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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    Paul Schmidt posted my article on his blog, http://immigrationcourtside.com, with the following comment:

    As someone who was extensively involved in the drafting and enactment of the Refugee Act of 1980 (during my time as INS Deputy General Counsel) I think that Nolan’s ideas are the type of creative, humane, international solution that we were hoping to achieve by enacting international refugee standards and definitions into U.S. law and by providing flexibility for “in-country” programs (with which the U.S. has some historical record of success). Also, solving problems in an orderly manner as close as possible to the area of conflict causing the flow is an important consideration in international protection. The Convention itself also encourages countries to think beyond its terms to create expanded forms of protection, some temporary, some durable. And, of course, giving some international thought, resources, and attention to what is causing the refugee flow in the first place is very important. I see all of these things in Nolan’s ideas.

    http://immigrationcourtside.com/2018...-convention-i/

    Nolan Rappaport
  2. ImmigrationLawBlogs's Avatar
    Roger says, "Arguing that every time a husband hits or threatens his wife anywhere in the world, that automatically entitles her to move to and live in the US for the rest of her life under our asylum laws goes beyond the bounds of reason or common sense, and even I would have to agree that this country doesn't have room for another billion or two or three billion immigrants. For that reason, I reluctantly have to agree with AG Sessions - and Nolan - on the domestic violence asylum issue."

    I am glad that we agree on that point. But I have to point out that the same reasoning applies to persecution claims based on general violence and gang violence. The reality is that there aren't many persecution claims that meet the refugee definition of being on account of race, religion, nationality, membership in a particular social group, or political opinion.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    Better than Trump's brutal and inhuman child separation policy to be sure, but we have laws allowing many of these people to come to the US legally as asylees from gang violence - despite Sessions' recent dictum or diktat - I don't know which word is more accurate - in a recent decision.

    What is so terrible about the idea of letting them into the United States, as we did with Soviet Jews, Cubans, Eastern Europeans and many other white refugees in the recent past?

    Why is keeping darker-skinned Central Americans with potentially valid asylum claims under our current laws out of this country such a high priority?

    Roger Algase
    Attorney at Law
    Updated 06-20-2018 at 12:44 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I will only mention again, one more time, that Sessions' doesn't seem to have any problem suggesting that US citizen gang violence victims or potential victims are a distinct "social" group deserving US government justice and protection as a matter of the highest importance. Trump has gone so far as to call gang members "animals" and to give graphic descriptions of young (white) American women who suffered what everyone agrees was horrible brutality from the gangs in this country.

    But when these same gangs terrorize, threaten and murder dark skinned victims in Central America, then somehow these same victims or potential victims don't seem to constitute a "social group" for purposes of protection under our law, according to Sessions.
    Nolan suggests that Sessions hasn't totally closed the door on the idea of finding some narrower definition of a social group that might include some gang victims or potential victims for asylum purposes.

    If I were an IJ today trying to formulate such a narrower definition in the light of Sessions' decision, I would be taking great care to keep my resume up to date at the same time, because I would very likely have to be looking for another job very soon.

    In contrast, Trump has not included spousal abuse among his many methods of stigmatizing non-white immigrants, and his administration (despite VAWA) has not identified spousal abuse victims or potential victims as a special class which our immigration laws are designed to protect, as is the case with gang violence victims.

    Arguing that every time a husband hits or threatens his wife anywhere in the world, that automatically entitles her to move to and live in the US for the rest of her life under our asylum laws goes beyond the bounds of reason or common sense, and even I would have to agree that this country doesn't have room for another billion or two or three billion immigrants. For that reason, I reluctantly have to agree with AG Sessions - and Nolan - on the domestic violence asylum issue.

    Roger Algase
    Attorney at Law
    Updated 06-18-2018 at 01:09 PM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I will not comment further about domestic violence, because, as I have made clear above, that is not the main problem that I have with Sessions' decision.

    I also agree with Nolan that the gang violence language in Sessions' decision seems to have been added as an aside, or as dictum, as we lawyers would say, since that issue was not involved in the case which Sessions was ruling on. Therefore, in theory, an IJ hearing a gang violence based asylum case, would be free to make a decision on that issue based on existing law as he or she interprets it without paying the slightest attention to Sessions' above ruling.

    How long would such a hypothetical IJ expect to keep his or her job?

    IJ's are the employees of the Attorney General. If I am not mistaken, they can be removed at any time, if the AG is not satisfied with their performance.

