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Blog Comments

  1. ImmigrationLawBlogs's Avatar
    Regardless of what one thinks of Martin Niemoeller's famous poem, this is an excellent article by Jason Dzubow.

    Taking away basic rights from unpopular or targeted groups of people is the way despots seize power in any country.

    Depriving the Jews of basic citizenship rights, which was one of the first acts of persecution in Hitler's Germany, ultimately led to the mass murder of the Holocaust.

    Trump is not Hitler - he only wants to throw brown skinned immigrants out and shut our gates against them, not to exterminate them, but Niemoeller's poem is still apposite.

    Trump is using fear. prejudice and hatred against targeted immigrant groups as a stepping stone to absolute power and extinguishing the basic rights of all Americans, not just brown immigrants. To that extent, the comparison with Hitler is entirely justified.

    Roger Algase
    Attorney at Law
    Updated 07-03-2018 at 08:25 AM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar

    I don't see Session's disposition of A-R-C-G the way you do. If his description of that decision is accurate, the Board members who decided it should be demoted to file clerks.

    He says:

    Later that year, the Board decided A-R-C-G-, which recognized “married women in Guatemala who are unable to leave their relationship” as a particular social group—without performing the rigorous analysis required by the Board’s precedents. 26 I&N Dec. at 389; see id. at 390–95. Instead, the Board accepted the concessions by the Department of Homeland Security (“DHS”) that the respondent suffered harm rising to the level of past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution. Id. at 395.

    I do not believe A-R-C-G- correctly applied the Board’s precedents, and I now overrule it. The opinion has caused confusion because it recognized an expansive new category of particular social groups based on private violence. Since that decision, the Board, immigration judges, and asylum officers have relied upon it as an affirmative statement of law, even though the decision assumed its conclusion and did not perform the necessary legal and factual analysis. When confronted with asylum cases based on purported membership in a particular social group, the Board, immigration judges, and asylum officers must analyze the requirements as set forth in this opinion, which restates and where appropriate, elaborates upon, the requirements set forth in M-E-V-G and W-G-R-.

    Nolan Rappaport

  3. ImmigrationLawBlogs's Avatar
    With the highest respect to Jason Dzubow, who has already, i am quite sure, forgotten more about asylum law than I will ever be able to learn (since I do not practice in the asylum field and have been involved in only a very few of these cases in my 40-year career as an immigration lawyer) as the old saying goes, I do not read the AG's decision on gang violence as a basis for asylum as being quite as harmless as Jason appears to believe.

    Sessions says point blank in that decision that being a victim of gang violence does not put someone in a "particular social group" for asylum law purposes.

    As I understand it, this means that no matter how much a given applicant may have suffered from gang violence or have reason to fear it, this entire claim is now off the table as a basis for asylum.

    Won't this have a devastating effect hundreds, or thousands, of people who are already face the the prospect of being treated like "animals" (as Trump calls MS-13 members, and by immigration all Hispanic immigrants) by Sessions' cruel policy of separating families seeking asylum at the border?

    Isn't Sessions telling them that they now have no chance be being approved for asylum, based upon his sole diktat, and that all the suffering and hardship they have gone through to come to the US and file their claims has been in vain (unless a Circuit Court overrules this heartless, cruel and, as I explain in my own comment, hypocritical decision)?

    See my own June 12 comment on this decision.

    Roger Algase
    Attorney at Law
    Updated 06-13-2018 at 05:27 AM by ImmigrationLawBlogs
  4. JDzubow's Avatar
    Hi Nolan - I think it is possible to be concerned about the gang threat without referring to gang members as animals. One has nothing to do with the other. I am concerned about the gang threat - and as I mentioned, I have had numerous clients harmed by the gang. I am also concerned when the president uses the same type of language as used by mass murderers. It is possible to take a very strong stand against gangs while at the same time not indiscriminately labeling and dehumanizing people. Take care, Jason
  5. ImmigrationLawBlogs's Avatar
    Jason, you might find this study interesting.

    Can Elites Shape Public Attitudes Toward Immigrants?: Evidence from the 2016 US Presidential Election

    René D Flores

    Social Forces, Volume 96, Issue 4, 1 June 2018, Pages 1649–1690,

    27 April 2018

    Article history


    It is well known that political elites can shape public attitudes toward policies and values. Less is known, however, about whether elites can also influence public perceptions of social groups they praise or denounce. I test this by analyzing the attitudinal effects of Donald Trump’s 2016 presidential campaign announcement speech, in which he referred to Mexican immigrants as “rapists” and “criminals.” First, to provide causal estimates, I analyze survey data using a counterfactual approach. I find evidence that Trump’s statements negatively affected public opinion toward immigrants particularly among groups with restrictionist tendencies. Second, using a panel survey experiment, I corroborate this causal relationship but find that these effects are short-lived. This explains why restrictionist politicians like Trump constantly prod natives to keep their messages’ effects from dissipating. I also find that only negative messages are consequential and find no evidence that elite statements are more impactful than those from non-elites, suggesting that the power of elite rhetoric lies primarily in its capacity to reach the masses via the news media.
    Issue Section:
    Original Article

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar

    You acknowledge that gangs like MS-13 are doing terrible things, but you don't show much concern for the threat they pose. Your concern is over the threat that you think the use of politically incorrect language can have. You conclude with the observation:

    "The White House, the President of the United States, and the U.S. government are referring to human beings as "animals." And when governments negate the humanity of people--even people deemed undesirable--it puts us on a path where the only destination is death. All of us have a responsibility to bring back humanity and decency to our country. Let us resolve to do what we can before it is too late." ("and the U.S. government"? What other government officials are using that term?)

