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Throwing Children Asylum Applicants To The Wolves

Under the dark shadow cast of Americans’ obsession with Donald Trump, Barack Obama continues to wage a fierce, relentless, and exclusive war against the most vulnerable group imaginable: children who fled war in Central America.

Below are the results of a years-long investigation–based on documents obtained through FOIA, friends, and the public domain–into the  story of how the Obama administration secretly suspended  laws, regulations, and policy so that it could deport as many children as possible.

The law of the land in the United States–8 U.S.C. 1232, to be precise–mandates that that the U.S.provide enhanced procedural protections for unaccompanied immigrant children who seek asylum in the United States.

Yet just when an unprecedented number of Central American children were in need of these legally mandated protections, the DHS’ asylum division leadership weakened its Headquarters review process in a secretive February 20, 2015 e-mail to the leaders of asylum offices across the country:

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In laymen’s terms, “HQ” is Asylum Division Headquarters and “QA” is Quality Assurance. “Referrals” is a legal euphemism to camouflage the fact that the asylum office denied a an individual’s asylum application. After a “referral”,  the asylum office orders the applicant to appear for deportation proceedings before an immigration judge. As a defense to deportation, the  applicant may apply for asylum before an immigration judge and have their case decided de novo. 

Why is this all important? Because substantial evidence shows that the policy change initiated on February 20, 2015 caused a steep drop in the asylum grant rate for unaccompanied children (UC) applying under the initial jurisdiction of the TVPRA.

The asylum division granted  60.4% of UC asylum applications in the period spanning from October 1, 2014 to December 31, 2014, as can be seen in the following chart:

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At the same time that the asylum division eliminated mandatory headquarters review for juvenile referrals, the grant rate unaccompanied children dropped by over 19 percentage points to 41% from January 1, 2015 to March 31, 2015 with 1772 children denied and 1230 granted asylum, respectively.

 

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The grant rate continued to slide:  for FY 2015 and FY 2016, 41.2 % and 38.2% of UCs were granted asylum, respectively.

Are  there are factors unrelated to the HQ review policy change that account for the decrease in asylum grant rates? Perhaps, but the overwhelming evidence supports the conclusion that, indeed, the asylum division’s 02/20/2015 about-face in HQ review was the main driving cause of the steep decline in unaccompanied children granted asylum.

An Off-the-Record E-mail From Asylum Division Chief John Lafferty Reveals Intent To Increase Number of Children Denied Asylum. 

In August of 2015, Asylum DIvision Chief John Lafferty responded to an inquiry from an advocate with the following:

Your inquiry to the Chicago Asylum Office has been forwarded to HQ for response.  The Asylum Division regularly reviews and considers revisions to our internal quality assurance process.  Not all revisions and adjustments to the quality assurance process are accomplished with the issuance of a formal memo, and none of the changes impacts the requirement that 100% of cases processed by an Asylum Officer are reviewed and signed off by a supervisor prior to issuance of the decision.

As you have noted, in January 2014 we revised the category of review of cases where the principal is a juvenile from reviewing all such cases to reviewing only NOIDS, denials and referrals.  After spending more than a year reviewing this revised category of cases, we decided in February 2015 to begin work on establishing a random review of the full range of UAC decisions, both positive and negative.  This is consistent with the change that was previously made to our QA review of credible fear and reasonable fear screening determinations.  While we work to establish a procedure for random review, we asked our offices to send us the following revised category of juvenile cases that involve both positive and negative decisions – cases that fall within one of the other categories designated on the QA Referral Sheet and cases involving a novel PSG.

We will consider issuing a memo outlining the changes to the QA review process for juveniles once we have settled on the parameters for the random sampling of cases.

Thank you for your continued service to the protection of refugees.

John

John Lafferty

Chief

USCIS Asylum Division

Once notes Mr. Lafferty never explicitly disclosed the policy as set forth “official-yet-unpublished February 20, 2015  e-mail to asylum offices “What this means is that you [asylum office directors] are no longer submitting all referrals and NOIDs incases in which the principal applicant is less than 18 years old at the time of filing.” Instead, he cites to an aspirational future review policy and states, in as indirect way as possible, that juvenile asylum applicants will be reviewed by HQ like any other asylum applicant.

HQ Review Policies for Juvenile Asylum Claims and Credible Fear Determinations Were Both Explicitly Designed to Provide Enhanced Procedural Due Process Safeguards 

The previous policy for  HQ review of juvenile asylum cases was promulgated in a January, 27, 2014 memorandum from Mr. Lafferty, Changes to Case Categories Requiring Headquarters Review. The policy and its explanation were explained at length:

Fifth, the juvenile category is being narrowed to include only referrals, NOIDS and denials of juvenile cases. The category of juveniles was added to the QA referral list in 2003. At that time, HQ determined that a juvenile category was necessary to ensure that the Children’s Guidelines were being followed and to look for trafficking concerns among UACs. The Asylum Division has significantly enhanced the resources available to Asylum Officers regarding human trafficking over the last couple years by developing a comprehensive lesson plan and formally implementing new procedures. The Asylum Division will serve our goal of ensuring that the Children’s Guidelines are being followed by continuing to review the referrals, NOIDS and denials. The field, however, is no longer required to submit grants of juveniles for HQ review, unless they fall into another HQ review category.

As one can gather from the bold section above, the purpose behind requiring HQ review for all juvenile referrals, NOIDS and denials was to ensure that the children’s guidelines were being followed in the field.

The “guidelines” are in fact a series of binding rules that asylum officers in the field must comply with when interviewing and adjudicating children’s asylum claims. If there is no mechanism to force a group of individuals to comply with a rule, the rule is not worth the paper it is written on.

Moreover, the guidelines were issued in 2009 to take into account the recent enactment of the Trafficking Victims Protection Reauthorization Act, (TVPRA), which commanded the U.S. government to

(8) Specialized needs of unaccompanied alien children

Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the principal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.

In clearer terms, the January 2014 memorandum means that the Asylum Division’s HQ review served their goal “of enforcing compliance of the rules set forth in the Children’s guidelines.”

The mandatory language in the guidelines clearly indicates that an asylum officer must follow specialized rules. A sampling:

In order to create a child-friendly atmosphere, asylum officers must attempt to build a rapport with the child, “read” the child applicant for any sign of anxiety, and guide the child through the interview process.

Asylum officers must make an effort to ascertain the child’s quantitative reasoning ability.

