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Lory D. Rosenberg on Appeal Matters


  1. The Harm That Confirmation of Jeff Sessions as Attorney General Can Do to Immigration Law and Due Process.

    Claiming a "cycle of amnesty" as justification for opposing all immigration reform ever proposed in Congress during his tenure, including the Dream Act, nominee Jeff Sessions responded to Senator Dick Durbin that by electing Trump as President, "the people have spoken."

    Sessions argued in his confirmation hearing on January 10, 2017, that we should "fix this system" by passing immigration reform in Congress - reform that he opposed consistently while serving as a Senator. He refused to acknowledge the importance of protecting the status of those protected currently by DACA, President Obama's executive order, and gave no guarantees about the fate of these individuals once Trump assumes the Presidency or during any extended period while reform legislation would be pending.

    Sessions' alarming refusal to acknowledge either his past or currently objectionable attitudes and actions as a Senator and a state official is made only more dismal by the Republican apologists on the Senate Judiciary Committee, who are attempting to paint Sessions' history as irrelevant or nothing more than one reflecting permissibly different views on policy.

    If (when) he is confirmed as Attorney General, Jeff Sessions will have an exclusive level of authority over the course of immigration law and policy, as well as its impact on those subject to the immigration laws. This power will manifest in 2 principal ways:

    • in hiring and removing Immigration Judges and Board Members on the Board of Immigration Appeals
    • in certifying and deciding immigration decisions made by the Board of Immigration Appeals

    The Attorney General, as head of the Department of Justice (DOJ) in which the Executive Office of Immigration Review (EOIR) is housed, selects and appoints all of the individual Immigration Judges (IJ) and the members of the Board of Immigration Appeals (BIA). The situation of Immigration Judges and appellate Board Members within an Executive Branch agency such as the DOJ presents an inherent institutional tension, even apart from the ideological or political leanings of the individual in the Attorney General position.

    A.G. Control Over Immigration Judge and Board Member Hiring

    Indeed, as the BIA is a creature of regulation and not of statute, the members of the BIA serve "at the pleasure" of the Attorney General. This unfettered authority has been exercised abusively in the all too recent past, when former Attorney General John Ashcroft removed several BIA members from their positions in 2002-2003, reportedly because they were considered "too liberal" in exercising their responsibilities of impartially and independently deciding appeals from removal decisions. 1/

    The President of the National Association of Immigration Judges, Hon. Dana Marks, has observed that, "The current court structure is marked by the absence of traditional checks and balances, a concept fundamental to the separation of powers doctrine. This structural flaw is readily apparent to lawyers, scholars and jurists. At present, the Attorney General, our nation’s chief prosecutor in terrorism cases, acts as the boss of the judges who decide whether an accused non-citizen should be removed from the United States." 2/

    Moreover, EOIR continues to be subject to criticism for the apparently preferential treatment given in hiring IJ applicants employed by the federal government to the exclusion of a fair representation of IJ candidates from the non-profit and private sector. The population of the IJ corps by persons who have served primarily as prosecutors of immigrants and refugees, with little or no exposure to the representation of and advocacy for these persons, tends to perpetuate a culture in favor of enforcement objectives no matter what the equities or how well-intentioned an IJ may be.

    A.G. Power To Certify and Review BIA Decisions

    Furthermore, the Attorney General has certification authority over all appellate decisions by the BIA -- authority to declare precedent that is reviewable only by the federal circuit courts of appeal.3/ The decision of the A.G. upon certification is binding on all lower bodies, and the impact of this authority is often disruptive, having unnecessarily adverse consequences on litigants and delaying hearings and the issuance of individual decisions nationwide. Although it is possible that a decision by the A.G. on certification can have a beneficial impact, the all-too-common prosecutorial, enforcement-oriented bent of many Attorneys General often results in undesirable, misguided, and even legally erroneous precedent.

    An example of this disruption is the case of Matter of Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), in which former A.G. Michael B. Mukasey reversed upon certification a decision made by the BIA concerning the construction of section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (INA). The A.G. ruled that IJs were permitted to inquire into the conduct of a respondent if it was not possible to determine that a conviction was for a crime involving moral turpitude (CIMT) under either the categorical or modified categorical approach.

    As a result, for the past 8 years, IJs and the BIA were bound by this A.G. precedent. Countless respondents in removal proceedings were found to be deportable or ineligible for relief from removal on the basis that a conviction in their records amounted to a CIMT due to consideration of factors beyond the elements of the crime as defined in the criminal statute.

    Following 7 years of litigation and the involvement of numerous federal circuit courts of appeal, the Mukasey approach was rejected by A.G. Eric H. Holder Jr. See Matter of Silva-Trevino (“Silva-Trevino II”), 26 I&N Dec. 550 (A.G. 2015)(vacating Matter of Silva-Trevino (“Silva-Trevino I”), 24 I. & N. Dec. 687 (A.G. 2008) and remanding the record to the BIA for a new decision).
    Too late for some, this odyssey resulted in a 2016 decision in which the BIA declared a uniform standard for the proper construction and application of the INA -- one that did not involve an inquiry into what the defendant had done -- consistent with the categorical approach as repeatedly articulated and affirmed by the U.S. Supreme Court. See Matter of Silva-Trevino, 26 I&N Dec. 826 (BIA 2016).