    In the above case, Sessions has determined (at the bottom of page 335):

    "For example, groups comprising persons who are 'resistant to gang violence' and susceptible to gang violence on that basis 'are too diffuse to be recognized as a particular social group' [citations omitted]...

    Victims of gang violence often come from all segments of society, and they possess no distinguishing trait that would identify them as members of such a group."

    Is Nolan saying that IJ's are still free to ignore the above language and to follow different precedents or decisions opposed to Sessions' views on gang violence as a basis for asylum if they see fit?

    Would not such an IJ be subject to removal for insubordination?

    And where does this leave the BIA? How much freedom will it have to ignore the AG's determination, even if it is only dictum? Is this something that the BIA often does?

    I am asking Nolan, because I don't claim to know the answer myself.

    And when Donald Trump and Jeff Sessions talk about MS-13 violence in the US, they do not seem to have any problem in identifying its victims or potential victims as a distinct group - one made up mainly of young white women threatened by MS-13 "animals" according to the president.

    If white gang victims or potential victims in the US are in acute danger from and need US government protection and "justice" - o use Sessions' word in one of his speeches on this topic, why are darker-skinned, Hispanic, victims or potential victims of THESE SAME GANGS in Central America not entitled to "justice" and the protection of our laws also when they arrive at our border seeking it?

    If Nolan has an answer to this question, which is about gang violence only, not domestic violence, I would look forward to seeing and learning from his response.

    Roger Algase
    Attorney at Law
    I have explained Sessions' decision to Roger several times now, in addition to the explanation my article gives. But he still doesn't get it.

    He quotes Sessions saying,

    "For example, groups comprising persons who are 'resistant to gang violence' and susceptible to gang violence on that basis 'are too diffuse to be recognized as a particular social group'."

    And Roger says that judges refusing to follow that advice will risk being fired. He is absolutely right, but not for the reasons he is giving.

    The category described in that paragraph was not accepted as a basis for a particular social groups as long ago as when I was writing decisions for the Board of Immigration Appeals, which I did for more than twenty years (Including more than 1,000 asylum cases), and but for the ridiculous precedent that Sessions overrules in his decision, it would never have been accepted as a proper basis for a particular social group.

    If a judge finds a particular social group on that basis, he should be removed and I suspect that Sessions intends to make sure that that happens.

    But that doesn't in any way mean that gang violence can't be the basis for a particular social group. It means that resistance to gang violence in itself is not sufficient to define a particular social group.

    Sessions is just insisting that judges apply board precedent when they decide whether a particular social group is acceptable for asylum purposes.


    Nolan Rappaport
    Updated 06-17-2018 at 05:29 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    I will not comment further about domestic violence, because, as I have made clear above, that is not the main problem that I have with Sessions' decision.

    I also agree with Nolan that the gang violence language in Sessions' decision seems to have been added as an aside, or as dictum, as we lawyers would say, since that issue was not involved in the case which Sessions was ruling on. Therefore, in theory, an IJ hearing a gang violence based asylum case, would be free to make a decision on that issue based on existing law as he or she interprets it without paying the slightest attention to Sessions' above ruling.

    How long would such a hypothetical IJ expect to keep his or her job?

    IJ's are the employees of the Attorney General. If I am not mistaken, they can be removed at any time, if the AG is not satisfied with their performance.

    In the above case, Sessions has determined (at the bottom of page 335):

    "For example, groups comprising persons who are 'resistant to gang violence' and susceptible to gang violence on that basis 'are too diffuse to be recognized as a particular social group' [citations omitted]...

    Victims of gang violence often come from all segments of society, and they possess no distinguishing trait that would identify them as members of such a group."

    Is Nolan saying that IJ's are still free to ignore the above language and to follow different precedents or decisions opposed to Sessions' views on gang violence as a basis for asylum if they see fit?

    Would not such an IJ be subject to removal for insubordination?

    And where does this leave the BIA? How much freedom will it have to ignore the AG's determination, even if it is only dictum? Is this something that the BIA often does?

    I am asking Nolan, because I don't claim to know the answer myself.

    And when Donald Trump and Jeff Sessions talk about MS-13 violence in the US, they do not seem to have any problem in identifying its victims or potential victims as a distinct group - one made up mainly of young white women threatened by MS-13 "animals" according to the president.

