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BIA Remands of Immigration Judge Earle Wilson Asylum Denials.

Immigration Judge Earle Wilson is a lesser known Atlanta Immigration Judge to his notorious colleagues, William Cassidy and Dan Pelletier. But he appears to be just as bad.

A sampling of BIA remands of IJ Wilson’s denials of asylum claims from 01/01/2014 to 05/26/2016 shows that Judge Wilson will always find a way to deny an asylum claim, even if it means making false findings of fact(decision 1); making nonexistent adverse credibility determinations (decision 13); setting extraordinarily short deadlines to ensure corroborating evidence cannot be  found (13); depriving represented immigrants their right to counsel (Decision 10); ordering pro se respondents removed by intentionally failing to provide them with an opportunity to apply for asylum (Decision 11 and 12; depriving unaccompanied children their right to apply for asylum with USCIS under the TVPRA (Decision 2-7); or making impossibly torturous interpretations of settled law and common sense, (decision 14.)

An illustrative example is Decision 14, where IJ Wilson denied an asylum claim based on a particular social group of “violently abused women who cannot leave the relationship without leaving their children behind” because, he reasoned, the Respondent’s ability to flee to the United States meant that she had successfully left the relationship and therefore was not a member of the proposed particular social group.

With an subtle tongue in cheek,  the BIA pointed out in that decision that “…by definition, any person  any person applying for asylum in the United States has fled the  harm that they experienced. As such, the ultimate ability to flee from harm cannot be a disqualifying factor.”

Decision date: May 5, 2016

Basis for remand: IJ made false findings of fact, among other things, “The Immigration Judge appears to have found a number of erroneous facts in his analysis when  explaining that events that were described by (redaction) in his letter, were incidents of harm claimed by respondent—which made her account inconsistent. The immigration judge may have mischaracterized the respondent’s testimony and other evidence as never claiming that the gang members harmed them for, or while, they were preaching. As there may be factual errors in the Immigration Judge’s decision…we will remand the proceeding. And,…it is also unclear whether she was given an adequate opportunity to explain the perceived inconsistencies in her evidence as is required.

2 Decision date: June  1, 2015

Basis for remand: deprived unaccompanied child right to apply for asylum before USCIS

‘On the record before us, we conclude that a remand is necessary for a determination  whether this is a case in which the USCIS would take initial jurisdiction over this respondent’s application for asylum. In this regard, further fact-finding is needed 1) whether the respondent was determined to be a UAC prior to the initial filing of her asylum application; 2) if so. Whether that status has been terminated by an “affirmative act’, within the contemplation of the USCIS memo; and 3) whether the announced position of the USCIS as set forth in the USCIS memo has been withdrawn or superseded.􀀖􀀈

3 Decision date, May 28, 2015

Basis for remand: deprived unaccompanied child right to apply for asylum before USCIS:

“In the case before us, the Immigration Judge ruled during the course of the hearing that the respondent was no longer a UAC because lillS had released him to his mother prior to the filing of his application for asylum (Tr. at 15-19). The Immigration Judge indicated that USCIS could not conclude otherwise under the circumstances presented. Accordingly, the Immigration Judge assumed jurisdiction over and adjudicated the respondent’s application for asylum. On the record before us, we conclude that a remand is warranted pending a determination by the USCIS whether it will take initial jurisdiction over this respondent’s application for asylum.”

4 October 2, 2015

Basis for remand: deprived unaccompanied child right to apply for asylum before USCIS.

On the record before us, we conclude that a remand is necessary for a determination whether this is a case in which the USCIS would take initial jurisdiction over this respondent’s application for asylum. In this regard, further fact-finding is needed regarding: (1) whether the respondent was determined to be a UAC prior to the initial filing of his asylum application; and if so (2} whether that  status has been terminated by an “affirmative act” within the contemplation of the USCIS memo; and (3} whether the announced position of the USCIS as  set forth in the USCIS memo has been withdrawn or superseded.”

5 June 19, 2015,

Basis for remand, insufficient fact finding and legal analysis, D.V. based claim,

“We find it appropriate to remand the record to the Immigration Judge for further proceedings regarding the respondents’ eligibility for asylum and withholding of removal. On remand, the Immigration Judge should make clear findings as to whether the lead respondent suffered past persecution and whether the Honduran government is unable or unwilling to protect the lead respondent from persecution on account of a protected ground resulting from domestic violence. See Matter of A-R-C-G-, 26 l&N Dec. 388 (BIA 2014). The Immigration Judge should further consider the evidence in the record regarding the effectiveness of the Honduran government’s law at protecting women from domestic violence (Exh. 4, tab A, pgs. 16-17).”