    Placing the power in the Attorney General to appoint the Board Members on the BIA and the IJs, and to review BIA decisions on certification, has the potential for harm that goes well beyond the implicit bias that accompanies all decision making. Simply stated, the policy making functions of an Executive Branch agency such as the DOJ simply do not facilitate the impartial decision making expected of a judicial body. This situation only is exacerbated when an Attorney General who has a racially biased history and a documented anti-immigrant agenda is confirmed.


    1. See
    Peter J. Levinson, The Façade of QuasiJudicialIndependence in Immigration Appellate Adjudications 15 (2004) (conference paper delivered at the 2004 Annual Meeting of the American Political Science Association), 9 Bender’s Immigr. Bull. 1154 (Oct. 1, 2004). The existence of ideological bias also is established by the testimony of former government attorney and Republican staffer Monica Goodling before the Senate Judiciary Committee on May 23, 2007, admitting that political considerations influenced the hiringdecisions for the career position of Immigration Judge. See e.g., Susan Crabtree, Goodling Asked DoJ Applicants PoliticalQuestions,, May, 23, 2007; Sandra Hernandez & Lawrence Hurley, Goodling Weighed Politics inRecommendations, Daily J., May 24, 2007.

    Hon. Dana Leigh Marks, 13 Benders Immigration Bulletin 3, "An Urgent Priority:Why Congress Should Establish an Article I Immigration Court" (January 2008).

    3. 8 CFR 1003.1(h) provides for referral to the Attorney General for review all cases (1) that are directed by the AG for referral, (2) that the BIA Chairman or a majority of the Board Members believe should be referred, or (3) that the Secretary of DHS or specific DHS officials in concurrence with the AG, believe should be referred for review.

    Updated 01-13-2017 at 12:34 PM by Lrosenberg

  2. Order in the Playpen

    I’m not going to mince words. According to the Washington Post, assistant chief immigration judge Jack H. Weil offered testimony recently, contending that there must be a case-by-case basis determination of competency, even for 3- and 4-year-olds, despite the fact that “[i]n all of our policies, the overlying concern is due process.” Reportedly, Judge Weil claimed that, although it takes patience, “I have trained 3-year-olds and 4-year-olds in immigration law.” See

    I don’t doubt that such statements may not “present an accurate assessment of my views on this topic,” as Judge Weil reportedly protested in an email to the Washington Post. Id. Nevertheless, there is no claim made that these ludicrous statements were not offered as part of Judge Weil’s deposition testimony on behalf of the EOIR. It should be plain that there is no context in which such statements could be viewed as rational. Id.

    What is particularly incomprehensible about this deposition testimony from Judge Weil is that this very same judge has dedicated a considerable amount of his time and energy over the past 4 or 5 years shepherding through EOIR a nationwide plan to provide enhanced procedural protections to certain respondents who lack competency to represent themselves. If anyone should be sensitive to the complexity of removal proceedings, what is at stake in such proceedings, and the express need for competency to understand and meaningfully participate in those proceedings, it is Judge Weil.

    Indeed, on April 22, 2013, the Office of the Chief Immigration Judge, in which Judge Weil serves, announced a “Nationwide Policy to Provide Enhanced Procedural Protections to Unrepresented Detained Aliens with Serious Mental Disorders or Conditions.” This policy, the outcome of a project on which Judge Weil worked personally, makes a qualified legal representative available in removal and custody redetermination proceedings if it is determined that a respondent with a serious mental disorder or condition is detained, unrepresented, and incompetent to represent him or herself. Phase 1 of the policy's implementation began on August 15, 2013.

    Recognition of the complexity of immigration proceedings and the requirements of fundamental fairness and due process in relation to the competency of the respondent was expressly addressed by the Board of Immigration Appeals in 2011. In Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011), the Board held that to be competent to participate in an immigration proceeding, an individual must have a rational and factual understanding of the nature and object of the proceeding and a reasonable opportunity to exercise the core rights and privileges afforded by law. Id. at 479.

    The core rights and privileges to which the Board refers, as addressed in Phase I of the EOIR’s Plan to Provide Enhanced Procedural Protections to Unrepresented Detained Respondents with Mental Disorders (“Plan”), include,

    1. A rational and factual understanding of:
    a. the nature and object of the proceeding;
    b. the privilege of representation, including but not limited to, the ability to
    consult with a representative if one is present;
    c. the right to present, examine, and object to evidence;
    d. the right to cross-examine witnesses; and
    e. the right to appeal.
    2. The reasonable ability to:
    a. make decisions about asserting and waiving rights;
    b. respond to the allegations and charges in the proceeding; and
    c. present information and respond to questions relevant to eligibility for relief.

    The Plan provides that a respondent “is incompetent to represent him or herself in a removal or custody redetermination proceeding if he or she is unable because of a mental disorder to perform any of the functions listed in the definition of competence to represent oneself.” Id. In the Plan, the term, “ ‘Mental disorder’ (including Intellectual Disability) is defined as a significant impairment of the cognitive, emotional, or behavioral functioning of a person that substantially interferes with the ability to meet the ordinary demands of living.” One might as well substitute the phrase “because of infancy or age” in place of “because of a mental disorder” language in in the Plan.