    If white gang victims or potential victims in the US are in acute danger from and need US government protection and "justice" - o use Sessions' word in one of his speeches on this topic, why are darker-skinned, Hispanic, victims or potential victims of THESE SAME GANGS in Central America not entitled to "justice" and the protection of our laws also when they arrive at our border seeking it?

    If Nolan has an answer to this question, which is about gang violence only, not domestic violence, I would look forward to seeing and learning from his response.

    Roger Algase
    Attorney at Law
    Updated 06-17-2018 at 05:41 AM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    On the issue of domestic violence as a basis for political asylum, I have not said anything above that would comment on or disagree with that part of either Sessions' decision or with Nolan's article. Looking at women abused by their spouses as a distinct social group is quite a stretch, it would seem to most people.

    At the same time, we do have an immigration law in the US that protects all spousal abuse victims, both men and women, known as VAWA (Victims of Violence Against Women Act) and actually enables members of this group to obtain green cards if the abusive spouse is a US citizen.

    Is this not a "social group" for immigration purposes?

    With regard to gang violence victims, as I have pointed out previously, Sessions has stated that "justice" for US gang violence victims is a top administration priority.

    http://newyork.cbslocal.com/2017/04/...-island-ms-13/

    But when the victims are brown Central Americans instead of (mainly) white US citizens, Sessions' has now decided that Central American gang violence victims are not a distinct social group entitled to the protection of US asylum laws (in a case where, as Nolan accurately points out, gang violence was not even an issue!) and has made this ruling binding henceforth on all Immigration Judges in America.

    What kind of justice is that?

    Roger Algase
    Attorney at Law
    If Roger thinks a particular social group for domestic violence victims can be based on provisions in VAWA, he should support his opinion with an analysis of Board precedent on particular social groups. Just saying it isn't helpful.

    As for gang violence, as I said in my article and again in my previous comment, Sessions didn't shut the door on that claim. Judges can still find a particular social group on that basis if they do what Roger didn't do with his VAWA comment, explain how the claim at issue meets the definition of particular social group in Board precedent.

    Nolan Rappaport
    Updated 06-16-2018 at 09:40 AM by ImmigrationLawBlogs
  8. ImmigrationLawBlogs's Avatar
    On the issue of domestic violence as a basis for political asylum, I have not said anything above that would comment on or disagree with that part of either Sessions' decision or with Nolan's article. Looking at women abused by their spouses as a distinct social group is quite a stretch, it would seem to most people.

    At the same time, we do have an immigration law in the US that protects all spousal abuse victims, both men and women, known as VAWA (Victims of Violence Against Women Act) and actually enables members of this group to obtain green cards if the abusive spouse is a US citizen.

    Is this not a "social group" for immigration purposes?

    With regard to gang violence victims, as I have pointed out previously, Sessions has stated that "justice" for US gang violence victims is a top administration priority.

    http://newyork.cbslocal.com/2017/04/...-island-ms-13/

    But when the victims are brown Central Americans instead of (mainly) white US citizens, Sessions' has now decided that Central American gang violence victims are not a distinct social group entitled to the protection of US asylum laws (in a case where, as Nolan accurately points out, gang violence was not even an issue!) and has made this ruling binding henceforth on all Immigration Judges in America.

    What kind of justice is that?

    Roger Algase
    Attorney at Law
    Updated 06-16-2018 at 02:31 AM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Without any doubt, Nolan's background in asylum law is far, far stronger than mine, because except for a very few isolated cases many years ago, I have never practiced in this area of immigration law.

    This is why I would respectfully and sincerely, welcome the chance to learn Nolan's views on Sessions' decision relating to gang violence, not just domestic violence, if indeed, Nolan does mention or discuss the gang violence issue anywhere in his above article.

    I have read Nolan's article through carefully five or six times, and I am unable to find a single reference to the issue of gang violence as a basis for claiming asylum in his article, even though this was, clearly and undeniably, also a key part of AG Sessions' above mentioned decision.

    Roger Algase
    Attorney at Law


    Sessions mentioned gang violence but it was not an issue in the case he was reviewing.

    The point of his decision was that the Board precedent recognizing victims of domestic violence as a particular social group based its legal conclusion on DHS concessions instead of on an application of Board precedent to the facts of the case.

    He doesn't think victims of domestic violence can be the basis for a particular social group and he explains why. Nevertheless, he left the door open for a future case to find a particular social group on that basis ---

    BUT IT WILL HAVE TO BE BASED ON AN APPLICATION OF BOARD PRECEDENT TO THE FACTS OF THE CASE.

