Training of Immigration Judges June 2021 [Part 3 of 3]

by David L. Cleveland

Immigration Judges were given training in June 2021. In response to a FOIA request by the Louise Trauma Center, 884 pages were released.

 This article will summarize pages 638-884. The pages are available on the FOIA page at www.louisetrauma.weebly.com, marked as “IJ June 2021 pages 638-884.”

DOJ Equal Employment Opportunity Policy begins at page 1 of 247.

Sexual Harassment and Sexual Misconduct memo is at page 8 of 247.

Sexual Orientation and Gender Identity Panel Discussion is at page 20 of 247.

Bisexual means “attraction to more than one gender”

Pansexual means “attraction to all genders”

Asexual means “attraction to no gender” [page 41 of 247].

Doe v. Att’y Gen., 956 F.3d 135, 155 n.10 (3d Cir. 2020) (citations omitted) "In case the BIA decides to remand to the LI for any reason, we caution the IJ to exercise greater sensitivity when processing Petitioner's application, as we are troubled by some of the IJ's comments and questions. In addition to suggesting that Petitioner would be better off hiding his identity as a gay man, the LI questioned him in explicit detail about his sexual relations with his partner, going so far as to ask about sexual positions. It is unclear why that line of questioning would be relevant to Petitioner's claim, but to the extent those questions were intended to establish or test his self-identification as a gay man, they were off base and inappropriate. We urge Us to heed sensible questioning techniques for all applicants, including LGBTI applicants." 

]page 45 of 247]

Doe v. Att’y Gen.956 F.3d at 155, n.10, cited:

“USCIS, RAIO Directorate — Officer Training: Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) Refugee and Asylum Claims 34 (Dec. 28, 2011) (‘The applicant's specific sexual practices are not relevant to the claim for asylum or refugee status. Therefore, asking questions about 'what he or she does in bed' is never appropriate. If the applicant begins to volunteer such information, you should politely tell him or her that you do not need to hear these intimate details in order to fairly evaluate the claim.’”]

[page 48 of 247]

Shahinaj v. Gonzales, 481 F.3d 1027 (8th Cir. 2007) (Substantial evidence did not support Ii adverse credibility finding where Ii discredited Shahinaj's claim that he was persecuted in Albania due to his homosexual orientation based on IJ’s personal and improper opinion that Shahinaj did not dress or speak like or exhibit mannerisms of a homosexual, Shahinaj's lack of membership in Albanian homosexual organizations, and IJ’s personal experience that majority of homosexual Albanian asylum applicants claimed persecution for being election observers).

[page 53 of 247]

Todorovic v. U.S. Att’y Gen.,621 F.3d 1318 (11th Cir. 2010) ("After thorough review, we conclude that the IJ’s decision was so colored by impermissible stereotyping of homosexuals, under the guise of a determination on 'demeanor,' that we cannot conduct meaningful appellate review of that decision, or of the BIA's opinion essentially adopting it.")

page 53 of 247]

Doe v. Att’y Gen.,956 F.3d 135, 146 (3d Cir. 2020) (adopting Ninth Circuit's analysis): "The absence of a report to police does not reveal anything about a government's ability or willingness to control private attackers; instead, it leaves a gap in proof about how the government would respond if asked, which the petitioner may attempt to fill by other methods." Bringas-Rodriguez, 850 F.3d at 1066 (quoting Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010) (emphasis in original)). [page 55 of 247].

Internal Relocation

Doe v. Att’y Gen.,956 F.3d 135, 154 (2020) "The IJ found that there was no indication that Petitioner ‘would not be safe from his family if he relocated to another part of Ghana.’ JA25. That finding is based on unreasonable presumptions and a misunderstanding or mischaracterization of relevant evidence. Petitioner has reason to believe his father is still looking for him. Nothing in the record suggests that his father cannot travel freely around the country in search of Petitioner. Considering that Ghana's criminalization of same-sex male relationships is country-wide, and that 'widespread homophobia and anti-gay abuse is a human rights problem,, relocation is not an effective option for escaping persecution.’”

[page 63 of 247]

Doe v. Att’y Gen.,956 F.3d 135, 154(2020) "Nor is it a reasonable solution. Relocation is not reasonable if it requires a person to liv[e] in hiding.' Agbor v. Gonzales, 487 F3d 499, 505 (7th Cir. 2007); accord Singh v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018)("The case law is clear that an alien cannot be forced to live in hiding in order to avoid persecution."). To avoid persecution now that he has been outed, Petitioner would have to return to hiding and suppressing his identity and sexuality as a gay man. Tellingly, the !Fs observation, no matter how ill-advised, that Petitioner could avoid persecution and live a 'full life' if he kept 'his homosexuality a secret; JA25, was a tacit admission that suppressing his identity and sexuality as a gay man is the only option Petitioner has to stay safe in Ghana. The notion that one can live a 'full life' while being forced to hide or suppress a core component of one's identity is an oxymoron." 2021 EOIR Legal Training Program Tips Family Ties — Be aware that family relations can become far more complicated when the family does not accept the applicant's or respondent's sexual orientation or gender identity.

[page 64 of 247]

Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (en banc), criticizing panel's overemphasis on laws as opposed to practices; • Many anti-discrimination efforts were at national level and do not necessarily reflect state or municipal practices • Newspaper article in record reported that "review of more than 70 newspapers in 11 Mexican states' revealed an increase from 'an average of nearly 30 killings between 1995 and 2000' to nearly '60 a year between 2001 and 2009' • Panel "falsely equated legislative and executive enactments prohibiting persecution with on-the-ground progress."

[page 66 of 247]

Legal Orientation Program for Custodians of Unaccompanied Children [“LOPC”] begins at page 73.