    Equally of interest is the Plan’s advisal to immigration judges that they make a judicial inquiry that begins “by explaining to the respondent the purpose and process for conducting the judicial inquiry,” which includes a description of the purpose of the proceedings, e.g., “I am an Immigration Judge. My job is to decide whether you will be allowed to stay in the United States. I am going to hold a hearing to gather information from you and the representative of the Government to help me decide whether you will be allowed to stay in the United States.”

    The suggested advisal text continues, “It is important that you understand what is happening in court. It is important that you understand what is being said about you. It is also important that you are able to tell your side of the story. To make sure that you are able to understand and tell your story, I am going to ask some questions about you and your case. I will use this information to decide whether you will need any special help in the hearing.”

    The advisal then instructs the immigration judge to ask the respondent,
    “Can you explain to me what I just said in your own words?

    I’d love to see the transcript of those responses. Is the time it takes to individually question traumatized 3 and 4 year olds really the best way for immigration judges facing a 4-year case backlog at EOIR to spend their time?

    As an attorney of over 35 years, who served as a Board Member on the Board of Immigration Appeals between 1995 and 2002, deciding over 20,000 appeals from the decisions of immigration judges, and as a former adjunct professor of law, I can say without hesitation that immigration law is extremely dense and the statute and regulations often are barely intelligible. Likewise, removal proceedings often are confusing and mystifying. To adults. To educated adults. To attorneys from other fields of practice volunteering pro bono. Too often, to some immigration attorneys regularly representing respondents in these proceedings. And even, to immigration judges.

    The brains of 3 and 4 year olds are not developed to a point where they can fathom the goings on in immigration court, or represent themselves in any way, shape or form. The brains of adults should be better developed. It is inconceivable and everyone involved in defending the deposition should know better.
  3. Syrians Fleeing the War in Syria Are “Refugees” As Defined by United States Law: Set

    Syrians Fleeing the War in Syria Are “Refugees” As Defined by United States Law: Setting the Record Straight Regarding the Refugee Definition

    In today’s climate, there is a danger of throwing the baby out with the bath water. Heightened security concerns and a sense of urgency regarding the protection of Syrian refugees have given rise to critics, writing in this publication and others, who posit that the majority of Syrians fleeing the war in Syria are not refugees (and presumptively not deserving of U.S. protection).

    Responding to the imminent arrival of 10,000 Syrian refugees, as ordered by President Obama, may tempt critics of this policy to resort to unfounded assumptions, indifference to existing procedures, and even disregard for governing law. Nevertheless, the inadequate analysis and inaccurate conclusions flowing from such assessments serve no one. We, as attorneys, have an obligation to provide accurate information to clients, to the courts, in the classroom, in publications, and in the media.

    The assertion that Syrians fleeing the war in Syria (whom this country will welcome and resettle) fall outside of the refugee definition is incorrect. This blog explains why that is the case, and clarifies the importance of accuracy and consistency in discussing the underlying law.

    The question whether Syrians fleeing the war in Syria are “really” refugees, as
    defined by U.S. law, requires us to assess their status according to established
    principles in asylum/refugee law, rather than to rely on unfounded presumptions.

    As I illustrate below, the failure to properly analyze the statutory definition of “refugee” in the context of our refugee laws today frustrates an accurate assessment of Syrians’ potential refugee status.

    To be sure, the statutory codification of the definition of “refugee” is settled and binding. It originates with the 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol (incorporating the Convention by reference) (Refugee Convention), international treaties to which we are signatory. Nevertheless, adherence to the statutory definition of “refugee” does not require a rigid, static interpretation of the qualifying statutory grounds of “race, religion, nationality, membership in a particular social group or political opinion” as they may have been understood and applied in the post- WWII era in which the Convention and Protocol were adopted.

    Indeed, when the drafters of the Refugee Convention included “membership in a particular social group,” in the text, they did so with the express awareness that the category would develop over the coming years. Similarly, as reflected consistently in the decisions of agency adjudicators and immigration judges and in controlling case law, discussed below, the concepts contained in the refugee definition have evolved over the 50 years since the adoption of the Convention and Protocol. Failure to acknowledge current interpretations is misleading.

    Two essential principles point the way towards a proper examination of the question whether Syrians fleeing the war in their country are refugees as defined in U.S. law.

    I. The first principle: An Individual Factual Adjudication Is Required

    Whether an individual is a refugee requires a factual determination that must be made on a case by case basis. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). See also Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987). In Mogharrabi, the Board of Immigration Appeals observed that the Supreme Court ruled that a more concrete definition of the term “well-founded fear of persecution” would be left to the process of case-by-case adjudication. 448.