    And he leaves the door is open for finding a particular social group made up of victims of gang violence too, but he doesn't expect that to work either. Neither do I.

    I had lunch with a retired immigration judge today who said he had a lot of domestic violence-based persecution claims and was never able to believe that the violent spouse was acting on account of the victims membership in a particular social group.

    Frankly, the idea is absurd.

    Also, I want to point out that Roger missed the point of my article, which is that Sessions had to issue that decision because the immigration judges are not applying the law uniformly. Many of them grant most of their asylum cases, and many others deny most of them.

    Due process isn't possible under those circumstances. Applying for asylum in removal proceedings has become a crap shoot. You toss the dice and hope that you get a judge who grants most of his cases. If you get one who doesn't, you are screwed.

    Nolan Rappaport
    Updated 06-15-2018 at 10:19 PM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    Without any doubt, Nolan's background in asylum law is far, far stronger than mine, because except for a very few isolated cases many years ago, I have never practiced in this area of immigration law.

    This is why I would respectfully and sincerely, welcome the chance to learn Nolan's views on Sessions' decision relating to gang violence, not just domestic violence, if indeed, Nolan does mention or discuss the gang violence issue anywhere in his above article.

    I have read Nolan's article through carefully five or six times, and I am unable to find a single reference to the issue of gang violence as a basis for claiming asylum in his article, even though this was, clearly and undeniably, also a key part of AG Sessions' above mentioned decision.

    Roger Algase
    Attorney at Law


    Updated 06-15-2018 at 08:42 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    Sessions and Trump have both made clear that protecting victims or potential victims of gang violence in the US is of the very top priority for this administration. Both of them have singled out MS-13 victims as an easily identifiable group in numerous speeches and have tried to use this issue for political gain, even to the point of Trump's outrageous and absurd claim that Nancy Pelosi "loves" MS-13.

    But when it comes to brown, Latino, mainly women and children in Guatemala, Honduras and El Salvador who are at risk of being murdered by gangs in those countries, are they not a recognizable group for protection under our law?

    Is this not a strange double standard?

    Unless I have missed something, I do not see anything in Nolan's article that responds to the gang violence political asylum issue, which was also a critically important part of Sessions' decision.

    Roger Algase
    Attorney at Law
    Sessions' decision is 31 pages long and very complicated. I had to read it several times and I have a strong background in asylum law. Your comments indicate that you just scanned the decision, if you even looked at it.

    For that matter, your comments indicate that you didn't read my article either.

    Nolan Rappaport
  12. ImmigrationLawBlogs's Avatar
    Sessions and Trump have both made clear that protecting victims or potential victims of gang violence in the US is of the very top priority for this administration. Both of them have singled out MS-13 victims as an easily identifiable group in numerous speeches and have tried to use this issue for political gain, even to the point of Trump's outrageous and absurd claim that Nancy Pelosi "loves" MS-13.

    But when it comes to brown, Latino, mainly women and children in Guatemala, Honduras and El Salvador who are at risk of being murdered by gangs in those countries, are they not a recognizable group for protection under our law?

    Is this not a strange double standard?

    Unless I have missed something, I do not see anything in Nolan's article that responds to the gang violence political asylum issue, which was also a critically important part of Sessions' decision.

    Roger Algase
    Attorney at Law
    Updated 06-15-2018 at 11:49 AM by ImmigrationLawBlogs
  13. ImmigrationLawBlogs's Avatar
    I am looking forward to reading and learning from Nolan's analysis of Sessions' decision, and I agree with Nolan to the extent that Sessions' explanation of his reasons for overturning the BIA's decision on the issue of what constitutes a particular social group for asylum purposes is well worth looking into in more detail, both as a matter of legal analysis and because of the huge effect that the decision likely to have on thousands of men, women and children who are trying to escape from the same horrendous gang violence in Central America that Trump and Sessions have promised to eliminate in the US in order to protect potential victims here.

    Roger Algase
    Attorney at Law
    Updated 06-13-2018 at 05:51 AM by ImmigrationLawBlogs
  14. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I do not dispute Nolan's highly respected knowledge and unquestioned expertise in asylum law in general. But, for the reasons I have explained above, and again with all due respect to his expertise in this area, he is missing the point based on my reading of Sessions' decision which Nolan does not appear to dispute. I repeat: the fact that Central American gangs are non-state actors was NOT a reason for Sessions' above decision.