6 June 23, 2015

Basis for remand: deprived unaccompanied child right to apply for asylum before USCIS.

In the case before us, the Immigration Judge concluded that even if the there was a prior determination that the respondent was unaccompanied, he can no longer be deemed to be unaccompanied due to the fact that the respondent now currently lives with his mother (fr. at 12- 13). The Immigration Judge found that under these circumstances, the respondent’s status bas changed and a determination that the respondent is no longer unaccompanied may be made in removal proceedings (id). Accordingly, the Immigration Judge assumed jurisdiction over and adjudicated the respondent’s application for asylum. However, it is clear from the USCIS memo that the reunification of a child with a parent is not in itself determinative that UAC status is no longer in place. Further, DHS did not argue before the Immigration Judge, and has not argued before the Board in response to the respondent’s appeal, that there has been an “affirmative act” by HHS, ICE. or CBP to terminate the determination that the respondent was a UAC. Nor has the OHS explained what constitutes such an act within the contemplation of the USCIS memo or argued that the memo no longer represents the position of the Government.”

7 July 15, 2015,

Basis for remand, Id

“In the case before us, the Immigration Judge ruled that the respondent was no longer a UAC because HHShad released him to his mother prior to the tiling of his application for asylum (Tr. at 21; I.J. Denial of Motion to Continue, Oct. 29, 2014). Accordingly, the Immigration Judge assumed jurisdiction over, and adjudicated, the respondent’s application or asylum.

However, to the extent the Immigration Judge may have concluded that HHS’s release of the respondent from custody constituted a “termination” of his UAC status, we note that while the USCIS memo specifically references the HHS’s Office of Refugee Resettlement (ORR) Verification of Release Form. it solely does so as evidence that a UAC determination has been made. And, it is clear tom this memo that the reunification of a child with a parent is not in itself determinative that UAC status is no longer in place.”

8 June 29, 2015,

Basis for remand, Id

9 July 28, 2015,

Basis for remand: ij denied asylum application stating respondent failed to provide sufficient evidence to corroborate claim. IJ remanded by BIA because sister was available as corroborating witness but for security guards barring her entrance to court.

10 March 7, 2014,

Basis for remand:  Deprivation of right to counsel.

In the motion, counsel indicated she needed to obtain a copy of the respondent’s A-file. A continuance was granted for 8 days to November 14, 2013. On November 5, 2013, Ms. Wang requested a telephonic hearing, but that request was denied on November 7, 2013. On November 8, 2013, Ms. Wang asked for another continuance, indicating that she had a criminal matter scheduled for November 14, 2013. That continuance was denied on November 13, 2013, as untimely. According to the Immigration Judge’s decision, the order denying the continuance was not mailed to counsel until November 14, 2013. According to counsel, on November 14, 2013, the Immigration Judge spoke by telephone to a lawyer in Ms. Wang’s firm~ who reiterated the need for a continuance, and said Ms. Wang was appearing in a criminal trial that day, and she had not yet received the respondent’s A-file. According to counsel, she did not receive notice of the November 18, 2013, hearing.

Though the respondent continued to ask to be represented by counsel, the Immigration Judge proceeded to ask her questions concerning her claims for relief, and ultimately denied her asylum, withholding of removal, and protection under the Convention Against Torture (I.J. at 4-8; Tr. at 9-23). · On appeal, the respondent asserts that denial of the continuance resulted in a denial of her right to counsel. We agree.”

11 January 31 2014,

Basis for remand: Deprived opportunity to apply for asylum, pro se.

“The respondent, a native and citizen of El Salvador, filed a timely appeal of an Immigration Judge’s decision dated September 30, 2013. The record reflects that the respondent, who was pro se and who articulated a fear of returning to El Salvador, was not advised by the Immigration Judge of all of the forms of relief for which she might be eligible, and was not given appropriate application forms. We therefore conclude a remand is warranted. Upon remand, the Immigration Judge should consider the respondent for all forms of relief for which she appears eligible at the time.”

12x Date of decision, January 30, 2014,

Basis for remand, Id

“The respondent, a female native and citizen of El Salvador, has filed a timely appeal from an Immigration Judge’s decision dated September 24, 2013, ordering her removal from the United States. Considering the totality of the circumstances presented in t his case, we conclude that it is appropriate to remand the record to the Immigration Judge in order to provide the respondent with an explicit opportunity to file an Application for Asylum and for Withholding of Removal (Form I-589)…When the respondent indicated that she was afraid of being harmed upon her return to El Salvador, the Immigration Judge should have further inquired into the Respondent’s claimed fear, advise her that she could apply for asylum, and make the required forms for applying for such relief available to her…

13x Date of decision: April 29, 2016.