    Ordinarily, an individual applicant is expected to establish that s/he is likely to be singled out for persecution. The regulations, however, create an exception – one that may be pertinent in Syrian cases based on religion, political opinion, or a cognizable social group. They allow for classification of similarly-situated individuals as refugees where there is a pattern or practice of persecution on account of any of the protected grounds against a group or category of persons similarly situated to the applicant. See 8 C.F.R. § 208.13(b)(2)(iii)(A). The applicant must belong to or identify with the persecuted group, so that a reasonable person in the applicant’s position would fear persecution. See 8C.F.R. § 208.13(b)(2)(iii)(B). Moreover, in the course of its ongoing adjudications, the U.S. government has identified certain factors, which are applicable to all cases, and satisfy the standards for proving individual persecution as a refugee.

    A. Critics Should Avoid Jumping to (Adverse) Conclusions

    Sweeping predictions about the ineligibility of large groups of persons of the same ethnicity or religion should be considered suspect. As German Chancellor Angela Merkel recently urged in response to conservative criticism over opening Germany to an estimated one million refugees, “it is not human masses that are coming to us, but individual human beings.” See

    Reciting the statutory language that defines the term “refugee” while insisting on the need for an individual assessment and emphasizing that the government needs to make individualized determinations based upon the facts of each case, is not productive. Furthermore, offering guesstimates as the basis for determining that the mass of Syrians in question do not fit within any of the qualifying statutory grounds, as some critics have done, does not satisfy the need for individualized determinations. Without the benefit of individual factual inquiries, such an analysis is doomed to result in unfounded conclusions.

    B. Critics Should Respect Proven Refugee Processing Protocols

    It is important to understand that there are well-established overseas refugee processing procedures in place that involve United Nations screening individuals who are overseas and referring them to U.S. government agencies. These referrals are followed by close review of individual applications, scrutiny of supporting evidence, and intensive factual questioning. See In fact, DHS-USCIS is directly responsible for overseas refugee processing, in which “[h]ighly trained USCIS officers conduct extensive interviews with each refugee applicant to learn more about the applicant's claim for refugee status and admissibility.[1]

    In addition to their extensive training on refugee law, “[o]fficers conducting interviews of Syrian applicants undergo an expanded 1-week training focusing on Syria-specific topics, including a classified intelligence briefing. During the interview, the officer develops lines of questioning to obtain information on whether the applicant has been involved in terrorist activity, criminal activity, or the persecution/torture of others. The officer will also conduct a credibility assessment on each applicant.” See

    C. Critics Should Not Disparage Refugee Resettlement Agencies

    Ignorance of the fact that DHS-USCIS is responsible for conducting the Syrian refugee interviews abroad, which is stated clearly on the USCIS website, does not excuse critics from disparaging non-governmental refugee agencies. Critics have made unsupported contentions that the staff of these resettlement agencies are inclined to consider anyone fleeing conflict a refugee, and would stretch the facts to include unqualified individuals in the refugee classifications. To the contrary, non-governmental agencies do not make refugee determinations, but provide sustenance and humanitarian assistance to those in flight and during resettlement in the U.S.

    Critics may think it unwise to accept Muslim Syrians as refugees, but they are not entitled to presume that non-governmental refugee agencies would violate the law or otherwise attempt to find eligibility where none exists. Refugee agencies are integral parts of our refugee assistance and resettlement program and they are presumed to act honestly and with integrity.

    II. The second principle: Governing Law Must Be Observed and Followed

    A meaningful analysis of the question whether certain individuals are refugees requires not only consideration of the plain terms of the statute, and the regulations, but an accurate understanding of current administrative and judicial case law interpreting the statutory language. Making judgments about the extension of protection to Syrian refugees based on U.S. standards requires substantial knowledge of the case law and the procedures used to administer refugee programs.

    The claims made by critics -- that Syrians fleeing war in Syria are not really refugees because the harm they face they cannot be classified as being motivated by race, religion, nationality membership in a particular social group or political opinion -- are erroneous and contrary to law.

    First, persecution is frequently defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” See Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000); Matter of Mogharrabi, supra. Furthermore, the Board of Immigration Appeals has ruled that aggregated incidents of discrimination, physical harm, threats, and harassment may support a finding of suffering or harm that rises to the level of persecution. See Matter of OZ and IZ, 22 I & N Dec. 23 (BIA 1998).

    Second, persecution that triggers the need for refugee protection is not antithetical to an ongoing war, as illustrated by refugee protection having been extended to individuals from El Salvador, Afghanistan, Iraq, Liberia, Sri Lanka and other countries. The grounds for refugee protection during a war are not limited to war-related persecution nor is war-related persecution excluded as a basis for refugee protection. As clarified above, refugee status is properly based on individual facts that establish the likelihood that a persecutor can become aware that a person has a status or characteristic that the persecutor finds offensive and wants to quash, and the persecutor’s inclination and ability to impose harm on the individual because of that status or characteristic. Matter of Mogharrabi, supra.

    A. Religious Persecution Constitutes a Strong Ground for Protection

    With respect to religion as a ground for persecution, both Christian and Muslin adherents appear to easily qualify as refugees. There is no basis to clam, as some have, that the involvement in the war of multiple factions, some of them Muslim sects, affords protection or obliges Syrian Muslim refugees to seek in-country protection. Any argument in favor of excluding Syrian Muslims’ from eligibility for refugee status on this basis while extending protection to Syrian Christians is not authorized in the refugee statute. Instead, our law provides that qualifying individuals who face persecutors that the government cannot or will not control are refugees.

