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Findings of Credible Fear Plummet Amid Widely Disparate Outcomes by Location and Judge

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Updated 08-01-2018 at 01:47 PM by ImmigrationLawBlogs

Comments

  1. ImmigrationLawBlogs's Avatar
    I have to confess that I am more than a little puzzled by the two opening paragraphs in this article and I would appreciate it if Nolan could clarify what he means by them.

    First, Nolan states:

    "I predicted this development. This is the only way Sessions can reduce the immigration court backlog..."

    Then, in apparent explanation of what that "development" is that Nolan is referring to, he quotes from an independent (TRAC) report as follows:

    "Immigration Court outcomes in credible fear reviews (CFR) have recently undergone a dramatic change. Starting in January 2018, court findings of credible fear began to plummet. By June, 2018 only 14.7 of the CFR Immigration Court decisions found the asylum seeker had a 'credible fear.' This was just half the level that had prevailed during the last six months of 2017."

    Putting these two paragraphs together, it would appear that Nolan is holding Sessions directly responsible for the ensuring the "development" of a dramatic increase in CFR denials and resulting deportations. It would also appear that Nolan approves of this intervention by Sessions because, as Nolan writes above, that is the only way to avoid making Trump look bad through a "dismal failure" in his "enforcement program."

    I find only one problem with this analysis, and I am raising it, not in the spirit of polemics or argumentation, but in an effort to be sure that I understand Nolan's point and to be fair to Nolan.

    Is Nolan saying here that Sessions needs to ensure that Immigration Judges approve CFR applications far less often and deny them much more frequently than before in order to accomplish a political goal for preventing Trump's enforcement efforts from being a failure?

    If Nolan is in fact recommending that Sessions should take action to ensure more CFR denials and fewer approvals, isn't that equivalent to tipping the scales of justice by the Attorney General of the United States - who is sworn to defend the rule of law rather than to tell judges what results he wants in a given type of case?

    Isn't government pressure on judges to reach a predetermined result something that is done in dictatorships rather than in democratic countries?

    And if putting a political goal such as preventing Trump's "enforcement program" from being a "dismal failure" (to use Nolan's words) is more important that a just decision based on the law and facts of each case at hand in America, how can this country call itself a democracy any longer?

    Unfortunately, the idea that Sessions may be using his hands to tip the scales of justice in CFR cases comes not just from Nolan's above comments - if this is indeed what Nolan really meant to say - and I would like to give Nolan the benefit of the doubt here, if at all possible.

    Completely apart from Nolan's comment, one also gets the impression that Sessions is trying to tip the scales of justice by reading the AG's own October 12, 2017 speech to Immigration Judges at the EOIR office in Virginia. See:

    https://www.justice.gov/opa/speech/a...gration-review

    This is not the place to go into that speech in full detail, but it is impossible to avoid the conclusion that Sessions begins with the predetermined view that most, if not all, asylum applicants are fraudsters with fake claims aimed at subverting America's "sovereignty" and ability to control its own borders.

    Sessions loses no opportunity to make clear that any IJ who hears a CFR case objectively and without this kind of negative mindset, might well very soon have his or her own personal "credible fear" to deal with - fear of being fired by the Attorney General.

    One may try to excuse this travesty of everything that Americans have been taught from childhood to believe in as justice and the rule of law in a free society, because, as Trump claims , credible fear claimants are all just a bunch of "illegal aliens" anyway - with a connotation that they are somehow less than human, as is also apparent from Trump's rhetoric that immigrants from Latin America (and Africa, Asia and the Middle East) are "invading" and "infesting" America - as if they were rats or vermin.

    Admittedly, Sessions does not use such openly dehumanizing language in talking about asylum seekers with CFR cases in Immigration Court.

    But the echoes of Trump's dehumanizing rhetoric are plainly apparent in the negative and hostile language of Sessions' above speech, and as a member of the bar for over 50 years, and as someone whose first law firm job right out of law school included working for a lawyer representing Martin Luther King Jr., I cannot avoid a sense of shock in seeing the chief law enforcement officer of the US use language about immigrants that might be more appropriate to a white nationalist rally in Charlottesville, Virginia - or to one of Donald Trump's own rallies.

    Overturning the rule of law to accomplish the goals of whoever is in power is not something that can be confined to just one tribunal, even if that tribunal is under the jurisdiction of the Attorney General.

    Like a cancer, this assault on the very essence of what a legal proceeding in any tribunal anywhere is supposed to constitute can ultimately destroy our entire judicial system and our democracy.

    This is why I am respectfully asking Nolan if he can clarify his above comment and explain what he means when he writes abou

    "the only way Sessions can reduce the Immigration Court backlog".