In order to communicate effectively with a child asylum applicant, an asylum officer must ensure that both the officer and the child understand one another.

During the interview the asylum officer must take the initiative to determine whether the child understands the process and the interview questions.

All asylum claims filed by principal applicants under the age of eighteen at the time of filing must be submitted to the Headquarters Asylum Division (HQASM) for quality assurance review before they can be finalized.

Asylum officers must earn the trust of the child applicant in order to dispel these preconceptions and put the applicant at ease.

The lesson will cover the international guidance that bears on this issue, the procedural adjustments asylum officers must make when interviewing children, and the legal issues that must be considered when analyzing cases and making asylum determinations.

 

If an asylum officer clearly failed to comply with the child guidelines and then denied a minor’s asylum application, HQ likely sent the case back to the asylum office to reconsider the decision in light of the correct guidelines. This may include reassigning the case to a different asylum officer for another interview, or a reconsideration on the legal  basis for the denial of asylum. In short, violating the children’s guidelines up until February 20, 2015 often created concrete consequences–more work and more hassle– for the asylum officer  and his or her supervisor.

With the prospect of rebuke from HQ, the asylum officer and asylum office directors had a strong incentive to comply with the children’s guidelines. For example, an asylum office director would try to assign children’s cases to  asylum officers with naturally friendly dispositions towards children because they would be less likely to run afoul of the rules and therefore would minimize the chance that a denied case would be sent back for reconsideration upon HQ review.

The Asylum Division rescinded the children’s guidelines in a sweeping fashion by eliminating HQ review of juvenile asylum denials. The message to asylum offices in the field was clear: “You should follow the rules in the children’s guidelines, but feel free to do whatever you want since we will no longer enforce the rules.”

Why would the asylum division destroy its own mandatory rules on children’s cases? To tacitly encourage the violation the children’s guidelines as well as the statutory mandates under the TVPRA.

The enforcement of compliance with the children’s guidelines–mandatory HQ review of all juvenile denials–prevented the asylum division leadership from complying with the Obama administration’s orders to speed up completion of children’s asylum cases.

A Test Case:  Elimination of Mandatory HQ review for all Credible Fear Denials Yielded Immediate Decrease In Credible Fear Grant Rate in June of 2014

 

In addition to the goal of  expediting the completion of children’s cases as explained above, Mr. Lafferty alludes to another potential goal–to decrease the percentage of children granted asylium–when he states the February 20, 2015 decision to be “…consistent with the change that was previously made to our QA review of credible fear and reasonable fear determinations.”

Prior to June 11, 2014, HQ review of “all negative credible fear determinations” was mandatory “to ensure that bona fide asylum seekers are not returned to countries where they may face persecution or torture.”

To add context, at the time, USCIS’ policy was partially guided by recommendations madein 2005 by the U.S. Commission on International Religious Freedom, an “independent, bipartisan U.S. federal government commission.” UCIRF found that “the QA and other procedures for negative determinations were more onerous than the procedures for positive determinations, creating a potential bias toward positive determinations.”

As such, UCIRF recommended that the asylum division “similar QA procedures to both positive and negative determinations.”  The Asylum Division only partially implemented the procedures: it increased the HQ QA review of positive determinations but continued to require “more onerous” procedures for negative determinations” by requiring HQ QA review for all negative determinations.

Clearly, the rationale of USCIS’ policy in place from 2008 to June of 2014 was to err on the  side of minimizing erroneous negative CF determinations, even if there was evidence that to do so would create the risk of more erroneous positive CF determinations. The reasoning makes logical,sense: the consequences of an erroneous CF determination is that a human being will be sent to a country where they will face persecution or torture whereas the reverse is less dire: an erroneous positive determinations will, at worst, give a human being the right to apply for aslyum before an immigration judge.

Indeed, the CF grant rate from FY 2012 up through FY 2013 remained near 90% and never dropped lower than 85%.

On February 28, 2014, the asylum division issued a revised lesson plan on credible and reasonable fear determinations, which was widely seen as an intentional policy shift to heighten the requirements for an individual to be granted a credible fear.

But the subsequent statistics reveal that the memorandum did not, by itself, cause a large decrease in CF grant rates. In March of 2014, the month immediately following the new lesson plan on credible fear interviews, the CF grant rate was 83%, a 6.1% drop from February of 2014.

The CF grant rate remained steady at 83% in April and May of 2014, then dropped to 76.1 in June of 2014, the same month that Mr. Lafferty eliminated mandatory HQ review for all negative CF determinations.

In 2015, the total CF grant rate was 80.76%, 33,998 grants and 8097 denials.  However this was an inflated number given that extraordinary efforts of pro bono lawyers for mothers with children in family detention centers, and the fact that families were detained in only 3 detention centers, as opposed to single adults who are detained in dozens of centers spread out throughout the United States.

The CF grant rate for families in FY 2015 was 93%, with 8097 grants 602 grants, which provides us with a more accurate number.

As such, for single adults, there was a 77.5% grant rate for the all adults in FY 2015.

The depressed CF grant rates in place since 2014 continued for FY 2016.

The total CF grant rate was 88.28%, with 73,081 grants and  9697 denials. However, again, like in FY 2015, this grant rate is significantly inflated due to a higher CF grant rate for mothers with children at family detention centers, with  36570 grants and 1626 denials. 95.7% grant rate for families and 81.9% for single adults.

The Asylum Division’s June 2014 policy change was ostensibly a change based on USCRIF’s recommednation in 2005 to eliminate the mandatory review of all CF denials. But the asylum division failed to explain why it waited for over a decade to adopt USCRIF’s recommendation. The timing leaves little doubt as to the unstated reason: to increase CF denials in an effort to deter asylum seekers from fleeing to the U.S. in record numbers.

The number of CF requests exponentially increased in the last years:

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As one can see, the Asylum Division’s decisions to restrict the number of individuals granted CF came after a record leap in CF requests–in 2013, the number almost tripled from the previous year, over 36,000 requests compared to the previous year of just under 14,000.

In the FY 2014 itself, the adoption of the USCRIF “recommendation” to eliminate HQ review for CF denials occurred in the month with the highest number of CF requests in history:

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In other words, USCIS decided to abandon its policy of ensuring that as few bona fide asylum seekers were wrongfully deported due to an erroneous CF at the same time that there was an unprecedented number of individuals requesting asylum protections in the United States.