    If Nolan thinks it should have been, and I am not clear about his views in this point, maybe he should have that argument with the Attorney General. I will stay out of the way in that event.

    Without doubt, the issue of what constitutes a particular social group in asylum law is a highly complex and contentious issue, with decisions going in many different directions in the past, as Sessions himself points out in his decision. Again, with the greatest respect to Nolan, he may possibly be making this issue seem far more simple than it really is, in his comments above.

    Neither Sessions nor Trump has had any problem identifying American victims of MS-13 gang violence as a distinct social group, when they can so so for the purpose of demonizing all Hispanic immigrants as criminals.

    But when it comes to protecting thousands of vulnerable Central American women and children from gang violence in their countries which is just as horrible as MS-13 is in the US, then, suddenly it turns out - according to Sessions - that they are not a distinct social group entitled to any protection under US law.

    As I have stated above, there is only one word for that - hypocrisy- which reeks to high heaven.

    Sorry if I am being less than polite about Sessions' decision on this issue.

    Roger Algase
    Attorney at Law

    I repeat: I can't teach Roger asylum law in brief comments. The subject is far too complicated. He can get a good introduction to the subject by reading the CRS memo on asylum law. https://fas.org/sgp/crs/homesec/R41753.pdf

    Incidentally, I am working on an analysis of the decision for the Hill with only two more days to finish it. Maybe my analysis will be easier to understand than Sessions' decision.

    I don't understand why he published a complicated, 31-page decision as a guide on what the term "particular social group" means.

    It's so long that he probably didn't have time to read it himself.

    Nolan Rappaport
    Updated 06-12-2018 at 09:59 PM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    I do not dispute Nolan's highly respected knowledge and unquestioned expertise in asylum law in general. But, for the reasons I have explained above, and again with all due respect to his expertise in this area, he is missing the point based on my reading of Sessions' decision which Nolan does not appear to dispute. I repeat: the fact that Central American gangs are non-state actors was NOT a reason for Sessions' above decision.

    If Nolan thinks it should have been, and I am not clear about his views in this point, maybe he should have that argument with the Attorney General. I will stay out of the way in that event.

    Without doubt, the issue of what constitutes a particular social group in asylum law is a highly complex and contentious issue, with decisions going in many different directions in the past, as Sessions himself points out in his decision. Again, with the greatest respect to Nolan, he may possibly be making this issue seem far more simple than it really is, in his comments above.

    Neither Sessions nor Trump has had any problem identifying American victims of MS-13 gang violence as a distinct social group, when they can so so for the purpose of demonizing all Hispanic immigrants as criminals.

    But when it comes to protecting thousands of vulnerable Central American women and children from gang violence in their countries which is just as horrible as MS-13 is in the US, then, suddenly it turns out - according to Sessions - that they are not a distinct social group entitled to any protection under US law.

    As I have stated above, there is only one word for that - hypocrisy- which reeks to high heaven.

    Sorry if I am being less than polite about Sessions' decision on this issue.

    Roger Algase
    Attorney at Law
    Updated 06-12-2018 at 04:11 PM by ImmigrationLawBlogs
  16. ImmigrationLawBlogs's Avatar
    Roger says, “The rationale that Sessions used in his decision, as I read it and have quoted it, is quite clear: according to Sessions, gang victims do not qualify as a distinct and identifiable "social group"”

    That’s probably correct. I can’t think of any reason why they should be considered a particular social group….unless all groups of crime victims are going to be considered as being in particular social groups.

    Roger doesn’t seem to understand the difference between crime and persecution. If a biker gang in South Africa rapes a very attractive woman who is wearing provocative clothes at a bar and walks into a deserted alley afterwards to get her car, is that persecution?

    Roger says, “Unless, that is, they happen to be Americans victimized or threatened by MS-13 "animals" in this white majority country. With all due respect to Nolan, who is second to none in his expertise and experience with asylum and with immigration law in general, it does not take a lot of complex legal analysis to see the double standard, and the appalling hypocrisy, of Sessions and the Trump administration in this particular instance.”

    I am not going to have a discussion with Roger regarding such irrational claims.

    Roger says, “Again with the highest respect to Nolan, who mentions this issue above, I do not find anything in Sessions' decision which uses that fact that gangs are non-state actors, i.e. not part of the government, as a basis for his decision.”