Unaccompanied Alien Children and Juveniles: Relief and Reporting Requirements begins at page 83.

A chart of definitions is at page 85:

  • Child: an unmarried individual under the age of 21.INA §§ 101(b)(1), (c)(1). Most relevant to visa petitions, adjustment of status, and cancellation of removal for non-permanent residents.
  • Juvenile: an individual less than 18 years of age. 8 C.F.R. § 1236.3(a).
  • Unaccompanied Alien Child (UAC): has a special meaning under the TVPRA and Homeland Security Act. 6 U.S.C. § 279(g)(2); 8 U.S.C. § 1232(g).
  • Special Immigration Juvenile (SIJ): an immigration classification available to certain individuals under the age of 21 who have been abused, abandoned or neglected and meet other requirements. INA § 101(a)(27)(J)(i).
  • Minor: the regulations mention the term "minor" in the context of rules governing service of process and in absentia orders for individuals under the age of 14. 8 CFR section 236.2(a).

Matter of M-A-C-O-, 27 l&N Dec. 477 (BIA 2018) ("An Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.") [pages 91 and 92]

Bars to Relief for Juveniles

“Criminal bars continue to be the biggest exclusion to relief, except: • A juvenile is not inadmissible if the crime was committed under age 18 and more than 5 years prior to the application for entry and visa. INA § 212(a)(2)(A)(ii)(I). • An act on the part of the juvenile results in delinquency determination, which is not a crime and therefore renders respondent not inadmissible. Matter of Ramirez Rivero, 18 I&N Dec. 135 (BIA 1981); 22 C.F.R. § 40.21(a)(2) We look to the Federal Juvenile Delinquency Act at 18 U.S.C. section 5031-50 to determine whether the result is delinquency or conviction.”

[page 113 of 247]

Hypothetical 1: Immigration Judge Brad Burgundy is presiding over a juvenile master calendar docket at the Miami Immigration Court. A 12-yr-old UAC tells him that he has not attended school in 4 months and works two jobs to help his sponsor pay rent. • Is Judge Burgundy required to report? [page 129 of 247]

Identification and Referral of Potential Child Abuse and/or Neglect Victims before EOIR, dated May 23, 2017 begins at apge 151 of 247. A Table of Contents is at page 152.

Page 166 features a chart of State laws: Alabama- Wyoming.

Identification and Referral of Potential Trafficking Victims or Traffickers before EOIR, dated April 27, 2015 begins at page 190 of 247. Table of Contents is at page 191.

UCs and Juveniles in Removal Proceedings begins at page 199.

Sarovia v. Sessions, 2017 WL 5569838 (N.D. Cal. 2017) (class-action: certain UACs released from ORR custody and re-arrested by ICE have a right to a hearing before an IJ on the basis for re-arrest). [page 210 of 247]

  • In March 2021, the Government entered into a Settlement Agreement requiring EOIR to continue to provide Saravia hearings in accordance with the Agreement's terms to any new class members for the next five years. • The following individuals may request a Sara via bond hearing: • Minor aliens apprehended by DHS, • Who are placed with ORR and then released to a sponsor or parent, • Who are subsequently re-arrested by DHS and taken into custody based partly on allegations of gang affiliation. [page 210 of 247]

Rights of UACs

  • In immigration court, UACs are entitled to certain rights and benefits under the TVPRA: • Asylum Jurisdiction: UACs are entitled to a non-adversarial adjudication of their asylum claim before USCIS even if in removal proceedings. INA § 208(b)(3)(C). • Asylum One Year Bar: One year bar does not apply to asylum applications filed by UACs. INA § 208(a)(2)(E). • Asylum Safe-Third Country Limitation: Safe-third country limitation does not apply to asylum applications filed by UAC. [page 220 of 247]

Kim memo of 2013

J.O.P. v. U.S. DHS, 409 F. Supp. 3d 367, 375-80 (D. Md. 2019) (TRO against USCIS's 2019 revision of 2013 Kim Memo) • In the Kim Memo, USCIS declared that an alien once determined by DHS to be an unaccompanied alien child (UAC) would be considered a UAC indefinitely for the purpose of adjudication of asylum applications by USCIS. Id. at 374. The 2019 revision permitted USCIS to redetermine an asylum applicant's UAC status at the time the application is filed, and consequently, to redetermine its jurisdiction to adjudicate the application under the TVPRA. Id. In issuing its TRO, however, the court found it likely "that the redetermination policy violates the [Administrative Procedure Act (APA)] because the agency failed to go through required notice-and-comment procedures and failed to consider reliance interests created by the 2013 Kim Memo." Id. at 376. The court later converted the TRO into a preliminary injunction against USCIS on October 15, 2019. J.O.P. v. U.S. Dep't of Homeland Sec., No. GJH-19-1944, 2020 WL 2932922, at *1 (D. Md. June 3, 2020). [page 226 of 247]

Memorandum from Jean King to James R. McHenry, dated 9-19-17 about EOIR’s authority concerning the term “UAC” begins at page 231.

Operating Policies and Procedures Memorandum (OPPM) 17-03 concerning Guidelines for Juveniles, dated 12-20-17, begins at page 240 of 247.

Comments of the author

Doe v. Att’y Gen.,956 F.3d 135, 146 (3d Cir. 2020) was cited five times, at pages 45, 48, 55, 63, and 64, for different propositions of law.

Matter of M-A-C-O-, 27 I&N DEc. 477 (BIA 2018)is cited at pages 91, 92, 224, and 225.


About The Author

David L. Cleveland was the Chair of the AILA Asylum Committee [2004-05] and has secured asylum or withholding for persons from 48 countries. Based in Washington DC, he is available at <1949.david@gmail.com>


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