The *Happy Firday* #BadImmigrationDecision trend continues. This week it is courtesy of BIA with Matter of C-A-S-D
link: justice.gov/eoir/page/file…
Although its a 209c & Matter of Jean decision, don't be fooled in thinking it is a limited scope, so no biggy.
link: justice.gov/eoir/page/file…
Although its a 209c & Matter of Jean decision, don't be fooled in thinking it is a limited scope, so no biggy.
1/ It is the BIA's first take on "Exceptional and Extremely Unusual Hardship” and "Exercise of Discretion" in the context of an application for relief by a non-citizen with criminal record after AG Barr dropped Matter of Castillo-Perez ... and you guessed it it ain't pretty.
2/ The BIA analysis is sweeping so it will apply to EVERY 42B cancellation of removal application even where criminal record is not present. It basically eliminates eligibility for many cases in which medical hardship to qualifying relative is at issue & narrows Matter of Monreal
3/ Here are the relevant facts in the case: Resp US citizen son has serious medical &behavioral health issues, including a diagnosis of Wolff-Parkinson-White
syndrome & Adjustment Disorder. He will likely require future surgery for
his heart condition. But BIA reversed the IJ's
syndrome & Adjustment Disorder. He will likely require future surgery for
his heart condition. But BIA reversed the IJ's
4/ ... finding of exceptional and extremely unusual hardship (Duh!?!) because the IJ finding that the son relies on Resp for financial and emotional support were clearly erroneous!!! Think about it for a moment what this would mean for 42B applicants.
5/ To reverse the BIA cited the following:
*Resp has not held a job since he was 19, before his son was born.
*Resp has been incarcerated since 2010
*While in jail Resp sent his girlfriend a total of $20 ...
*Resp has not held a job since he was 19, before his son was born.
*Resp has been incarcerated since 2010
*While in jail Resp sent his girlfriend a total of $20 ...
6/... Here what BIA wrote next: "In addition, although the respondent’s girlfriend has been working part-time in a chiropractor’s office, she also receives public assistance." ... So for anyone who thinks that the #PublicCharge Injunction protects ppl, well think again!
7/ By this one sentence BIA has in essence infused the evils of the #PublicCharge rule into any applications for relief and specifically into 42B and 212(h) waiver, even where the Public Charge clearly does not applies.
8/ Here is the BIA conclusion: "Even if we give the testimony of the
respondent and his girlfriend full value, we are not persuaded that the
medical, financial, and emotional hardships that the respondent’s son will
suffer are, in the aggregate, exceptional and extremely unusual"
respondent and his girlfriend full value, we are not persuaded that the
medical, financial, and emotional hardships that the respondent’s son will
suffer are, in the aggregate, exceptional and extremely unusual"
9/ But Matter of C-A-S-D also goes into CAT & "more likely than not" standard, thus will affect almost everyone who is or will be covered by the #TransitCountry asylum ban. Remember, those who did not apply for asylum in 1st country entered are barred from asylum but they can...
10/ ... establish reasonable fear and then receive withholding of removal and/or CAT if they can show 'more likely than not' would be tortured or persecuted upon refoulement (burden for receiving a grant). So, just to make it hurt just as much as possible BIA made these rulings
11/ Adopting Myrie v. Att’y Gen. U.S., 855 F.3d 509, 516 (3d Cir. 2017) BIA send the msg to IJ that "in evaluating a claim under CAT, an Immigration Judge’s findings regarding what is likely to happen to an alien if removed are factual findings reviewed for clear error."
12/ Meaning: use proper lingo to insulate findings from de novo review by couching them as factual ... ie future looking predictions. Ergo, most appeals are doomed and appropriate for AWO.
13/ Oh but this is not all!
Resp "has not met his burden of proof to establish that he will more likely than not be tortured in Cuba by submitting evidence of that country’s human rights violations, such as arbitrary arrests of political opponents, physical abuse of detainees..."
Resp "has not met his burden of proof to establish that he will more likely than not be tortured in Cuba by submitting evidence of that country’s human rights violations, such as arbitrary arrests of political opponents, physical abuse of detainees..."
14/ Adopting 3rd Circuit Wang v. Ashcroft "that an alien cannot show that it is more likely than not that he will be tortured by citing State Department reports indicating that certain categories of prisoners are likely to be tortured." At first glance it may not look like much
15/ but it is. Discarding reliance on background materials where no past torture/persecution is present, basically forces applicants to come forward w/ expert opinion & testimony to meet BOP. Now that will be fine if access to experts in immigration cases was subsidized.
16/ There are no 'panels of experts' asylum seekers can turn to 4 evaluation. They have to find them, pay them or get them to provide services pro bono. For people stuck in #MPP THIS IS IMPOSSIBLE. So, decision is just next stone of the path leading to obliteration of due process