The Elimination of Mandatory HQ Review for all Juvenile Asylum Denials Also Occurred Same Month Where Record Number of Children Applied For Asylum

Before 2015, the aslyum division received very few asylum requests for children as this chart shows:

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In FY 2015, which began right at the same time–October of 2014–that the Obama administration kicked of its campaign to expedite the deportation of unaccompanied minors, including a directive to the aslyum division to schedule unaccompanied minor over all other applicants. Asylum offices nationwide decided almost 12,000 juvenile aslyum cases in FY 2015, more than 10,000 from the previous year number of 1,013..

And the decision’s timing, like with credible fear HQ review, occurred during the same time with an unprecedented number of asylum decisions issued for unaccompanied children:

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Thus, in the second quarter of FY 2015, the aslyum division decided more children’s asylum cases–3287–than the previous 6 years combined. the aslyum division rescinded the mandatory guidelines for children asylum applicants at the precise moment that a record number of children were in desperate need of our asylum laws protections.

The Asylum Division Concealed Its Decision To Cease “Ensuring Compliance With Children Asylum Guidelines” From Congress and the U.S. Public

The Asylum Division misrepresented its policy regarding juvenile asylum cases to the Government Accountability Office (GAO) in connection with a report released in December of 2015:

Second, the Asylum Division’s Quality Assurance Branch requires that asylum offices submit certain types of cases to Asylum Division headquarters for review. According to Quality Assurance Branch officials, these reviews focus on sensitive asylum cases, such as…cases that could result in particularly negative outcomes if the applicant is improperly denied asylum, such as cases involving a juvenile. For example, as of July 2015, the Quality Assurance Branch requires asylum offices to submit to headquarters all cases for which the principal applicant is under 18 years of age and the officer had decided not to grant asylum.111 Our review of Quality Assurance Branch data found that, from fiscal years 2010 through 2014, the Quality Assurance Branch reviewed 5,696 applications. The most common type of application reviewed (3,213) involved juvenile applicants.

As February of 2015, the Quality Assurance Branch no longer required asylum offices to submit to headquarters all juvenile cases where the officer had decided not to grant asylum headquarters. As such, the asylum division’s falsely represented to GAO that its HQ review policy remained as of July 2015.(Emphasis added)

Lest one chalk this inconsistency up to a typographical error, see footnote 111:

In September 2015, Asylum Division officials told us that they are working to transition to a random review of all cases involving juvenile principal applicants, including cases in which the officer decided to grant asylum.

The Asylum Division already had moved to a random QA review immediately as of February 20, 2015. Here, it appears that the Asylum Division they are working on a future transition to a random QA review while retaining its policy of QA review for all juvenile asylum denials.

There was never any reasoned basis to implement a random QA review for juvenile asylum denials–USCRIF recommendation was solely directed at the narrow policy goal of minimizing the numbers of erroneous positive credible fear determinations caused by a potential bias given the more onerous procedural hurdles imposed on asylum officers that HQ review imposed for credible fear denials.

Unlike HQ review guidelines for credible fear determinations, there is a a statutory mandate in the TVPRA requires the asylum division to impose more onerous procedural safeguards for unaccompanied children applying for asylum.

By commanding the Asylum Division to create regulations to take into account the specialized needs of unaccompanied alien children, Congress expressed its unequivocal intent that there should be an abundance of caution in adjudicating children’s cases to ensure that a child is not wrongfully denied asylum.

As such, the Asylum Division’s leap the adoption of a recommendation from unrelated study on credible fear determinations is illegal because it is in direct defiance of its obligations under 8 USC 1232 to provide regulations that take into account the specialized needs of unaccompanied children. It is also without any sound evidentiary basis in whatsoever.

The second strong piece of evidence supporting the conclusion that the Asylum Division actively concealed its ultra vires revocation of statutory mandated procedural protections for children asylum applicants is its December, 2015 “Affirmative Asylum Procedurals Manual (AAPM) Public Version, in which it purports to the public the following:

x. Headquarters QA Review Required

Referrals and NOIDs of all juvenile cases in which the principal applicant is less than 18 years old at the time of filing should be sent to HQ for QA review prior to service.

The Asylum Division HQ eliminated this requirement 7 months earlier in February of 2015. Thus, the asylum division falsely represented to the public that HQ review of all juvenile cases is required.

The Mandatory Scheduling of Asylum Interviews for 7:45 am deprives children of their constitutional right to due process and is wholly unnecessary given the asylum office does not start the interview until 9 am or later in the vast majority of cases.  

The asylum office’s policy, at least in New York, is to schedule all juvenile cases at 745 am. In reality, the asylum officer does not call the child in for the interview until 9 am, and often significantly later.

The majority of children whose claims are under the jurisdiction of the NY asylum office reside in Suffolk and Nassau Counties. Prior to the NY asylum office’s transfer from Rosedale, Queens to Bethpage, New York, the 745 am appoinments required children to wake up no later than  530 am to ensure that they could arrive at the Rosedale office, which is 1 to 2 hours away with traffic.

Even with the asylum office in Bethpage, children still have to rise no later than 6 am to ensure they arrive at 745 am. Many of our clients, in a rush to not be late, come to their interview before even having breakfast.

Furthermore, many children already struggle to obtain enough sleep on the eve of their interview due to anxiety.

The potential harm to a child’s due process rights is not speculative.

The American Academy of Pediatrics recommend that middle and high schools delay the start of classes to 8:30 am or later given that “Studies show that adolescents who don’t get enough sleep often suffer physical and mental health problems…and a decline in academic performance.”

The AAP made these recommendations in light of studies that showed the majority of adolescents in the United States are chronically sleep deprived.

The additional reduction of 1-2 hours of sleep caused by the 745 am scheduling on top of a child that is likely to already be sleep deprived is a recipe for disaster. Specifically, a child will be less likely to recall details regarding past experiences, including severe trauma.

Given the above, the asylum office should rescind its mandatory scheduling of children’s asylum interviews for 745 am and schedule them no earlier than 9 am to take into account the  significant distance of the asylum office from the majority of childrens’ homes.

Obama Administration Must Be Held Accountable For Depriving Children Asylum Applicants Of Their Statutory and Constitutional Rights.

Why harm children? Why would the U.S. government under President Obama aggressively harm vulnerable children seeking safety in our country? It is a question I have contemplated over and over and over again.

Although one cannot read the President’s mind,  from administrations’ words and actions provide a strong clue.