    That seems to be quite a stretch to me. In any case, even if it is a real possibility, which I strongly doubt, I am much more concerned about the threat that violent gangs pose to our country.

    Did you study the gang threat when you were working on your article? I think you might have shown more concern for that threat if you had known more about it...and for the victims of their crimes. I suspect that most of the victims are immigrants. Try reading the FBI's Gang Report.

    It is available at

    Nolan Rappaport
    Updated 05-23-2018 at 10:33 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    Thank you for this excellent comment, Jason. Whether our field is asylum, removal or skilled worker visas, as in most my work, every lawyer, every immigrant and every American should share the utmost concern about Trump's reversion to the "animals", "vermin" mentality toward immigrants that characterized the Nazi genocide of the Jews and other extermination campaigns in both historical and modern times.

    I say this despite the fact that Trump is obviously ont anti-Jewish and certainly does not support genocide or mass murder of anyone. But his attempt to demonize any class of immigrants as criminals who are less than human can lead to the most dangerous consequences.

    This is the language of despots, not democrats.

    And, even more horrifyingly, Trump continued his demonizing and dehumanization of Latino and other darker skinned immigrants in a "Roundtable" with a group of sycophantic federal and local low enforcement officials who fawned over him for his "great leadership" in attacking MS-13, which everyone knows is only a metaphor for all Latino immigrants.

    My comments on this latest exercise in authoritarian-style hate mongering are at:

    Roger Algase
    Attorney at Law
    Updated 05-23-2018 at 07:07 PM by ImmigrationLawBlogs
  8. JDzubow's Avatar
    Thank you for the comments - My impression is that the more experienced IJs and Asylum Officers rely less on the reports than their less experienced colleagues. However, at least in my local asylum office, there is a lot of turn-over, and so the majority of AOs are new, and I think they do pay attention to the DOS reports. For lawyers like me, we know to submit more specific country-condition evidence to help overcome the reports when necessary. But for pro se applicants, they are much less likely to supplement the record, and so the DOS reports become more important. My larger concern here is the blatant dishonest of the reports. If you want to make a human rights report, make a human rights report; don't Bowdlerize the reports to try to present an obviously false impression of country conditions. Take care, Jason
  9. ImmigrationLawBlogs's Avatar
    I do not practice in the asylum law area and I cannot claim to have even a small fraction of Nolan's experience or expertise in this field, having only handled a very few such cases many years ago.

    But with regard to Nolan's above suggestion that immigration judges might not be necessarily paying much attention to DOS country reports, I note that in the 2006 case of In re C-C 23 I&N Dec. 899, the BIA expressly relied on a DOS country report relating to the issue of alleged forced sterilization in China as one of its grounds to refusing to accept an expert opinion which had been submitted in support of the asylum claim.

    The BIA also cited two Federal Court decisions, Wang v. BIA 437 F.3 270, 276 (2nd, Cir.2006) and Huang v. United States INS 421 F. 3rd 125 (2nd, Cir 2005) in support of the legitimacy of relying on DOS country reports to support or refute asylum claims.

    I do not know if there are more recent BIA or federal court decisions on this issue.

    Roger Algase
    Attorney at Law
    Updated 05-03-2018 at 07:42 AM by ImmigrationLawBlogs
  10. ImmigrationLawBlogs's Avatar
    Jason, I wrote decisions for the Board of Immigration Appeals for more than 20 years, a few thousand of which were asylum cases. Every case was supposed to have a state department report. It was a long time ago, but I don't recall finding the reports particularly useful.

    Are you sure that they are influencing decisions now? My guess is that the judges just refer to the reports as additional support for their decisions without paying much attention to what the reports say.

    Nolan Rappaport
  11. JDzubow's Avatar
    It's a fair question - but I think the problem is not so much whether cases are denied or granted, as whether judges are able to follow due process. Also, if judges are pushing cases along, many unrepresented aliens may not receive the time they need to have their cases properly evaluated. Such people are less likely to appeal, and those who do are at a great disadvantage before the Board.
  12. ImmigrationLawBlogs's Avatar
    Jason, why do you think it takes more time to deny and asylum application than it does to grant one? I wrote decisions for more than 1,000 asylum appeals when I was an attorney advisor at the Board of Immigration Appeals, and I can't think of any reason why that would be the case.

    For instance, many of the cases are in the ninth circuit, which used to require solid justification for adverse credibility findings and probably still does.

    It certainly will take more time to deny an application on the basis of an adverse credibility finding in that circuit. And probably in the rest as well.

