Introduction In 2017, while Matter of L-E-A-1 was pending before the BIA, I attended an immigration law conference at which Professor Jon Bauer posed the following “thought experiment”: A Nazi official threatens to kill all the Jews in a town unless a Jewish criminal, who has committed several robberies and murders and is suspected to be hiding in the area, is turned over to the authorities or turns himself in. Is this persecution on account of religion? The answer is obviously yes. Those in the town find themselves at risk of persecution on account of their religion. It would seem impossible ..read more

For Immigration Judges, country experts serve as the lens through which a confusing jumble of evidence becomes a clearer picture. No judge can be an expert on all countries; it is therefore by way of the country expert’s testimony that a determination can be made as to whether the asylum seeker’s predicament is a unique or a common one; a dispute is merely personal or possesses a political dimension; the home country’s government is truly likely to provide adequate protection; and why relocating within the country may or may not be reasonable. However, Immigration Judges are provided remarkabl ..read more

I’m sure many of you remember a childhood game called “Mother, May I?” An authority figure would say, “Jeff, take two giant steps forward!” But before doing so, the player would have to ask “Mother, may I?” Those two giant steps could only be taken if the response was “Yes, you may.” Otherwise, if the player took the steps, they were out. If we were to take this game, direct the request and reply through an app called CBPOne, and make the stakes life or death, the result would be something very similar to the Biden Administration’s latest regulations governing asylum at the southern border. Th ..read more

“Those of us who care about people on the wrong side of history just have to help case by case, person by person.” - Anne Pilsbury, quoted in Francisco Goldman, “Escape to New York,” The New Yorker, Aug. 9, 2016. Anne Pilsbury is well; she continues to work at Central American Legal Assistance (“CALA”), the organization she founded almost four decades ago. She was recently awarded the Carol Weiss King Award by the National Immigration Project of the National Lawyers Guild. She remains most generous in sharing her knowledge with the immigration law community in New York. However, as of January ..read more

Back in August, the BIA issued Matter of Fernandes,1 the latest installment in the ongoing saga of Pereira v. Sessions.2 Four years after Pereira, Fernandes established that a timely challenge to a defective Notice to Appear will have immediate consequences. Unfortunately, the decision left unclear what those consequences might be. Months later, confusion abounds whenever the issue arises in Immigration Court. To provide some background, shortly after the Supreme Court issued its decision in Pereira in 2018, holding that a Notice to Appear in which DHS has not included the time and date of hea ..read more

I would like to discuss a concept related to asylum, involving protection under Article 3 of the U.N. Convention Against Torture (commonly referred to as “CAT” for short). Although lacking the benefits afforded to those granted asylum or admitted as refugees, the importance of CAT as a protection from deportation has increased in recent years due to the complex nature of current asylum claims, which require greater effort to interpret causation than claims that were more commonly decided decades ago. Whereas asylum requires a connection between the persecution and the applicant’s race, religio ..read more

In 1984, the Supreme Court in Strickland v. Washington announced the standard for determining when the Constitution’s Sixth Amendment right to counsel requires the overturning of a criminal conviction due to ineffective assistance of counsel.1 Strickland involved a death penalty case; on its winding path to the Supreme Court, a circuit court panel found in the defendant’s favor. That ruling was later overturned; the defendant was executed two months after the Supreme Court’s decision established a standard that the defendant could not satisfy. A commentator writing years later could find no re ..read more

On August 14, the immigration law community lost a true giant. William Van Wyke, a former Immigration Judge, advocate, and scholar unexpectedly passed away. How does one capture William’s essence? I’m going to attempt to do so through his own words (in bold), taken from both public sources and emails he wrote to his former Immigration Judge colleagues in conversations after his retirement from the bench. “The fearful and crude ideas get put into practice by reflex; compassionate and thoughtful ones wait around until everyone agrees with them. - William” - April 1, 2021 email. My first real imp ..read more

The Off-Broadway play The Courtroom is now a film; it recently screened as part of the Tribeca Film Festival.  I think it is excellent, and would highly recommend that all those interested in immigration law see it.  As you might know, the film depicts the actual immigration court case that culminated on appeal in the Seventh Circuit’s 2012 precedent decision in Keathley v. Holder.1 While there is so much artistic talent to applaud among the film’s cast (especially the excellent Kristin Villanueva as the respondent, Elizabeth Keathley), director Lee Sunday Evans, and Arian Moayed (wh ..read more

On June 30, the U.S. Court of Appeals for the Fourth Circuit issued a decision that might not have received the attention it deserved.  The end result of the court’s published decision in Herrera-Alcala v. Garland was to affirm an Immigration Judge’s denial of asylum based on a lack of credibility.1 But before reaching the merits, the court addressed a jurisdictional issue, and that is where our interest lies.  At his removal proceeding, the petitioner was detained at a Louisiana correctional facility, which placed him physically within the territory of the Fifth Circuit.  For s ..read more