The politics the Democratic and Republican party’s courting of the perennial  “secure our border/stop illegal immigration”  constituency.

 This  political weapon employed by the elites in both parties was on full display a press release issued yesterday by DHS Secretary Jeh Johnson’s response to mounting numbers of individuals from Central America seeking asylum protection at the U.S. Mexico  border:

As difficult as circumstances may be in Central and South America and the Caribbean, our borders cannot be open to illegal migration. We must, therefore, enforce the immigration laws consistent with our priorities. Those priorities are public safety and border security. Specifically, we prioritize the deportation of undocumented immigrants…apprehended at the border attempting to enter the country illegally. Recently, I have reiterated to our Enforcement and Removal personnel that they must continue to pursue these enforcement activities.

 

President Obama and others in leadership intentionally violated statutory and constitutional laws designed to protect children asylum applicants as a means to execute the message that his administration a. is aggressive against illegal immigration and b. has been largely successful in creating a secure border.

Here is what needs to be done on this specific issue,  in 5 steps:

First, the Asylum Division must immediately reinstate mandatory headquarters review of all juvenile asylum denials.

Second, the Asylum Division must immediately rescind its policy of fast-tracking juvenile asylum applications;

Third, the Asylum Division must re-interview every child who was served a referral without Headquarters Review.

Fourth, the Asylum Division must rescind its mandatory 7:45 am scheduling policy for juvenile asylum interviews and implement a policy that ensures interviews are not scheduled any earlier than 9:00 am.

Fifth, Congress must commission an independent investigation to determine which individuals in the Obama administration are responsible for ordering the Asylum Division leadership to de facto rescind the TVPRA and the 5th amendment right to due process.

As of November 17, 2017, the above-article was forwarded as a request  to Asylum Division Headquarters officials as well as Asylum Office Directors throughout the United States.

The above-article will also promptly be forwarded to the DHS’ Office of Inspector General; Office of Civil Rights and Civil Liberties, and the members of the Senate and House Subcommittees on Immigration.

Honduras Pilot Initiative: A Conspiracy To Deprive Hondurans Right To Seek Asylum

 

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Houston Consul General of Honduras Supervisory Immigration Enforcement Agent James R. Donaldson working together on an ICE deportation flight

The Honduras Pilot Initiative (HPI) is an arrangement between the Honduran and U.S. Government to expedite the expedited removal process from weeks to days for Honduran citizens, according to documents ICE released pursuant to one of our office’s Freedom of Information Requests (FOIA).

One of the benefits of this super-expedited deportation program is to deport Hondurans so fast that they never get a chance to hire or consult with an attorney, as is illustrated on page 26-27 on ICE’s release:

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ICE boasts that the reduction in time that an individual is in ICE custody leads to a reduced possibility that an individual can contact or consult with an immigration attorney. The adjective of “unscrupulous” is superfluous because the reduced ICE detention time applies to all immigration lawyers, not just the unscrupulous ones.

The intent of ICE is further corroborated by the last two bullet points: if the detained individual’s family or friends hired an attorney to help them, an attorney must find out where their client is located prior to being able to communicate with the client.

For example, if an individual is transferred to an ICE detention center on a Friday and  their deportation flight is scheduled for the following Monday or Tuesday, that individual will likely be deported regardless of whether they were able to  hire a lawyer. The inability of a detained individuals’ lawyer or family to locate them while in CBP custody leaves them with less than 4 days to hire a lawyer or for their lawyer to locate them and send a credible or reasonable fear request to the proper ICE official, as the following slide demonstrates:

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To double down on this, the last bullet point brags that HPI effectively renders thousands of Hondurans completely incommunicado with no ability no phone access prior to the government of Honduras’ issuance of travel documents. ICE cannot deport an immigrant unless the  immigrant’s native country issues travel documents.

With the pilot initiative, Honduras’ government gives the green light for their nationals’ deportation before they even dry off after crossing the Rio Grande:

According to talking points on the HPI, “Via the Honduran Pilot Initative (HPI) , the government of Honduras agreed to interview up to 100 aliens per day , while in the Office of Border Patrol Custody,  and issue travel documents the same day…:

“In FY 2014, via the Honduras Pilot Initiative, consular officials conducted 16,658 consular interviews, and issued 16,327 travel documents.”

The powerpoint slide indicates that at some point during FY 2014, there were 18,190 travel document requests pursuant to the HPI. The total number of travel document requests via HPI for FY 2014 and FY 2013 was 21,684. Thus, the date of that the slides were made appears to be based on data towards the end of FY 2014. The Honduran government issued travel documents in close to 99% of nationals it interviewed under HPI. Therefore, approximately 85% ( 15,037 removed out of 18,000 travel documents issued) of Hondurans subject to HPI were deported from the US within a matter of days.

Those remaining 3000 who were not deported under HPI may have had the luck to communicate their fear or return to Honduras (whether through counsel or by themselves) to an official in ICE to automatically trigger a stay of removal pending the outcome of their credible fear interview.

The number of Hondurans ICE deported in 2014 was approximately 41,000, meaning that the HPI accounted for more than one third of all Honduran deportations in FY 2014.

El Salvador: Unwilling to Enter Conspiracy With the U.S. to Deprive Its Citizens Right to Apply for Asylum

El Salvador, unlike Honduras, appears to largely rejected US requests to enter into an agreement to expedite the expedited deportation process for its own nationals:

In June 19, 2013 ICE initiated discussion with the Government of El Salvador (GOES) demonstrating proven efficiencies gained through cooperative partnership with the GOG and GOH in response to the surge of their nationals arrested in the RGV. ICE asked the GOES to consider this option as a way to reduce TD processing times and was offered to collocate with the GOG sub consulate in McAllen, TX but the proposal was refused

However, the Salvadoran government did temporarily work with the US to expedite travel documents for 2 months in FY 2014: “During the two months of participation in FY 2014, the El Salvador Initiative conducted 1540 consular interviews, and issued 1129 travel documents.” The number of travel documents issued pales in comparison with that of Honduras and Guatemala.

The Honduran government’s cooperation in HPI resulted in a startling low number of Honduran nationals requesting credible or reasonable fear interviews.

The following numbers were derived from statistics provided by USCIS on fear interviews and and CBP’s national security reports for FY 2014 and FY 2015. I have excluded family unit and unaccompanied minor apprehensions from the calculation given that neither is subject to the Honduran Pilot Iniative.