    Plainly, in the case of Syria, the Assad government cannot or will not control the fighting, threats, danger, and commission of atrocities including murder, rape, torture, kidnappings, deprivation of food, and forced disappearances that are a daily occurrence in Syria. The conflict, which originated in a 2011 pro-democracy uprising that gave way to sectarian fighting between the Shi’a Alawite and Sunni majority factions within the Muslim community, now includes Jihadist groups such as Hezbollah, Al-Qaeda and Daesh (IS) and has devolved into a full-blown civil war and humanitarian crisis. See (BBC report). Nothing in the refugee statute requires persons experiencing or facing persecution under these circumstances to seek refuge in the country of persecution merely because they might have an affinity with one or more of the groups involved in the fighting.

    We must not distort the actual rule of internal relocation, which obligates an applicant to relocate to “another part of the applicant’s country of nationality . . . to avoid persecution, ifunder all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13 (b)(2)(ii) (emphasis added). See also Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997). Any suggestion that Syrian Muslims should look to Muslim fighters in Syria for protection, as some critics have suggested, is unfounded.

    What is more, controlling BIA precedent specifically endorses classification as a refugee on the basis of religion where the victim and the persecutor are of the same religion but at opposite ends of the religious spectrum. Matter of S-A-, supra. at 1336 (holding that a woman with liberal Muslim beliefs suffered past persecution and has a well-founded fear of future persecution by her father on account of her religious beliefs, which differ from her father’s orthodox Muslim views). This important BIA precedent addresses the viability of Syrian Muslim claims as fitting comfortably within the refugee definition. Thus, a Muslim could qualify as a refugee on the basis of religious persecution by another Muslim that the government cannot or will not control.

    B. Membership in a Particular Social Group Can Warrant Protection

    Any suggestion that membership in a particular social group cannot be a viable ground on which to grant some Syrians refugee status because a proposed group could be defined as “persons fleeing war” is spurious. There is no evidence to suggest that such a group definition has been or would be posited. In addition to religion, refugee jurisprudence presently recognizes family groups, gender–based groups, ethnic groups, and groups of LGBT persons as cognizable for refugee purposes. See e.g.,

    Furthermore, any argument that the Syrians fleeing the war in Syria have not experienced and do not face a sufficient level of persecution to qualify as refugees is unsustainable. Cf. Matter of OZ and IZ, supra. The degree of harm that Syrians are suffering or likely to suffer is not in issue.

    C. Political opinion Is a Well-founded Reason for Persecution

    Perceived or actual political allegiances, just like religious affiliations, provide a certain basis for persecution in Syria. In a vast majority of cases of persecution and torture in the present Syrian conflict, politics and religion overlap and are indistinguishable. As stated above, the popular uprising in 2011 began in opposition to the corrupt and tyrannical regime of Bashar al-Assad and some of its early leaders were Alawites, Christians, and Druze in addition to Sunnis.[2] Soon enough, the uprising was polarized and has devolved into a sectarian Shi’a Alawite versus Sunni Ba’athist religious war that was promptly engaged by the Jihadist opportunists in the region, including Hezbollah, Al-Qaeda and Daesh (IS).

    Nevertheless, some critics insist that few of those fleeing the current situation in Syria are fleeing because of political opinion. Some have objected to the classification of Syrian refugees in this category on the basis that a claim that one is fleeing because of political opinion would require an individualized determination. These naysayers opine that while there might be those who would qualify under this provision, many would not. Such unsupported contentions appear to be premised on the erroneous belief that there will be no individualized refugee determination for Syrian refugees.

    Those who deny the possibility of Syrian refugees qualifying under the refugee definition on the basis of political opinion do so because they apparently believe that such an evaluation differs from what the Obama Administration is proposing. As clarified above, however, that is precisely how the classification of Syrians fleeing the war in Syria as refugees will take place – each individual will be interviewed and considered by USCIS before a determination of refugee status is made.

    Furthermore, with regard to the speculative assumption that most Syrians will not qualify should there be an individualized determination, such a claim completely ignores the close relationship between religion and politics in Syria (and the Arab world in general). It also fails to recognize that an individual may qualify as a refugee based on imputed political opinion, which could easily result from religious affiliations or associations.

    III. Conclusion: Those Admitted as Syrian Refugees Are Refugees

    Those who are challenging the designation and admission of Syrians as refugees caution that our Constitution and laws must be observed and not circumvented each time an urgent situation arises. However, there is no evidence that this has occurred.

    There is no room for baseless claims and obfuscation. We deserve accurate and authoritative blogs and articles that provide straightforward information about Syrian refugees and the United States’ refugee process. Just as Chancellor Merkel lauded German civic efforts to welcome Syrian refugees as “the best and most convincing answer to all those who try . . . to whip up sentiment against strangers,” our response to distortion and fear-mongering about Syrian refugees must be adherence to the rule of law – as written and applied through adjudication and jurisprudence.

    [1] These officers have undergone specialized and extensive training on: Refugee law, Grounds of inadmissibility, Fraud detection and prevention, Security protocols, Interviewing techniques,
    Credibility analysis, and Country conditions research.