Basis for remand: First, here is why IJ denied case: First, the Immigration Judge denied asylum claim because she did not provide “reasonably corroborating evidence.” Alternatively, he denied her claim because he determined that her physical departure from the husband’s home literally meant that she could not be part of PSG of Married Guatemalan women who cannot leave their relationships, and lastly he denied claim based on, basically, fact that she did not report abuse to police, despite overwhelming country condition evidence and testimony that D.V. victms are not protected in Guatemala. The BIA found IJ clearly erred on all counts.

Additionally, the BIA noted in a footnote “As observed in the respondent’s appeal brief, the Immigration Judge gave the respondent less than 60 days to obtain and submit her evidence, notwithstanding her attorney’s explanation that she had just taken the case and that documents could not be acquired in that time.” As such, Judge Wilson effectively created a situation where it was more likely for Respondent to be unable to provide corroborating evidence.

“We first address the Immigration Judge’s conclusion that the respondent did not meet her burden of proof because she did not submit reasonably available corroborating evidence. The record establishes that the documents found to be lacking were not reasonably available.2 It is unclear how the respondent was expected to obtain a statement from her mother when neither the respondent, nor her mother, can read or write in any language (Tr. at 24, 35). The respondent’s hospital records were also not reasonably available given the inability of the respondent’s mother to easily travel to the hospital or communicate with the hospital staff, the passage of time, and the fact that the hospital did not reply at all to the requests from the respondent’s attorney (Tr. at 35-36,” 67-71). It was also not reasonable to expect a corroborating statement from the uncle of the respondent ‘s abuser (I.J. at 7). See generally, Niftaliev v. US. Atty. General, 504 F.3d 1211, 1217 (11th Cir. 2007) (providing that respondent cannot be expected to obtain corroborating evidence from the persecutor) .

The Immigration Judge’s decision focused on the fact that the respondent’s husband forced the respondent out of the home after 3 years. Because of that, the Immigration Judge concluded that the respondent was able to leave her relationship . However, the respondent’s testimony demonstrates her inability to leave her relationship even after she was forced out of the home. During this time, her husband continued to pursue her, to threaten her, to drive away other men, to physically injure her, and to make her live in fear that her child would be killed or kidnapped. Her husband asserted that the respondent was still his. The controlling and abusive conduct on the part of the respondent’s husband did not end when the respondent left the home but continued until her departure from Guatemala .

Finally, the respondent established that the government was unwilling or unable to protect her.  The respondent testified that she knew of other men who abused or even killed their wives and that police did nothing. She explained that she was advised by her own mother to put up with the mistreatment she suffered since it was believed to be part of life. Moreover, the State Department country report in evidence states that impunity for perpetrators of domestic violence in Guatemala remains very high, that rape survivors frequently did not report their crimes due to lack of confidence in the judicial system and other factors, and that few officers received training to deal with domestic violence or to assist survivors . See United States Dept. of State, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices for 2014, Guatemala, 14-16 (Exh. E).

14x March 17, 2016,

Basis for remand: Immigration Judge denied asylum claim based on an adverse credibility finding, which was actually nonexistent, as the BIA explained.

“The Immigration Judge denied the respondent’s application for relief based on an adverse credibility finding, which the respondent has challenged on appeal (I.J. at 4-5). The Immigration Judge noted that after coming to the United States, the respondent was interviewed by an asylum officer and she indicated that (ex-partner) (I beat her because she wanted to leave with their children (Exh. 1, Interview at 6 of 12; Tr. at 33, 34). ln determining that the respondent lacked credibility, the only inconsistency the Immigration Judge relied on is the respondent’s explanation for why (her ex-partner) ID(I beat her (I.J. at 4, 5). As such, we conclude that the adverse credibility finding is clearly erroneous.

In the alternative, the Immigration Judge also determined that The Immigration Judge determined that the respondent did not establish that her proposed particular social group of “violently abused women who cannot leave the relationship without leaving their children behind” was a cognizable group. Specifically, the Immigration Judge determined that, unlike the respondent in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014), the respondent here was able to leave her abuser.We disagree. Although the respondent did ultimately c0me to the United States to escape her abuser, by definition, any person applying for asylum in the United States has fled the   harm that they experienced. As such, the ultimate ability to flee from harm cannot be a disqualifying factor.

Further, in this case, the respondent testified that [her ex-partner] would not let her leave with her children but insist that she leave them behind with him (Tr. at 33-34). We conclude, however, that it is unreasonable to expect a parent to voluntarily leave her minor children behind under these circumstances, and, therefore, we conclude that the respondent established that, while she was in Honduras, she was constructively unable to leave the abusive relationship because of the children.”

 

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