In FY 2014, CBP apprehended 38,736 Hondurans at the Southwest border. In the same time period, 9,800 Hondurans nationals requested either a credible or reasoanble fear interview. Thus, only 25% of  Hondurans apprehended at the southwest border formally expressed a  fear of returning to their native country.

In FY 2014, Cbp apprehended 35,401 Salvadorans at the Southwest border. In the same time, 21,185 Salvadorans formally expressed a fear of return to their native country. Thus, 60% of Salvadorans apprehended at the Southwest border formally requested a fear interview.

The Honduran government should work for the best interests of its people. If the Honduran government cannot or will not protect its nationals from widespread and severe violence then it should afford them the right to seek safety abroad, including in the United States.

But instead, Honduras’ leaders  are willing participants in a conspiracy with the Obama administration, the Honduras Pilot Initiative, to deprive thousands of Hondurans of their right to seek asylum in the United States.

 

No, President Obama, Central American Children Are Not Likely to Be Deported

In fact, children from Central America have over a 95% chance of not being deported.

In what he thought would be a breezy joint press conference with the Italian Prime Minister, President Obama’s comfort bubble was pricked by an unapproved question from Washington Post reporter David Nakamura.

To better understand the full import of the question, it is necessary to know what happened first.

The question immediately followed the tail end of Obama’s speech, in which he peddled the same policy to address Central American migration that he started during “border crisis” that dominated the headlines in the summer of 2014:

“But one area where we have seen a big spike over the last several years is actually from the smaller countries in Central America, where the economy is doing poorly; agriculture has done poorly, in part, because of changing weather patterns; violence brought on by narcotraffickers.

So Vice President Biden — I gave him the charge of working with those countries to come up with a development plan; Congress on a partisan basis supported us putting more money into these countries for development, more effective policing, dealing with fighting the narcotraffickers in a more effective way, investing in young people.
But that’s not going to happen overnight. That will be a decade- long process potentially.

In the meantime, we insist that those countries cooperate with us to send a message to the populations that it is a dangerous trip to reach the United States. And if you get here, you’re likely to be turned back, to try to discourage a — this dangerous passage but also to try to undermine the human traffickers who are preying on the desperation of these people to make money.” (Emphasis added)

If one were to sum up this administration’s policy towards Central American migrants entering the U.S. at the Southwest border in one sentence, it would be “If you get here, you’re likely to be turned back.” In one word, “Deterrence.”

Starting in 2014, the White House has directed DHS, the State Department, the Department of Defense, the Department of Justice, as well as the the governments of Mexico, Guatemala, Honduras, and El Salvador to implement policies (some of which have been ruled illegal by Courts)  to deter unaccompanied children and mothers with children from reaching the United States’ southwest border.

Yet despite the untold billions of dollars spent, the number of unaccompanied children and mothers with children from Central America apprehended at the Southwest border was higher in FY 2016 than FY 2014, when the deterrence policies were first set into motion.

In this context, the Washington Post reporter asked President Obama whether the higher number of Central American apprehensions in 2016 meant that the policy  of deterrence, which the President just mentioned minutes earlier, was ineffective.

President Obama did not answer for his policies on Central American children because his they have failed spectacularly due to a combination of special  legal protections bestowed on immigrant children by Congress; incompetence, logistical obstacles; and the indefatigable will of caring adults to protect children from harm.

The Vast Majority of Central American Children Who Arrive in the United States Are Eligible for Asylum Or Special Immigrant Juvenile Status in the United States 

Congress enacted laws that bestowed additional humanitarian protections to unaccompanied and accompanied children. Children are more likely to be eligible for asylum than adults as a general matter given that they are more vulnerable to harm that rises to the level of persecution than adults are. Children who cannot be reunified with one or both of their parents due to abuse, neglect, or abandonment are eligible for permanent protection in the United States as special immigrant juveniles. (SIJS) Adults are not.

The statistics do not lie.

For example,  approximately 12,190 the 35,601 unaccompanied children placed in deportation proceedings in 2014 who were represented by an attorney, were granted asylum, SIJS relief, or prosecutorial discretion.

At the same time, only 2,345 of that same 35,601 children were ordered removed by an immigration judge, and 15,170 children’s cases remained pending.

As such, if an unaccompanied children can get a lawyer, they are likely to be allowed to stay in the United States and be granted a green card.

With respect to mothers with children (AWC), the ratio of removals to relief granted is markedly different.

Approximately 1,921 out of the 17,083 represented mothers with children who were placed in deportation proceedings in 2014 were granted relief through asylum, special immigrant juvenile status, or prosecutorial discretion. There were more ordered removed: 3320 out of 17,083. The largest share of cases remain pending–11,203 out of 17,083.

To date, for mothers with children, they are more likely to be ordered removed than to be granted relief. However, given that such a significant percentage of the 17,083 remain pending, it is premature to speculate as to whether more will ultimately be ordered removed or granted relief.

However, the reality is that the more than half of the represented mothers with children who Obama has been trying to deport since 2014 have not even had their case decided. Thus, if a mother with children can obtain a lawyer, her family is not likely to be turned back, at least not yet.

The Obama Administration Is Inept at Deporting Unaccompanied Children

According to  Sarah Saldana, ICE removed a total of 7,643 Unaccompanied Children (UC) from FY 2012 through FY 2015. As of March 10, 2016, the DHS removed at most 336 UC in FY 2016.

From FY 2012 to FY 2016, DHS apprehended a total of 231,365 UCs. Of the latter, 35,695 were ordered removed or granted voluntary departure by an immigration judge in the same period.

As such, an unaccompanied minor has roughly a 96% chance of not being deported from the United States. Even for those who were ordered deported by an immigration judge, only 77% chance of not being deported.

The head of ICE’s enforcement arm, Thomas Homan, testified before the Senate Judiciary Committee that trying to find children to remove is hard, attributing part of the blame on the Spanish media and NGOS for “educating these folks on how not to comply with law enforcement, so there has been many situations where we have been at the residence and we know they are there,  but they won’t open the door, and my officers don’t have the authority of course to go into that house. So, it’s getting more difficult…”

But, the logistical difficulties alone in apprehending unaccompanied children are only one of several reasons that explain the Obama administration’s systematic failure at life:

In a March 9, 2016 press release, Jeh Johnson described the contours of “Operation Border Guardian” as follows:

The focus of this operation are those who came here illegally as unaccompanied children after January 1, 2014, and are now over 18, have been ordered removed by an immigration court, and have no pending appeal or claim of asylum or other relief.

