in private practice for nearly five years, and two years ago she opened her own immigration law firm. She also currently serves as the New Jersey Chapter Liaison to the Executive Office for Immigration Review for AILA and the Vice Chair of the Immigration Law Section of the New Jersey State Bar Association. In 2016, Judge Roy was awarded the Outstanding Pro Bono Attorney of the Year by the New Jersey Chapter of the Federal Bar Association.

The Honorable Paul W. Schmidt served as an Immigration Judge from 2003 to 2016 in Arlington, Virginia. He previously served

App. 6

as Chairman of the Board of Immigration Appeals from 1995 to 2001, and as a Board Member from 2001 to 2003. Judge Schmidt authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1995), which extended asylum protection to victims of female genital mutilation. He served in various positions with the former Immigration Naturalization Service, including Acting General Counsel (1986-1987, 1979-1981) and Deputy General Counsel (1978-1987). He also worked as the managing partner of the Washington, D.C. office of Fragomen, DelRey & Bernsen from 1993 to 1995. Judge Schmidt practiced business immigration law with the Washington, D.C. office of Jones, Day, Reavis and Pogue from 1987 to 1992 and was a partner at the firm from 1990 to 1992. Judge Schmidt served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center from 2012 to 2014 and 2017 to present. He was a founding member of the International Association of Refugee Law Judges and presently serves as Americas Vice President. He also serves on the Advisory Board of AYUDA, a nonprofit that provides direct legal services to immigrant communities in Washington, D.C. and Maryland. Judge Schmidt assists the National Immigrant Justice

App. 7

Center/Heartland Alliance on various projects, as well as writes and lectures on immigration law topics at various forums throughout the country. Judge Schmidt created immigrationcourtside.com, an immigration law blog.

The Honorable Gustavo D. Villageliu served as a Board of Immigration Appeals Member from July 1995 to April 2003. He then served as Senior Associate General Counsel for the Executive Office for Immigration Review and helped manage FOIA, Privacy, and Security as EOIR Records Manager until he retired in 2011. Before becoming aBoard Member, Villageliu was an Immigration Judge in Miami and oversaw both detained and non-detained dockets, as well as the Florida Northern Region Institutional Criminal Alien Hearing Docket from 1990 to 1995. Mr. Villageliu was a member of the Iowa, Florida, and District of Columbia Bars. He graduated from the University of Iowa College of Law in 1977. After working as a Johnson County Attorney prosecutor intern in Iowa City, he joined the Board of Immigration Appeals as a staff attorney in January 1978 and specialized in war criminal, investor, and criminal alien cases.

App. 8

The Honorable Polly Webber served as an Immigration Judge from 1995 to 2016 in San Francisco, with details in facilities in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, Judge Webber practiced immigration law from 1980 to 1995 in her own private practice in San Jose. She was a national officer in AILA from 1985 to 1991 and served as National President of AILA from 1989 to 1990. Judge Webber also taught immigration and nationality law at both Santa Clara University School of Law and Lincoln Law School.

The Honorable Robert D. Weisel served as an Immigration Judge in the New York Immigration Court from 1989 until his retirement at the end of 2016. Judge Weisel was an Assistant Chief Immigration Judge, supervising court operations both in New York City and New Jersey. He was also in charge of the nationwide Immigration Court mentoring program for both Immigration Judges and Judicial Law Clerks. During his tenure as Assistant Chief Immigration Judge, the New York court initiated the first assigned counsel system within the Immigration Court’s nationwide Institutional Hearing Program.

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A warm welcome to our good friend and colleague Judge (and former Assistant Chief Immigration Judge) of the U.S. Immigration Court in New York, NY!

Due Process Forever!

PWS

05-25-18

THE LATEST FROM THE HON. JEFFREY CHASE: “Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker” — PLUS: A Link To The Actual Brief! — MATUMONA V. SESSIONS, 10th Cir.

https://www.jeffreyschase.com/blog/2018/3/22/amicus-brief-filed-in-10th-cir-petition-for-remotely-detained-asylum-seeker

Mar 22 Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker

An amicus brief was filed yesterday by attorneys at the law firm of Sidley Austin on behalf of an asylum seeker from the Democratic Republic of Congo in the case of Matumona v. Sessions. Fleeing for his life and seeking asylum in the U.S., the petitioner upon arrival was detained by DHS in the Cibola County Detention Center in New Mexico.

