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  • Article: Investigate Atlanta and Charlotte Immigration Judges For Knowingly Depriving Children of Right To Apply Asylum by Bryan Johnson

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

    by


    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 Immigra 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.”

     

    screen-shot-2016-09-13-at-12-33-44-pm

    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).

    Screen Shot 2016-09-13 at 12.38.24 PM.png

    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.

    screen-shot-2016-09-13-at-12-40-27-pm

    BIA remand of Immigration Judge Pelletier

    screen-shot-2016-09-13-at-12-46-24-pm

    BIA Remand of Immigration Judge Wilson

    screen-shot-2016-09-13-at-12-49-58-pm

    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.

    Reprinted with permission.


    About The Author

    Bryan Johnson holds a Juris Doctor from Hofstra University School of Law, where he focused his studies on immigration law. Mr. Johnson was a student advocate at the Hofstra Political Asylum clinic, where he helped several clients win their asylum cases. After graduating from law school, Mr. Johnson spent several months at a bustling long island immigration law firm and decided to open up his own shop so that he could better serve his clients' interests.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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