    [2] See generally,;;

    Copyright (c) 2015 Lory D. Rosenberg

    Updated 12-21-2015 at 08:58 PM by Lrosenberg

  4. Notes from Dilley: sharing the blog of volunteer attorney B. John Ovink

    by Lory D. Rosenberg and B. John Ovink

    Amazing and outrageous developments keep occurring as the shameful family detention debacle continues at the jail called a “family residential center” in Dilley, Texas. In the past month, we have witnessed:

    • Two CARA pro bono attorneys being ousted and banned from Dilley by ICE for advocating zealously for their clients who were granted bond by Immigration Judges and should have been released
    • Judge Gee issuing a strongly worded Order requiring ICE to stop unlawfully detaining kids and their moms, in violation of the settlement order in the Flores case.
    • Two CARA volunteer attorney securing the release of a woman was detained in Dilley with her teen-age children, despite the fact she is a United States citizen

    These events and voluminous evidence of restrictions, intimidation, and deprivations of liberty make it impossible to accept, as the Obama administration insists, that Dilley is anything other than a jail, incarcerating families who have a legal right under the U.S. statutes to seek protection in the United States. The only distinction from any other prison in the U.S. is that this one holds babies and children.

    In this cruel and unconstitutional environment, the critical role of the dedicated volunteer immigration attorneys who are working pro bono in the CARA collaboration at Dilley is underscored by these on-the-ground blogs from my friend and colleague B. John Ovink who has been witnessing the heart wrenching and intolerable conditions while working at Dilley this week. Here are some lessons from the telling excerpts from John’s blog:

    Monday, day 1: This is not a benevolent family setting but an adversarial context in which DHS Immigration Customs and Enforcement (ICE) calls the shots from an enforcement persepctive. John writes:

    . . . saw a total of 11 people today in various stages between detention, waiting for their credible fear interview (CFI), and awaiting their bond hearing. We started 11 hours ago. Dilley is about waiting, rushing and more waiting . . . if you didn't know any better it looks like a first day of kindergarten, meeting, with the parents, their 2, 3 4 and 5 year old kids running around, sleeping on laps, and generally being kids. BUT WHAT KIND OF A COUNTRY IS THIS, WHERE WE ARE KEEPING A 3 YEAR OLD KID IN A JAIL?

    Tuesday, day 2: The continuing influx of detained women and children have no one but the volunteer immigration lawyers to help navigate a tedious, unforgiving system. John writes:

    Facts first: there are currently 1425 women and children here, a net increase of 403 in last ten days. There are 7 attorneys here, and 5 support staff. And this week we have a psychoanalyst here to document PTSD and trauma.

    The first 6 women are sitting in the chairs designated as waiting area, with their children, rubbing eyes because of sleep. They look at us full of hope, because the teams of volunteers who show up here are the only hope they have of ever getting out of here. . . I’ll be in court this morning, to see if the IJ will overturn a horrible negative CFI in which the transcript of the interview with the asylum officer contains statements like: "I find it incredibly unbelievable that you say this" and "I frankly don't believe you." And that's supposed to be non-adversarial.

    I’m back from court. Thank you Judge for reversing my client's negative CFI finding. . . that was the highlight of my day. Client cried and hugged. Now we need to get ICE to issue an NTA [a Notice To Appear that allows an inmate to have a bond hearing] and get it filed with the court. They could do that today. [But] ICE keeps "losing" files, and frustrating the process, procrastinating as long as they can.

    . . . It's 6:20 [PM], I’ve been going since 7AM this morning. The [second] highlight of my day today was getting a traumatized woman to talk about her trauma, and to find a basis in her story that qualifies her to stay. She’ll have her CFI tomorrow. I hope we win. I love this place. I finally feel I'm practicing law.

    There are still 5 women waiting to be seen. I'm amazed at their ability to understand my Spanish, and the effort they make to communicate. . . . Half the people here bring in sworn statements from border agents [Customs and Border Protection- CBP] that are completely made up. For instance, [the women] all say they weren't asked if they are afraid to return to their home country, but the sworn statements all say they are not afraid. Now, if that was one, I'd have doubts. but ALL?

    And that brings me to the kids they have with them. They are mighty intelligent. As an example, I read the sworn statement supposedly made by my client's 4 year old, who (without the use of a Spanish translator), was able to tell the CBP officer what time exactly and where she came in, she knew her date of birth, she understood that it was illegal to enter the USA without proper documents, and she also came to the USA to work. And on top of that, she did not have any fear that she would be persecuted if sent back to her own country. At least she refused to sign the statement (says the stamp by CBP at the bottom). For reasons of confidentiality, I can't print this statement. but I saw it with my own eyes today.

    Wednesday, day 3: Vigilance under extremely adverse conditions is essential so that the facts of a client’s heart wrenching persecution are told, clients receive needed health care, and are timely released. John writes:

    Good morning, friends and followers on the start of day three in Dilley . . .it's 7:20 AM here and we are getting set up for the day. The first women are filing in, dressed in pink, yellow or green tee shirts. I heard yesterday two 4 year olds argue: 'my dad paid our bond before your dad so we get out!' Somehow, I don’t think that's normal behavior for 4 year olds. Of course this is a privately run prison, and our government is paying something like $400 per person per day to be housed here. . . . ICE delaying the detainees release brings a huge profit to someone, and it's paid from your taxes.

