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Dan Kowalski reports for Lexis Nexis Immigration Community:
CA1 on Changed Country Conditions (Guatemala) – Mendez Esteban v. Garland
http://media.ca1.uscourts.gov/pdf.opinions/22-1215P-01A.pdf
“[T]he 2017 report and the testimony from Mendez do not — together or independently — establish that changes in Guatemala have fundamentally altered the specific conditions that gave rise to Mendez’s substantiated claim of political persecution. Accordingly, the BIA’s conclusion that DHS rebutted Mendez’s presumption of well-founded fear is not supported by substantial evidence. We therefore find Mendez statutorily eligible for asylum. … [W]e grant the petition for review as to Mendez’s claims for asylum and withholding of removal. We deny the petition as to Mendez’s claim for CAT protection. We accordingly affirm the denial of Mendez’s CAT claim, vacate the denials of Mendez’s political opinion-based asylum and withholding of removal claims, and remand to the IJ for further proceedings consistent with this opinion.”
[Hats off to Samuel Brenner, Emma Coreno, Patrick Roath and Rachel Scholz-Bright!]
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CA3 on Jurisdiction: Kosh v. Atty. Gen.
“Appellant Ishmael Kosh petitions us to review the order from the Board of Immigration Appeals (“BIA”) that terminated his asylum status and denied his applications for withholding of removal and protection under the Convention Against Torture. He maintains that the Department of Homeland Security (“DHS”) improperly sought to terminate his asylum status in asylum-only proceedings because he first entered the United States under the Visa Waiver Program. Per Kosh, that limiting program no longer applies to him, so he is entitled to complete-jurisdiction removal proceedings instead. In such unlimited proceedings, asylees can raise an adjustment-of-status claim as a defense to removal. We conclude that, if Kosh re-entered the country as an asylee without signing a new Visa Waiver Program form limiting his defenses, he is entitled to complete-jurisdiction proceedings. We thus grant his petition for review, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion.”
[Hats off to Ben Hooper and Jonah Eaton!]
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As many practitioners know, the BIA’s continual bogus “fundamentally changed circumstances” findings for countries where the human rights conditions have remained abysmal for decades, certainly NOT materially improving, and in most cases in the Northern Triangle getting worse, are an endemic problem. Following a finding of past persecution, ICE, not the respondent, bears the burden of proof!
If that burden were honestly and expertly applied, considering individualized fear of harm, ICE would rebut the presumption by a preponderance of the evidence in only a minuscule percentage of cases. Certainly, that was my experience over 21 years on both the trial and appellate benches at EOIR.
Moreover, in this and most other cases of past persecution, even if ICE were able to satisfy its burden of rebutting the presumption of future persecution by a preponderance of the credible evidence, the respondent would be a “slam dunk” for a grant of discretionary asylum on the basis of “other serious harm.” It’s not clear that any of the three judicial entities that considered this case understood and properly applied the “other serious harm” concept.
The BIA’s chronic failure to fulfill its proper role of insuring a fair application of asylum and other protection laws and to provide guidance “shutting down” IJs who routinely manufacture bogus reasons to deny is a systemic denial of due process and failure of judicial professionalism. That it continues to happen under a Dem Administration pledged to restore the rule of law and due process for asylum seekers is astounding, deplorable, and a cause for concern about what today’s Dems really stand for!
This case should have been granted by the IJ years ago. An appeal by ICE on this feeble showing should have been subject to summary dismissal.
That cases like Mendez Esteban are still aimlessly kicking around Garland’s dysfunctional system in an elusive search for justice is a serious indictment of the Biden Administration’s approach to asylum and to achieving long overdue, life-changing, and readily achievable reforms that are within their power without legislative action. It also helps explain why Garland has neither reduced backlogs nor sufficiently improved professionalism, even with many more IJs on the bench.
Practical tips for fighting against bogus “presumption rebuttals” by IJs under 8 CFR 208.13:
- Insist that the IJ actually shift the burden to ICE to rebut the presumption of future persecution based on past persecution.
- Use the regulatory definition of “reasonably available” internal relocation to fight bogus IJ findings. For example, countries in the Northern Triangle are “postage stamp sized” and plagued by nationwide violence and corruption. The idea of “reasonably available internal location” under all the factors is prima facie absurd! (A “better BIA” would have already pointed this out in a precedent.)
- Argue for a discretionary grant of asylum even in the absence of a current well founded fear based on 1) “compelling circumstances” arising out of the past persecution (“Chen grant”), and/or “other serious harm” under the regulations — a much broader concept than persecution that does NOT require nexus to a protected ground.
Knowing and using the law aggressively to assert your client’s rights, making the record, and exhausting all appellate options are the best defenses to biased, anti-asylum, often disconnected from reality denials of life-saving relief to your clients!
🇺🇸 Due Process Forever!
PWS
05-13-23