    Roger Algase
    Attorney at Law



    Updated 07-30-2018 at 11:17 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar


    Roger asks, “Is Nolan saying here that Sessions needs to ensure that Immigration Judges approve CFR applications far less often and deny them much more frequently than before in order to accomplish a political goal for preventing Trump's enforcement efforts from being a failure?”

    Yes, but Roger is overlooking the fact that most of the persecution claims being accepted should have been rejected.


    Roger asks, “If Nolan is in fact recommending that Sessions should take action to ensure more CFR denials and fewer approvals, isn't that equivalent to tipping the scales of justice by the Attorney General of the United States - who is sworn to defend the rule of law rather than to tell judges what results he wants in a given type of case?”

    It would be if he encouraged them to deny legitimate persecution claims, but that is not what he is doing. The asylum precedent decision he just issued didn’t create new asylum law. It just overruled a badly written precedent that permitted domestic abuse to be a persecution ground. Prior to that decision, Board precedent had rejected such claims.

    It also pointed out the difficulty in basing a persecution claim on gang violence, which until fairly recently, was considered a crime, not persecution.

    Roger asks, “Isn't government pressure on judges to reach a predetermined result something that is done in dictatorships rather than in democratic countries?”

    Perhaps, but as I have just explained. That isn’t what he did. He just reinstated long-standing Board precedent.

    Roger asks, “And if putting a political goal such as preventing Trump's "enforcement program" from being a "dismal failure" (to use Nolan's words) is more important that a just decision based on the law and facts of each case at hand in America, how can this country call itself a democracy any longer?”

    This question brings me back to Roger’s lack of knowledge about asylum law. Asylum is discretionary. The US doesn’t have to ever grant asylum. Using the supreme court travel ban decision as his guide, Trump could issue an executive order suspending all asylum grants until the immigration court backlog has been eliminated. In fact, I predict that he will do that if he can’t get it under control by reigning in credible fear findings that are inconsistent with long standing board precedent.

    That doesn’t mean that he will be able to ignore credible fear determinations. Withholding of deportation and torture convention relief, which are mandatory forms of relief, would still be available, but they just bar an alien’s return to a country where persecution is more likely than not or the alien would be tortured. Asylum just requires a well-founded fear, which means something less than a fifty-fifty chance.

    All he would have to do is arrange to transfer them to a refugee camp in a country that won’t persecute or torture them.

    Roger says, “Unfortunately, the idea that Sessions may be using his hands to tip the scales of justice in CFR cases comes not just from Nolan's above comments - if this is indeed what Nolan really meant to say - and I would like to give Nolan the benefit of the doubt here, if at all possible.”

    The scales of justice were put in storage when the Obama administration made credible fear determinations that were inconsistent with long-standing board precedent.

    Roger says, “Completely apart from Nolan's comment, one also gets the impression that Sessions is trying to tip the scales of justice by reading the AG's own October 12, 2017 speech to Immigration Judges at the EOIR office in Virginia. See:

    https://www.justice.gov/opa/speech/a...gration-review

    This is not the place to go into that speech in full detail, but it is impossible to avoid the conclusion that Sessions begins with the predetermined view that most, if not all, asylum applicants are fraudsters with fake claims aimed at subverting America's "sovereignty" and ability to control its own borders.”

    That’s a stretch. But it is basically true. Most asylum seekers come here to get away from violence and crime and to establish a better life for themselves and their families. Very understandable. I won’t fault them for doing it. But those problems are not a legitimate basis for a persecution claim.

    Roger says, “Sessions loses no opportunity to make clear that any IJ who hears a CFR case objectively and without this kind of negative mindset, might well very soon have his or her own personal "credible fear" to deal with - fear of being fired by the Attorney General.’

    Absolutely, judges and board members who refuse to follow precedent will be fired.

    Roger starts getting irrational at this point, so I will stop.
  3. ImmigrationLawBlogs's Avatar
    If both Nolan, in his comments, and Sessions, in his speech, had limited themselves to the idea of directing Immigration Judges to follow certain alleged BIA precedents, that would be understandable as a matter of legal interpretation consistent with a democratic judicial system. To be sure, in his recent A-B-decision, this is what Sessions purported to do (even though he do not provide any meaningful legal discussion of analysis in that decision for his conclusion that gang violence would not normally be a basis for asylum -as opposed to domestic violence, which he did discuss in detail and provide a rationale for).

    But whether certain alleged Board precedents should be followed on certain specific claimed grounds for asylum is an issue that is far narrower and more specific than the topic of Nolan's above article, as stated in his opening words.

    As I have pointed about above, Nolan's statement strongly implies that Sessions needs to see to it at all asylum claims will have a much higher rejection rate than in the past, not just claims covered by one a particular BIA decision or decisions.