Why is DHS is only targeting unaccompanied children who are now over the age of 18? Because if a UC is under the age of 18, ICE must transfer that child to the custody of the Office of Refugee Resettlement .(“ORR”) ORR, in turn, is required by law to advocate for the best interests of the child. ICE does not want to spend resources on apprehending a child just to lose them to the custody to ORR. Here’s why:

Many, if not most,  of the children targeted in Operation Border Guardian, were never given an opportunity to apply for asylum or seek other relief in the United States prior to being ordered removed by the immigration judge. Therefore, in an ironic twist, if ICE apprehended a child under 18, that child may finally get a chance to apply for asylum while in the custody of ORR.

It may be that these selective enforcement actions are indicative of  primary policy goal of the Obama administration as applied to UCs:  to minimize the total number of UCs granted asylum or SIJS relief in the United States. In the administration’s mind, this works as a deterrent as well: if a child is granted a green card, the child’s family will tell their relatives and friends still in Central American that they can get a green card, too, if they come to the United States.

To be clear, President Obama wants to mass deport UCs,  but he failed to convince his own party to gut the TVPRA so that he could detain and deport UCs without ever allowing them to go before an immigration judge in a June 30, 2014 letter:

providing the DHS Secretary additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador; and

The Obama Administration Is Inept At Deporting Mothers With Children

From FY 2014 to FY 2016, the Obama administration deported approximately 782 mothers with children. In the same time period, DHS apprehended 185,957 mothers with children. Of those apprehended, 32,377 were ordered removed or granted voluntary departure by an immigration judge.

(I pieced together the numbers from ICE’s own releases to the press as well as a TRAC statistical tool that provides the number of individuals deported from each ICE detention facility, which includes Karnes, Dilley, Berks, and Artesia, for FY 2015.)

As such, a family has 99.5% chance of not being deported from the United States. A family ordered deported by an immigration judge has a 97.5% chance of not being removed, although this does not account for those who were ordered removed pursuant to an administrative order of removal.

 

No, President Obama, children from Central America are not likely to be turned back.

 

 

 

 

Investigate Atlanta and Charlotte Immigration Judges For Knowingly Depriving Children of Right To Apply Asylum

stuart-couch

Immigration Judge V. Stuart Couch, along with 3 other Immigration Judges, Systematically Deprives Children and Adults of Right to Apply for Asylum

 

Several Immigration Judges at the Charlotte and Atlanta Immigration Courts are responsible for knowingly and systematically depriving unrepresented immigrants before them of their right to apply for asylum and/or Special Immigrant Juvenile Status.

What follows is concrete evidence of this,  which will be forwarded to the Department of Justice as part of a request to:

1. Investigate Immigration Judges Dan Pelletier, Earle Wilson, V. Stuart Couch, and Barry Pettinato (“Immigration Judges”))

2. Immediately suspend the immigration judges from adjudicating cases pending the investigation;

3.Review record of proceeding of all pro se unaccompanied children and adult with children individuals ordered removed or granted voluntary departure by Immigration Judges since the beginning of Fiscal Year 2014.

4. Order the sua sponte reopening of removal orders where the review of the record of proceedings demonstrates the immigration judge deprived pro se individual of right to apply for asylum or other relief, and

5. Refer to the appropriate law enforcement authorities for criminal prosecution upon finding that any of the immigration judges knowingly and systematically deprived unaccompanied children or adults with children of their right to apply for asylum or other relief.

 I. Knowingly Depriving Individuals of Right to Apply for Asylum

On October 26, 2015, Immigration Judge V. Stuart Couch deprived an unrepresented mother and her two minor children their right to apply for asylum and ordered the family removed instead.

On April 21, 2016,  The Board of Immigration Appeals remanded V. Stuart Couch’s decision to …”to provide respondents the opportunity to apply for asylum withholding of removal, and protection under the Convention Against Torture.” The BIA clearly agreed with the Respondent’s claim that the Immigration Judge failed to comply with 8 C.F.R. 1240.11(c)(1), which provides for the following: “If an alien expresses fear of persecution or harm upon return to the country of removal, and the alien has not previously filed an application for asylum or withholding of removal, the Immigration Judge shall advise the alien may apply for such relief and make available the appropriate forms.”

 

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Yet a few weeks later, on May 9, 2016, IJ Couch again denied an unrepresented respondent her right to apply for asylum at a master calendar hearing. In a short form order, the basis for Couch’s decision to order removal is in the “other category” as follows: “No available relief. See Matter of N-M- 25 I & N 526 (BIA 2011).

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The decision cited to in the order addressed the the standard required for one to establish “an asylum claim founded on opposition to official corruption (or “whistleblowing”) in the context of the “at least one central reason” nexus standard set forth in section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006).”

Judge Couch denied the Respondent’s application for asylum without permitting Respondent to apply for asylum. He prejudged the case.

This is in direct defiance of binding federal regulations as delineated in 1240.11(c)(1); 124o.11(a)(2); and in direct defiance of the BIA’s previous remand instructing Judge Couch to provide a Respondent with the opportunity to apply for asylum.

An excerpt from the record of Proceedings nails down the Modus Operandi of Judge Couch for those who appear before him without an attorney. After briefly inquiring about the basis of her claim, the Judge Couch said the following:

“Unfortunately based upon what you’ve told me the law doesn’t allow me to grant asylum under those facts.  While I understand that there are problems with gangs, serious problems in El Salvador, I have to still consider what the law allows me to grant on applications for asylum.  And from what you’ve told me and what you’ve said in your credible fear interview, the fear that you have of the gangs is related to their demands that your husband pay the money.  And unfortunately, ma’am, that’s not a basis for which I can grant asylum.”

The Immigration Judge is prohibited from prejudging an individual’s claim to asylum. He must provide the immigrant an opportunity to file an application for asylum. Thereafter, he can only issue a decision after providing the Respondent with an evidentiary hearing where Respondent is permitted to prevent evidence or witnesses’ testimony on her behalf. See 8 C.F.R. 1240.11(c)(3)(i-iii).

 

Substantial Circumstantial Evidence Shows That Immigration Judge V. Stuart Couch and Several Other Immigration Judges at the Atlanta and Charlotte Immigration Courts Have Deprived Thousands of Unrepresented Mothers with Children and Unaccompanied Minors of Their  Right to Apply for Asylum 

The following additional Immigration Judges have previously been remanded by the  BIA for ordering unrepresented individuals removed without providing them an opportunity apply for asylum and withholding of removal in clear violation of  J. Dan Pelletier; Earle Wilson;  and Barry Pettinato. The decisions are below.