    Great start . . . My first client was continuously raped by her cousin from ages 7 - 9. Ouch. She’s been here for 10 days without anything happening, and ICE hasn’t issued any documentation to start the process. Welcome to the Dilley “family residence.” And the 2 or 3 year old hysterically wailing in the background got to me. Pushing back tears. This work is very emotional, but satisfying.

    The children have to stay with their mothers while we are interviewing them, and they talk about rape, molestation, murder, etc. NO child should be allowed to hear this. We give them a coloring book to distract them. But we’re not allowed to bring any in, and must only use “official supplies.” It’s very distracting for us and the mothers to do 2 hours prep for possibly the most important interview in their lives while their kids are here. It’s like working in a kindergarten.

    The good news is my traumatized client passed her CFI today. . . .

    A note about healthcare. Client statement: last Sunday her daughter was sick and now limps, She has had a fever since Sunday, but the doctors don’t want to see people on Sunday so they gave her water. Then Monday, she went back, waited 5 hours in hot sun to be attended to. The Dr. said she had a throat infection and they would do some tests and come back later. The Dr. later gave her penicillin. When the daughter cried, the nurse told her don't cry because we don’t give medicine to everybody, and you should feel lucky you get medication. She was given an injection was in her hip. It's been hurting for 3 days, and has not alleviated the symptoms, and now she limps.

    John notes that his week at Dilley has not been without its rewards. He has improved his Spanish, deepened his appreciation of children, and participated in one of the most satisfying experiences a lawyer can have: providing the representation and advocacy his clients need to obtain justice.

    Stay tuned for more Notes from Dilley, chronicling John’s pro bono experience at Dilley this week. In the meantime, the CARA pro bono effort needs more attorneys, paralegals and equipment to support the women and children at Dilley. You can help by:

    Contacting Maheen Taqui at AILA [], one of the CARA partners, if you want to:

    • Volunteer to go to Dilley as an attorney or paralegal
    • Donate a reliable scanner
    • Provide printer ink or another printer and more ink supplies
    • Volunteer to help the women and children with their asylum claims when they post bond and are released to various locations across the country

    In addition, John notes that the CARA team on the ground could use help from those outside the facility, who would receive the bond instructions, name of detainee, A# and the name and phone number of their sponsor. Attorneys and legal assistant would then call the sponsor, explain what is needed using sample letters of support, and make sure that they get faxed back quickly. To participate, contact Maheen Taqui at AILA [] who will connect you.

    © 2015. All rights reserved Lory D. Rosenberg IDEAS Consultation and Coaching.
  5. Shameful Admissions Call for Powerful Pro Bono Response

    I’ve noticed recently that some immigration lawyers, myself included, have become so used to having our removal and asylum seeker clients jailed for months at a time, that it’s becoming difficult to grasp the horrendous impact on an individual client of having to endure even one more day of confinement. No matter that they have not been accused or convicted of any crime and that they have no criminal background. It’s such a common situation that representing clients who are routinely deprived of their liberty for weeks, or even months and years, is almost the norm.

    We are at risk of losing our sense of justifiable outrage. Not to mention a big chunk of our humanity. And it’s sickening. We’re talking about hard working taxpaying members of our communities, innocent visitors with valid visas, parents, and spouses separated from their families. Denied their freedom, robbed of their dignity. In civil proceedings? In this country?

    Although that is bad enough, we almost take it for granted. After all, Congress provided for detention in the statute. At least some of it is constitutional.

    Reading the shameful admissions of DHS spokespeople about their treatment of the mothers and children held in the Karnes and Dilley detention centers, however, should be enough to make anyone cringe. See New York Times, “A Federal Judge and a Hunger Strike Take on the Government’s Immigrant Detention Facilities,” by Wil S. Hylton, April 10, 2015.[1] We're not that jaded.

    One senior DHS official candidly admitted that “The decision to establish family detention facilities was in large part driven by the need to create a deterrent effect.” When journalist Wil S. Hylton inquired as to the legal rationale justifying the punishment of one group of people to affect the future behavior of another group of people, none was offered.

    Thankfully, as the article describes, on February 20, 2015, Judge James E. Boasberg of the District Court for the District of Columbia, invalidated that aspect of the administration’s strategy to curb illegal immigration across the Southwest border, by issuing a preliminary injunction in the class action lawsuit filed by the American Civil Liberties Union and the University of Texas law school immigration clinic.

    The lawsuit specifically challenged the government’s contention that locking up women and babies fleeing to the United States in fear for their lives was necessary to protect national security. In his order, Judge Boasberg ruled that the conditions in which the women and children were detained was causing them irreparable harm and the detention seemed out of line with Supreme Court decisions.