To call Cibola remotely located is truly an understatement. If you Google Map it, you will see that the detention center is surrounded on the east, south, and west by the stunningly scenic, 263,000 acre El Malpais National Conservation Area. Moving out a bit further, the map shows reservations of the Zuni, Navajo, and Apache nations, beyond which lies the Sevilleta National Wildlife Refuge, and both the Carson and Santa Fe National Forests.

In fairness, Albuquerque is an hour and a half drive away. However, that city has a total of 36 attorneys who are members of the American Immigration Lawyers Association, working for 25 offices or organizations. By comparison, New York City has well over a thousand AILA members (not including many others located in the surrounding suburbs). The problem of representation is compounded by the fact that the petitioner, although detained at Cibola, had his removal hearings in the Immigration Court in Denver, 500 miles away. The National Immigrant Justice Center was able to identify only 21 attorneys in all of New Mexico and Texas who would be willing to represent detainees at Cibola in their removal proceedings. For those requiring pro bono representation, the options are even fewer. According to the latest figures provided by DHS, there were 689 non-citizens being detained in Cibola, and that was less than the facility’s full capacity.

Therefore, close to none of those detained at Cibola are able to exercise their constitutional right to be represented by an attorney, as assigned counsel at government expense does not exist in immigration proceedings. A study by the Vera Institute of Justice found a staggering 1,100 percent increase in successful outcomes when universal representation was made available to the detained population at the Varick Street Detention Facility in New York City. I will note that universal representation was possible there because the Varick Street facility is located in the heart of New York City, within walking distance of a multitude of immigration law offices, law school clinics, and not-for-profit organizations.

Left to represent themselves, asylum seekers detained at Cibola and other similar remote facilities are further hampered in their limited access to phones (which are necessary to contact friends and relatives abroad who might provide evidence to corroborate the asylum claim), and lack of access to the internet (which would allow detainees to research the law and to access and download country condition materials in support of their claims). Additionally, detention centers tend to have inadequate law libraries. Furthermore, detainees are required to complete their applications, conduct research, and file supporting documents in English, which is incredibly difficult for someone such as the petitioner, whose native language is Lingala. EOIR’s own statistics show that only ten percent of respondents in removal proceedings last year had enough of a command of English to allow them to participate in their proceedings in that language. As asylum seekers have often suffered torture or other violence, post-traumatic stress disorder and other physical or psychological remnants of their past mistreatment (which might be further exacerbated by their detention) creates an additional obstacle to self-representation. All of this overlooks the fact that U.S. asylum law is highly complex even for educated English-speakers.

The latest amicus brief raises these and other points on behalf of a group of former immigration judges and BIA Board members. The brief further makes recommendations for practices to be adopted by immigration judges to help mitigate the above-cited obstacles to pro se applicants in pursuing relief. These recommendations include having the immigration judges explain the applicable legal standard (and any bars to relief) to pro se applicants; introducing country condition evidence (as well as making applicants aware of country condition resources available on EOIR’s own Virtual Law Library); and advocating for free, uninterrupted access to telephones for respondents in detention centers.

To my knowledge, our amicus brief filed with the BIA last summer in the U.S. Supreme Courts remand of Negusie v. Holder was the first time that former immigration judges and Board members identified as a group for amicus purposes. The seven of us who participated in that brief doubled to 14 for the next such brief, filed with the Attorney General last month in Matter of Castro-Tum. I see it as a positive development that in the short time since these briefs were filed, we have been called upon to provide our experience in expertise in two more cases, one filed last week in the Ninth Circuit on the issue of representation for children in immigration proceedings (C.J.L.G. v. Sessions), and now in this case filed yesterday in the Tenth Circuit. Hopefully, this outstanding group will continue to contribute to the cause of justice for vulnerable noncitizens in removal proceedings.

And our heartfelt thanks to the dedicated attorneys at Sidley Austin, Jean-Claude Andre and Katelyn Rowe, for drafting the outstanding brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Dan Kowalski reports from LexisNexis Immigration Community:

CA1 on Evidence…Round 2! – Aguilar-Escoto II

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