    Nolan also says that denying CFR claims in general is necessary to accomplish a political goal of reducing court backlogs in order to speed up deportations. This is very different from saying that a particular doctrine of asylum law should be modified in accordance with certain claimed BIA precedent decisions.

    In the same way, Sessions' October 2017 speech to immigration judges, at least as I read it, was not phrased in terms of upholding certain alleged BIA precedents, but was clearly an attack on asylum claimants in general as very bad people who were trying to take advantage of the system and damage America.

    How does that fit in with the general principle of US law that each case should be decided on its own merits without prejudgment?

    One does not have to be an asylum law specialist (and I am not) in order to see the difference between day and night.

    Nolan then goes on to suggest that Donald Trump has the discretionary power to deny all asylum claims, not just those covered by a given decision or set of BIA decisions, and that he may have to do so in order to speed up deportations.

    I will not comment further on that suggestion, but will leave it up to ilw.com readers to decide for themselves whether making the right to asylum under our laws dependent on the will of the chief executive is consistent with the workings of a democracy, or with some other form of government.

    Nolan also calls me "irrational" when I make reference to Trump's attacks on both legal and unauthorized immigrants and suggest that these presidential statements about (overwhelmingly non-white) immigrants could be poisoning the entire immigration system, including but not limited to deportation.

    Nolan is certainly right to use the term 'irrational", but this word properly applies to Trump's own attacks on immigrants.

    I am only referring to these attacks, which, whether Nolan likes it or not, are matters of record and are indefensible on any rational basis, such as when Trump talks about immigrants using the language of exterminators

    http://nymag.com/daily/intelligencer...mmigrants.html

    I might also remind Nolan that, in our system of government, even executive discretion over immigration, broad as it is, is subject to the rule of not being arbitrary and capricious, and I would respectfully urge him to reread a recent 10th Circuit decision, with which I am sure he is already no doubt quite familiar, blocking the deportation of an "illegal alien" whose record clearly did not put him among the "good guys"; because, in that judge's view, the executive had abused its discretion.

    The case is called Gutierrez-Brizuela v. Lynch (August 23, 2016) and the judge's name was Neil Gorsuch.

    I value Nolan's expertise and his opinions very highly and I hope he will not think that it is "irrational" of me to mention this decision, even if it supports a proposition of limits to executive power over immigration that might conflict with Nolan's own views of unlimited executive discretion over asylum.

    Roger Algase
    Attorney at Law


    Updated 07-31-2018 at 08:00 AM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    Roger says, “If both Nolan, in his comments, and Sessions, in his speech, had limited themselves to the idea of directing Immigration Judges to follow certain alleged BIA precedents, that would be understandable as a matter of legal interpretation consistent with a democratic judicial system. To be sure, in his recent A-B-decision, this is what Sessions purported to do (even though he do not provide any meaningful legal discussion of analysis in that decision for his conclusion that gang violence would not normally be a basis for asylum -as opposed to domestic violence, which he did discuss in detail and provide a rationale for).”

    Roger brought that decision into the discussion with his comments about Session. If my memory is not right on that point, something he said made me think he was referring to it.

    But he is right that Sessions didn’t justify his comment on gang violence. Nevertheless, Session’s observation that it is not normally accepted is correct. In 2014, CRS wrote a memorandum on this topic. It includes the following comment in the summary section:

    When considered by the BIA or appellate courts in light of how the INA’s definition of refugee is construed, claims to asylum based on gang-related violence frequently (although not inevitably) fail. In some cases, this is because the harm experienced or feared by the alien is seen not as persecution, but as generalized lawlessness or criminal activity. In other cases, persecution has been found to be lacking because governmental ineffectiveness in controlling the gangs is distinguished from inability or unwillingness to control them. In yet other cases, any persecution that is found is seen as lacking the requisite connection to a protected ground, and instead arising from activities “typical” to gangs, such as extortion and recruitment of new members. The particular social group articulated by the alien (e.g., former gang members, recruits) may also been seen as lacking a “common, immutable characteristic,” social visibility (now, social distinction), or particularity.


    Roger says, “But whether certain alleged Board precedents should be followed on certain specific claimed grounds for asylum is an issue that is far narrower and more specific than the topic of Nolan's above article, as stated in his opening words.”

    It’s a TRAC report, not one of my articles.

    Roger says, “As I have pointed about above, Nolan's statement strongly implies that Sessions needs to see to it at all asylum claims will have a much higher rejection rate than in the past, not just claims covered by one a particular BIA decision or decisions.”

    No, my point is that most asylum applicants fail to establish eligibility for asylum.