    Nonetheless, that hasn’t stopped DHS. It has only forced them to drop that argument as a basis for jailing infants, children as young as 2 and 3 year old, their preteen and teenage siblings, and their mothers, who all are fleeing horrific domestic violence, targeted gang violence and retribution, and other forms of persecution in El Salvador, Guatemala and Honduras. It hasn’t stopped them from demanding bonds of $7500-15,000, far above the women’s ability to pay for their release and conspicuously over the national average of $5,000. And it hasn’t stopped DHS Director Jeh Johnson from persisting in his determination to send a clear message to Central Americans coming without documents: “You will be sent home.”

    Notably, the same statute that provides for detention of persons who are a flight risk or a danger to the community provides that a person may apply for asylum without regard to his or her status and may do so at a port of entry or land border of the United States. This includes the very southwest land border from which the DHS Director threatens to send home all comers. Even more notably, access to high quality pro bono representation has resulted in an inordinately high percentage of these individuals’ asylum claims being granted. Moreover, asylum seekers as a group are reliably compliant with the terms of release from custody while their cases are pending.

    It's important to understand that the women and children detained in these facilities and discussed in this blog all have demonstrated to U.S. government officials that they have a credible fear of persecution in their home countries. For this reason, they have not been sent back home under the "expedited removal" process used in cases where a border crosser has no "credible fear." Instead they are specifically entitled by statute to release on bond, and they are all diligently pursuing their asylum claims.

    In the first week of April, facing continued indignities, continued harm to their children, and continued deprivation of their liberty, over 70 women jailed at the Karnes detention center carried out a hunger strike. The Refugee and Immigrant Center for Education and Legal Services (RAICES) reported that the mothers were told that if they refused to eat they could be declared unfit guardians for their children because they would have reduced brain functioning, and their children would be taken away.

    According to the New York Times article, DHS shamelessly acknowledged that, “ICE has been in constant communication with the residents at the facility. This communication has included discussing the negative health effects of not eating and how the decision of parents to stop eating may affect the care of their children.” In addition, some women were removed from the general population and placed in isolation in the medical infirmary where they were held in darkness at all times except when their meals were brought to them.

    This mistreatment and manipulation is utterly disgraceful. The administration’s entire premise for detaining Central American women and children seeking protection at the border in order to deter others from coming is shameful. The ICE practice of setting bonds far higher than needed to secure the women's appearance and beyond the women’s ability to pay – as a means of keeping them detained – is shameful.

    The ongoing DHS practice of standing by as the detained children lose weight, become ill, and exhibit signs of failure to thrive is shameful. Keeping these women and children detained when they are neither a flight risk nor a danger to the community is shameful. Forcing these women and children to remain detained for more than six months, the period which the Supreme Court determined would be unconstitutional without a (reasonable) individualized determination is shameful.

    These are human beings seeking the protections that we, as a country, are bound to provide under domestic and international law. Instead of treating them humanely while they go through the process of seeking asylum, our government is demeaning them, threatening them with loss of their children, and depriving them of their freedom. This calls for a response, and indeed, the word is that the women are planning a second hunger strike. But that’s not enough.

    This calls for a powerful pro bono response. Providing pro bono representation has debunked early administration predictions that none of these women had substantive, winning asylum claims. Providing pro bono representation has allowed these women a modicum of the dignity to which they are entitled. It has insured that these women are able to present their cases in a system that they do not understand, in a language that they do not speak, in a complex process with which they cannot comply without competent, high-quality legal representation that they cannot afford. Pro bono representation has enabled them to obtain the protection we have promised in our laws.

    Your pro bono efforts are needed to counter the shameful government mistreatment and resulting miscarriage of justice described in this blog! Whether or not you have provided pro bono services before, and whether or not you have expertise in this area as an immigration lawyer, you will find collegial support as a pro bono volunteer at both the Karnes and Dilley detention facilities. What is more, you will benefit as much as the client you represent.

    The Catholic Legal Immigration Network, the American Immigration Council, the Refugee and Immigrant Center for Education and Legal Services, and the American Immigration Lawyers Association, or CARA, recently joined forces in an effort to respond to the expansion of DHS enforcement against the Central American women and children in the Karnes and Dilley detention facilities in Texas. See AILA Doc No. 14100656, Dated March 31, 2015.[2] CARA is committed to ensuring that detained children and their mothers receive competent, pro bono representation, and developing aggressive, effective advocacy and litigation strategies to end the practice of family detention.

    RAICES, the University of Texas law school immigration clinic, Akin Gump, and the Tahirih Justice Center are providing support at Karnes, and CLINIC, AILA and AIC are leading the pro bono effort in Dilley. The Dilley Pro Bono effort is employing a non-traditional week long model, requesting interested volunteers to commit to a full week on the ground (Sunday to Friday), and to arrive in San Antonio by Sunday afternoon for a mandatory on the ground orientation session. CARA currently is recruiting volunteers through September 2015.

    The detention of children and their mothers is not only inhumane, but incompatible with a fair legal process. As AILA President Leslie Holman has stated, “You can call it a 'Family Residential Center' but it is a prison…That's not what these women and children deserve."


    [2] Alert&utm_medium=Email&utm_campaign=RP%20Daily.

    Updated 04-10-2015 at 09:56 PM by Lrosenberg

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