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BIA remand of Immigration Judge Pelletier

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BIA Remand of Immigration Judge Wilson

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BIA Remand of Immigration Judge Pettinato

 

There is substantial evidence already available that both Judge Pettinato and Couch, as a matter of practice, knowingly deprive unrepresented individuals of their right to apply for asylum given that both Judges continue to the same exact conduct even after they were previously ordered by the BIA to afford individuals who express a fear of return to their country of their right to apply for asylum under 8 C.F.R. 1240.11(c)(1)(i)

With respect to Judge Wilson and Judge Pelletier at the Atlanta Immigration Court, there is evidence of each Judge engaging in a course of conduct that results in a clear deprivation of rights of individuals without an attorney who attempt to apply for asylum before them.

For example, after Judge Wilson was remanded in March of 2014 for failing to provide unrepresented individuals before him with an application for asylum and their right to apply for such relief, his behavior changed but only insofar as to manage to still deprive an individual of their right to apply for asylum while adhering to basic minimum of what the regulations require.

In a sworn affidavit, a court observer described what occurred at a master calendar hearing for unaccompanied children and mothers with children:

In three of the cases, IJ Wilson asked the respondents, including the child in proceedings on her own, why they did not want to return to their home countries. When they expressed fear of return, the IJ gave them asylum applications and granted two-week continuances to complete and file the applications.

Here, Judge Wilson complied with the letter of the law by providing pro se respondents, including an unaccompanied child, with the application for asylum. However, by only granting two weeks to complete the application and by providing zero inquiry into whether the child was was competent enough to complete, or even read, the application.

Furthermore, the full context shows that Judge Wilson’s conduct resulted in a de facto deprivation of rights, compared to the de jure conduct that Judge Couch and Pettinato engage in.

At a hearing on January 22, 2015, the following took place before IJ Wilson:

Approximately fourteen children did not have attorneys, including eight in proceedings on their own and approximately six in proceedings with family members. Seven of the unaccompanied children were granted continuances to obtain an attorney. Four of those children were given continuances until February 5, 2015; two of the children, who provided documentation of scheduled appointments with attorneys in early February, received slightly longer continuances to February 12 and 19, 2015; one of the children, who claimed she had an attorney who was unable to make the hearing, received a continuance to February 3, 2015.

2 weeks is an extraordinarily short adjournment. It gives an individual approximately only 10 days to not only find an attorney to consult with, but to come up with a significant sum of money to pay for the attorney’s fee as well.

Then, “Judge Wilson told the unrepresented children who were granted continuances that if they did not have an attorney representing them at their next hearing, they would have to speak for themselves. One of the children who received a two week continuance told IJ Wilson that he could not currently afford an attorney, but that his father was working in order to earn enough money to pay for one. IJ Wilson nonetheless told the child that, at his next hearing, he would not receive any additional continuances to try to find an attorney.”

Judge Wilson effectively deprived children of their right to counsel by constructing insurmountable time limits for children to consult with and hire a lawyer.

Judge Wilson further deprived children of their right to file their asylum application with United States Citizenship and Immigration Services (USCIS), which has initial jurisdiction over unaccompanied children’s’ asylum claims, by failing to advise, and provide, any instructions on how to file with USCIS.

II Systematic Deprivation of Right for Unaccompanied Children To Apply for Asylum with USCIS as Mandated by the Trafficking Victims Protection Reauthorization Act

Under the the TVPRA, USCIS , a component of DHS, has initial jurisdiction to adjudicate asylum applications for unaccompanied children.

In 2013, the asylum division created a clear, unequivocal policy on their interpretation of who an unaccompanied child is for purposes of applying for asylum:

If “CBP or ICE already determined that the child is a UAC, asylum offices will adopt the determination and take intial jurisdiction over the case…USCIS will take jurisdiction over the case, even if there appears to be evidence that the applicant may have turned 18 years of age, or may have reunited with a parent or legal guardian…”

Despite the irrefutable fact that USCIS would exercise jurisdiction over children already determined to be UACs by ICE or CBP, Immigration Judges Wilson, Pelletier, Couch, and Pettinato unlawfully deprived every child without a lawyer (and even with a lawyer)  the right to apply for asylum with USCIS. These four judges abused their authority by taking it upon themselves to determine whether USCIS had intial jurisdiction over the children’s’ cases despite having no legal authority to do so.

III Systematic Deprivation of Right for Children to Apply Pursue Special Immigrant Juvenile Status

Immigration Judges Wilson, Pelletier, Couch, and Pettinato routinely denied children their right to pursue the relief of Special Immigrant Juvenile Status. On many occasions, these judges ordered children removed despite children or their attorneys providing evidence that their matters in juvenile court were still pending.

The Department of Justice must review the record of proceedings of all unrepresented individuals, particularly unaccompanied minor children (UC) and adults with children (AWC) who have been ordered removed or granted Voluntary Departure by any of the 4 Immigration Judges referenced above to determine how many were deprived of their right to be advised of their eligibility for relief that they appear to be eligible for under 8 C.F.R. 124o.11(a)(2) and of their right to file Form I-589, application for asylum and withholding of removal before the Immigration Judge if they expressed a fear of removal to their home country.

 

 

 

 

 

 

Obama administration: ‘We Must Prevent Muslim Refugees From Seeking Asylum in United States’

In an interview with FoxNews,DHS Secretary Jeh Johnson admitted that the Obama administration views refugees  seeking asylum from the Middle East and Africa as more of a threat to the U.S. homeland than other (i.e. non-muslims) refugees seeking asylum:

“In terms of the Southwest border, I just recently asked for them to focus on immigrants coming illegally from other hemispheres, from the Middle East and so forth, to detect them and block them before they even get to the homeland, working with governments in South America, Central America to prevent that from happening,”

He went on:

“You’re correct that we’re seeing illegal migrants coming from Africa, coming from the Middle East,” Johnson told host Chris Wallace. “And we’re doubling down on preventing that happening before they even reach the Southwest border.”

The Obama administration’s actions are a carbon copy of what Donald Trump has stated in the past on refugee from Syria:

“We have no idea who these people are, we are the worst when it comes to paperwork,” Trump said Monday on CNBC. “This could be one of the great Trojan horses.”