    Roger says, “Nolan also says that denying CFR claims in general is necessary to accomplish a political goal of reducing court backlogs in order to speed up deportations. This is very different from saying that a particular doctrine of asylum law should be modified in accordance with certain claimed BIA precedent decisions.”

    Not really. My point is that finding credible fear improperly has become a serious problem because it contributes to the immigration court backlog crisis.

    Roger says, “In the same way, Sessions' October 2017 speech to immigration judges, at least as I read it, was not phrased in terms of upholding certain alleged BIA precedents, but was clearly an attack on asylum claimants in general as very bad people who were trying to take advantage of the system and damage America.”

    Putting aside Roger’s negative spin, Sessions’ point is that most of them are making bogus claims.

    Roger asks, “How does that fit in with the general principle of US law that each case should be decided on its own merits without prejudgment?”

    In fact, Sessions makes that point in his asylum decision when he overrules the domestic violence precedent because it didn’t follow the rigorous analysis necessary for finding a legitimate persecution claim.

    Rogers says, “Nolan then goes on to suggest that Donald Trump has the discretionary power to deny all asylum claims, not just those covered by a given decision or set of BIA decisions, and that he may have to do so in order to speed up deportations.”

    Yes, that’s what I said. But it’s not something Trump is claiming. The statutory asylum language in the INA makes it a matter of discretion, not Trump. I explain this in one of my articles.

    Can Trump refuse asylum to aliens who make illegal entries? (July 12, 2018),
    http://thehill.com/opinion/immigrati...llegal-entries

    Nolan Rappaport
  5. ImmigrationLawBlogs's Avatar
    With all due respect to Nolan, an argument that the statutory language saying that the "Attorney General" may grant asylum to people meeting certain requirements gives the president or his administration uncontrolled power to deny asylum at will, or as Nolan suggests, suspend all asylum grants, is quite a stretch.

    Can Nolan point to any US court decision (I am not talking about courts in communist or fascist countries here - of course, they would go along with whatever the Leader wants) which has upheld this kind of totalitarian power?

    Granted, Judge Brett Kavanaugh might very well uphold such power, based on reports of decisions and writings which would indicate that he views the president as someone with the effective power of a dictator, totally above the law.

    This is why his confirmation to the US Supreme Court could prove to be a disaster, not only for immigrants, but for our democracy. It is frightening to read reports of plans to move ahead with his confirmation hearings on a "business as usual " basis, as if nothing exceptional were at stake.

    With this cheerful thought, I will close my ilw.com comments until the beginning of September and wish all ilw.com readers a good month of August.

    Roger Algase
    Attorney at Law
    Updated 07-31-2018 at 08:11 PM by ImmigrationLawBlogs
  6. ImmigrationLawBlogs's Avatar
    I am not going to waste any more time trying to educate Roger. If he wants to understand why "may" means that granting relief is discretionary, he can do some reading on how that term has been interpreted by the courts. It wouldn't hurt if he read the provisions on withholding and on Torture Convention relief too so he can see examples of the language used for mandatory grants of relief.

    He also should read the Supreme Court's travel ban decision's interpretation of the president's power to keep aliens out of the country pursuant to section 212(f) of the Act.

    Nolan Rappaport
    Updated 08-01-2018 at 01:48 PM by ImmigrationLawBlogs
  7. ImmigrationLawBlogs's Avatar
    I cannot argue with Nolan's point about the broad power given the president to exclude immigrants, even when doing so violates the freedom of religion of US citizens, in the Supreme Court's 5-4 decision upholding the latest version of Trump's Muslim ban. That decision could be the beginning of the end of democracy in America as we know it.

    Some of Trump's avowedly white nationalist supporters (and I am not by any means implying that everyone who supports or defends Trump is a white nationalist or white supremacist) may no doubt pleased to see the president being granted more and more power to keep legal immigrants from entering the United States because they have the "wrong" color, religion or national origin - just our laws provided for 40 years beginning in 1924.

    But authoritarian power to ban, exclude or expel unpopular minorities never confines itself to those groups for very long.

    If any US president is given the power of an emperor to ban unpopular immigrants for any reason he (or she) chooses (as the Roman emperor Tiberius expelled the Jews from that city in A.D. 19), merely by using the magic words "national security" to paper over obvious racial or religious hatred, as in the Muslim ban case, it is only a matter of time before opponents of that same president will start to disappear in the middle of the night, as is the norm in Vladimir Putin's Russia.

    If and when that happens, independent historians (assuming there are any left) could well look back on the Supreme Court's Muslim ban decision as the tipping point where it all began.

    Roger Algase
    Attorney at Law
    Updated 08-06-2018 at 11:44 AM by ImmigrationLawBlogs
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