    Roger needs to read the decision more carefully. Asylum offers protection from government persecution with only one exception that I can recall, which is that someone is being persecuted on one of the enumerated grounds and the gov’t is unable or unwilling to stop the persecution. But you can’t go too far with this exception. Being able to stop the crime has to be a realistic objective.

    I can't teach Roger asylum law in brief comments. If he still has questions, he should read a CRS memo on asylum law. https://fas.org/sgp/crs/homesec/R41753.pdf

    Nolan Rappaport
  17. ImmigrationLawBlogs's Avatar
    The rationale that Sessions used in his decision, as I read it and have quoted it, is quite clear: according to Sessions, gang victims do not qualify as a distinct and identifiable "social group"

    Unless, that is, they happen to be Americans victimized or threatened by MS-13 "animals" in this white majority country. With all due respect to Nolan, who is second to none in his expertise and experience with asylum and with immigration law in general, it does not take a lot of complex legal analysis to see the double standard, and the appalling hypocrisy, of Sessions and the Trump administration in this particular instance.

    Again with the highest respect to Nolan, who mentions this issue above, I do not find anything in Sessions' decision which uses that fact that gangs are non-state actors, i.e. not part of the government, as a basis for his decision.

    If I am wrong on this point, I would welcome a correction from Nolan, whose knowledge of and experience with asylum law is far greater than mine.

    Roger Algase
    Attorney at Law


    Updated 06-12-2018 at 09:53 AM by ImmigrationLawBlogs
  18. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    I will comment only on the decision dealing with the issue of gang violence as a claimed basis for seeking asylum. For now, I make no comment about the decision concerning domestic violence.

    As I read the attorney general's decision dealing with gang violence, it focuses on two possible objections to using this activity as grounds for a political asylum claim. First is that gangs are private organizations which have no connection with the government.

    The second is that victims or potential victims of gang violence do not constitute a " particular social group" for asylum purposes.

    With regard to the first issue, as I read the decision, Sessions appears to agree that inability of the government to control private criminal activity can be a legitimate ground for claiming persecution.

    If I am misreading this part of the decision, I would respectfully ask Nolan, who is a well-recognized expert on asylum law, to correct me.

    This brings us to the Sessions' second and, as I see it, main point, which he succinctly states as follows at the bottom of page 335:


    "Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would identify them as members of such a group."

    Here, in the context of the Trump administration's own statements and actions regarding victims of MS-13, we see what can only be called the appalling stench of hypocrisy.

    In numerous statements on this issue, Trump has referred to victims of MS-13 violence in the United States as a separate, easily identifiable group. He has invited the family members of such victims to the White House, included them in televised "Roundtable" discussions of MS-13 and in many rallies and other speeches designed to inflame hatred against, not only gang members, whom he calls "animals", but all Hispanic immigrants. In his now defunct VOICE program, which was official US policy, Trump referred to victims of not only gang violence, but all crimes allegedly committed by immigrants as a separate group.

    I have never seen or heard of the slightest objection to this on Sessions' part.

    If MS-13 gang members in the United States are "animals", are equally dangerous gang members in Central America not "animals" also?

    And if protecting mainly white potential victims of gang violence is a matter of top priority at the highest level of government in the US, do not victims or potential victims of equally horrible gang violence in Central America deserve protection under our laws, in this case, the asylum laws, too?

    The only possible conclusion is that there is a double standard in America regarding victims or potential victims of gang violence - protecting white American citizens as the nation's very top and urgent priority, while at the same time sending brown-skinned foreign citizens, back to their countries to become victims of the same kind of gang violence is now, as a result of Sessions' above decision, official US policy.

    This how "equal justice under the law" is now being defined in America in the "Donald Trump Era."

    I will discuss how Sessions' decision to make himself the judge in the same cases where he is also the chief litigant subverts democracy and the rule of law in America in general in my own ilw.com blog comment

    Roger Algase
    Attorney at Law
    I haven't finished reading this decision, but I have read most of it. I can see why Roger is having difficulty understanding the rationale. I think I am going to have to read it a few times.

    The problem with asylum law is that judges and board members and courts tend to stretch it to include sympathetic cases. I did that too when I was writing decisions for the Board of Immigration Appeals.

    Gang violence is a crime, and crime isn't persecution. In the pre-Obama era, crime only became persecution if the criminal's motive was to hurt the victim in some way on account of race, religion, nationality, membership in a particular social group, or political opinion.