“We cannot let them into this country, period,” Trump said Monday. “Our country has tremendous problems. We can’t have another problem.”

 

 

 

 

 

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.”

 

BIA Remands of Immigration Judge Dan Pelletier’s Denial of Asylum Claims

Below is a summary of several BIA remand decisions Immigration Judge Dan Pelletier’s denial of asylum claims.

Two important notes.

First, In cases 4 through 10, IJ Pelletier denied unaccompanied children the right to apply for asylum before USCIS, which has initial jurisdiction under the Trafficking and Victims Protection Reauthorization Act. (See INA Section 208(b)(3)(C) INITIAL JURISDICTION- An asylum officer (as defined in section 235(b)(1)(E) ) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section 235(b) .)

In the earliest remand from the BIA, dated May 29, 2015, the BIA remanded the case to Judge Pelletier with clear instructions.

as USCIS is the agency vested with initial jurisdiction over the asylum applications of unaccompanied alien children, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of a respondent’s application. See section 208(b)(3)(C) of the Act. Therefore, we will remand the record to the Immigration Judge to await USCIS’s determination as to whether it has taken initial jurisdiction over this respondent’s application for asylum we will remand the record to the Immigration Judge to await USCIS’s determination as to whether it has taken initial jurisdiction over this respondent’s application for asylum.

The BIA remanded 4 additional cases to Judge Pelletier in June of 2015 with the same instructions.

Yet on June 19, 2015, nearly one month after Judge Pelletier was clearly instructed to continue matters to “await USCIS’s determination as to whether it has taken initial jurisdiction over the respondent’s application for asylum” he denied another unaccompanied child the right to apply for asylum before USCIS. See decision number 4 below, which was an appeal from a Pelletier denial of an asylum application on June 19, 2015.

Second, in decisions 1 and 2, where Respondent was ordered removed without an attorney, the BIA found the Immigration Judge failed  “provide to provide respondent’s with an opportunity to apply for” asylum and withholding of removal despite knowing both Respondents having previously expressed a fear of return to their native country.

Decision 2 was remanded by the BIA on June 24, 2014. Decision 1 was an appeal from the Judge’s removal order at a hearing on May 19, 2015.

As such, despite  the June, 2014  instructions from the BIA stating that he must provide Pro Se Respondents an opportunity to apply for asylum by providing them with Form I-589 and advising them of their right to an evidentiary hearing, Judge Pelletier was caught again in the same act on May 19, 2015–depriving Respondent of her basic right to apply for asylum.

1 Date of decision: August 25, 2015, Page 160 of FOIA release:

Basis for remand: “In the instant case, the Immigration Judge asked the respondent, who was not represented by an attorney, whether ‘there was any reason why she could not be returned to Honduras’ The Respondent replied, ‘The problem is the delinquency, the situation there is very difficult. The immigration judge did not further address the Respondent’s fear or address the relief of asylum or withholding of removal.’

The BIA thus remanded to “to provide the respondent an opportunity to apply for asylum and withholding of removal.”

2 Date of decision, June 24, 2014, P. 38.

Basis for remand: Respondent  not provided opportunity to present her asylum claim.

“The immigration judge’s decision states that he questioned the respondent and was unable to determine any relief for which she might be eligible. The immigration judge found that the respondent had testified previously that she did not have a fear of return to Guatemala. However, she actually had expressed such a fear at her hearing in Eloy on April 17, 2012 prior to her case being transferred to Atlanta. At the hearing held on February 23, 2013 the respondent’s reply to this assertion by the Immigration

3.    Date of decision May 17, 2016. Page 167 of FOIA release.

Basis for remand: IJ, in effect, 1. did not make a specific credibility finding; 2. Thoroughly evaluate and weigh the respondent’s supporting documentary evidence; 3. Carefully consider the respondent’s claim that she suffered past harm on account of her membership in the Pygmy tribe; 4. Evaluate whether the respondent would suffer future harm under the Makoumou tradition, particularly in light of her testimony regarding forced sexual contact with male tribe members.”

4. Date of decision November 24, 2015, Page 161 of FOIA release

Basis for remand: IJ did not advise or ensure that the asylum application was filed with USCIS, which has initial jurisdiction over unaccompanied alien children,

“We conclude that a remand is necessary for a determination whether this is a case in which USCIS would take initial jurisdiction over respondent’s application for asylum.”

 

5. Date of decision: October 16, 2015, 157.

Basis for remand:

IJ did not advise or ensure that the asylum application was filed with USCIS, which has initial jurisdiction over unaccompanied alien children,

“We conclude that a remand is necessary for a determination whether this is a case in which USCIS would take initial jurisdiction over respondent’s application for asylum.”

6. Date of decision August 27, 2015, Page 146 of FOIA:

Basis for remand: Id

7. Date of decision, June 19, 2015, Page 141 of FOIA.

Basis for remand: Id

8. Date of decision, May 29, 2015, Page 135 of FOIA

Basis for Remand: Id

9. Date of decision June 15, 2015, Page 131 of FOIA,

Basis for remand: Id

1o. Date of decision, June 17, 2015, Page 126 of FOIA,

Basis for remand: I’d

 11. Date of decision: July 24, 2015, Page 122 of FOIA,

Basis for remand: “after multiple remands, the efforts of the immigration judge, through no fault of his own, have not resulted in a transcript that is sufficient to allow appellate review. Under these unique circumstances, we must remand to afford the respondent a new hearing to present evidence in support of his asylum application and for the issuance of a new decision.

12. Date of decision, September 15, 2015, Page 89 of FOIA

Basis for remand: “Unfortunately, the Immigration Judge made few, if any, factual findings about the respondent’s experience in Mexico to support his determinations.

Footnote: For example, at several points in decision  the Immigration Judge refers to the kidnapping of the respondent, but provides no narrative as to what happened, and no other information about any other incidents that may have caused Respondent to fear returning to Mexico.”

13. Date of decision July 30, 2015, P.70

Basis for remand:

“In the case at bar, the Immigration Judge pointed out implausibilities in the respondent’s testimony and her documentary submission but did not make an express credibility determination (I.J. at 8-9). Instead, the Immigration Judge stated that the respondent did not sufficiently corroborate her claim that she suffered a forcible abortion from the Chinese government despite her mother’s corroboratory testimony (IJ. at 9). We will remand the record for explicit credibility determinations for the respondent and for her mother.”