    Nolan Rappaport
  13. JDzubow's Avatar
    Thank you - I certainly agree with the point that the BIA is not providing enough guidance to IJs (the Board decides about 40,000 cases per year, but only publishes about 40 decisions). I don't believe that one decision can change that. The Board needs to publish many more decisions to provide guidance to IJs in all sorts of situations. The more decisions we have, the more guidance we have. I take your point that the AG has asked for briefing, but his questions is very vague, and that makes it difficult to address the issue (whatever that may be). Also, I had not heard about any plan to replace the BIA with something else. Maybe a rose by any other name is still a rose, but they need to have some adjudicative body to decide these cases and provide guidance to IJs. I tend to favor the Article I court idea, though maybe not as strongly as others, since I think asylum is inherently political, but whatever court adjudicates these cases, I think we need much more guidance. Take care, Jason
  14. ImmigrationLawBlogs's Avatar
    Jason, I don't see this situation the way you do. I wrote decisions for the Board for 20 years, so I am very familiar with the AG's authority to set precedents for the Board. There is an office within the Department that does the analysis and writes the decision for the AG. It handles difficult policy issues of all kinds for the AG. I had a friend in that office. He got a phd in philosophy at MIT before he went to law school. Extremely bright. It's a very high level policy office. I think you will realize that when you read their decision. Which isn't to say that I expect you to agree with it.

    The AG normally doesn't use that authority. I only know of it happening when the Board is screwing up badly. I could give you examples if you are interested.

    Incidentally, I don't recall an AG requesting amicus briefs before. Sessions is going out of his way to make sure that his staff gets as much input as possible from interested parties. I mean other than the alien and the gov't attorneys who handled the case.

    If you are planning on submitting a brief, don't get caught up in the facts of the case. This isn't about that case. The case is just the vehicle that Sessions is using to clarify asylum law in an area that the Board has failed to clarify adequately.

    I don't know what Sessions intends to do in the current situation, but I can make a good guess. The immigration judges have caused a major problem with asylum cases. The results of an asylum application vary widely depending on which judge the alien draws. You probably would think it's great that many judges grant asylum in a high percentage of their cases and terrible that many deny asylum in a high percentage of their cases. But I think you will agree that this is a problem, and the Board has not done anything about it.

    The Board should be providing guidance on asylum law and making sure that the judges are applying the law properly. In fact, that's the reason for having a Board.

    I think Sessions has selected an asylum claim that the judges are not handling properly so that he can have his staff write a precedent that will provide the judges with the guidance they need to handle the cases properly. In other words, do what the Board should already have been doing with all of the asylum issues that come up frequently. If I am right Sessions will continue to certify cases for his review until the judges are applying the law correctly.

    Incidentally, the Board is not a statutory body. It was created by the AG's office with regulations. If Sessions can't get the Board to do provide the judges with the guidance they need, there's a good possibility that he will eliminate the board by promulgating new regulations to replace it with some other type of appellate body.

    I don't mean the Article One court system the judges and now the Federal Bar Association have been advocating for more than a decade. I am absolutely sure that he is not going to favor rewarding the board members or the judges with higher status and more pay as federal judges.

    Nolan Rappaport
    Updated 03-14-2018 at 10:20 PM by ImmigrationLawBlogs
  15. ImmigrationLawBlogs's Avatar
    I wonder if the judges know that their work is reviewed by staff level attorneys at the Board of Immigration Appeals who have been evaluated largely on the basis of productivity for many decades now.

    Nolan Rappaport
  16. JDzubow's Avatar
    My dear Noah, your ignorance of my motivations are matched only by your ignorance of our immigration laws.
  17. JDzubow's Avatar
    It's an interesting questions - maybe it could be used to curtail an LPR's right to free speech. I dare say, you and I both may have said things that could be deemed detrimental to US foreign policy, at least according to some people's interpretation...
  18. ImmigrationLawBlogs's Avatar
    Any suggestions on how answer question 47 on the I-485 form, which asks whether the applicant intends to do anything that would be detrimental to US foreign policy? Of course our own president would never dream of doing something horrible like that, such as insulting or offending a US ally - so, of course he would have no problem with that question if he were an immigrant applying for a green card!

    However, at a recent telephonic USCIS public engagement session I asked a USCIS representative if any guidance on what this question means had been issued to the agency's adjudication officers.

    The answer was that no such guidance had yet been issued.

    Roger Algase
    Attorney at Law
  19. JDzubow's Avatar
    Judging by your comment, the US already has plenty of uneducated, irresponsible clowns. Ironic, isn't it?
  20. ImmigrationLawBlogs's Avatar
    Where is the the logical connection? They are here, and, according to statistics, the people whom immigration opponents like to call, pejoratively, "illegal aliens", are more law abiding than Americans.

    The fact that illegal Mexican and other immigrants may be less dangerous to society and public safety by committing fewer crimes than American citizens, does not give the illegal immigrants any right to be present in the United States.

    But it does mean that while they are here, American society is less at risk of criminal activity from that group than from native born Americans.

    Roger Algase
    Attorney at Law
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