    I can remember some of the cases I handled involving the Ton Ton Macoute in Haiti. In one, the applicant claimed that a Ton Ton Macoute stole the applicant's pig and thought the applicant was going to report the theft to the police. The applicant claimed that he had to flee Haiti or the Ton Ton Macoute was going to kill him.

    In another, the applicant bumped into a Ton Ton Macoute at a dance and impulsively yelled curses at him.

    While it was true that the local police weren't going to be able or willing to protect either applicant, their problems weren't a proper basis for a persecution claim. In the pig case, killing the applicant would have been motivated by a desire to do away with someone who could establish that the killer had committed a theft. In the other, it would have been motivated by anger over offensive remarks at a dance.

    In neither case would the Ton Ton Macoute have been killing the applicant on account of his membership in one of the enumerated categories.

    Sessions seems to be going back to that standard.

    Nolan Rappaport
    Updated 06-12-2018 at 09:13 AM by ImmigrationLawBlogs
  19. ImmigrationLawBlogs's Avatar
    Further to my above comment, here is Jeff Sessions himself, speaking in Long Island NY in April about MS-13:

    "Our motto is justice for victims..."

    Sessions then mentioned two of these American victims by name, and (by obvious implication) promised to protect future potential US victims from this gang.

    Justice and protection for victims of a vicious and dangerous Central American gang, such as MS-13 - unless those victims happen to be non-white immigrants seeking protection from that same or similar gangs under the duly enacted asylum laws of the United States of America - that is.

    See:

    https://nypost.com/2017/04/28/sessio...ing-after-you/

    Roger Algase
    Attorney at Law
    Updated 06-12-2018 at 08:03 AM by ImmigrationLawBlogs
  20. ImmigrationLawBlogs's Avatar
    I will comment only on the decision dealing with the issue of gang violence as a claimed basis for seeking asylum. For now, I make no comment about the decision concerning domestic violence.

    As I read the attorney general's decision dealing with gang violence, it focuses on two possible objections to using this activity as grounds for a political asylum claim. First is that gangs are private organizations which have no connection with the government.

    The second is that victims or potential victims of gang violence do not constitute a " particular social group" for asylum purposes.

    With regard to the first issue, as I read the decision, Sessions appears to agree that inability of the government to control private criminal activity can be a legitimate ground for claiming persecution.

    If I am misreading this part of the decision, I would respectfully ask Nolan, who is a well-recognized expert on asylum law, to correct me.

    This brings us to the Sessions' second and, as I see it, main point, which he succinctly states as follows at the bottom of page 335:


    "Victims of gang violence often come from all segments of society, and they possess no distinguishing characteristic or concrete trait that would identify them as members of such a group."

    Here, in the context of the Trump administration's own statements and actions regarding victims of MS-13, we see what can only be called the appalling stench of hypocrisy.

    In numerous statements on this issue, Trump has referred to victims of MS-13 violence in the United States as a separate, easily identifiable group. He has invited the family members of such victims to the White House, included them in televised "Roundtable" discussions of MS-13 and in many rallies and other speeches designed to inflame hatred against, not only gang members, whom he calls "animals", but all Hispanic immigrants. In his now defunct VOICE program, which was official US policy, Trump referred to victims of not only gang violence, but all crimes allegedly committed by immigrants as a separate group.

    I have never seen or heard of the slightest objection to this on Sessions' part.

    If MS-13 gang members in the United States are "animals", are equally dangerous gang members in Central America not "animals" also?

    And if protecting mainly white potential victims of gang violence is a matter of top priority at the highest level of government in the US, do not victims or potential victims of equally horrible gang violence in Central America deserve protection under our laws, in this case, the asylum laws, too?

    The only possible conclusion is that there is a double standard in America regarding victims or potential victims of gang violence - protecting white American citizens as the nation's very top and urgent priority, while at the same time sending brown-skinned foreign citizens, back to their countries to become victims of the same kind of gang violence is now, as a result of Sessions' above decision, official US policy.

    This how "equal justice under the law" is now being defined in America in the "Donald Trump Era."

    I will discuss how Sessions' decision to make himself the judge in the same cases where he is also the chief litigant subverts democracy and the rule of law in America in general in my own ilw.com blog comment

    Roger Algase
    Attorney at Law
    Updated 06-12-2018 at 07:33 AM by ImmigrationLawBlogs
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