Being Deprived of the Right to Effective Counsel in Removal Proceedings: Why the Eighth Circuit’s Decision in Rafiyev Must Be Overturned

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter of Lozada. Second, I will discuss the Eighth Circuit’s treatment of ineffective assistance of counsel in removal proceedings and how it compares with its sister circuits. Third, I will argue that the Eighth Circuit has erred in this area of the law and should join the vast majority of other circuits in the country by holding that there is a constitutional due process right to effective counsel in immigration proceedings. Finally, I will present a strategy that a future Eighth Circuit panel could use to overrule its previous decisions

The Toll Paid When Adjudicators Err: Reforming Appellate Review Standards for Refugees

Deep, variegated, and unresolved tensions run between and within the U.S. courts of appeals’ standard of review classifications of the five core elements of the refugee definition. Several circuits have taken note of their dissonant jurisprudence, calling for either en banc or Supreme Court intervention. While existing scholarship raises cogent criticisms of excessive factual deference in U.S. immigration adjudications, very little attention has been paid to how the fact-law divide regarding the refugee definition maps onto review standards in the appellate context. This dearth of scholarly consideration is accompanied by the reality that standards of review often decide cases where the risk of erroneous denial involves the return of a putative refugee to persecution, torture, or death. In this article, I provide the first comprehensive circuit-by-circuit study of each of the five core elements of the refugee definition to show the depth of disagreement related to standards of review. Notwithstanding the high stakes involved in reviewing asylum denials, and the inherent difficulty in obtaining remand when the deferential fact-based standard is applied, confusion prevails in how to catalog each discrete element. Given well-documented deficiencies in agency fact-finding, it is of paramount importance that asylum seekers receive nondeferential review of their case denials as capaciously as the law permits. Yet, my original research reveals that U.S. appellate courts often vacillate over how to treat each element, or misclassify as factual issues that are actually legal. The present state of affairs is unacceptably incongruous with the humanitarian ethos undergirding asylum and refugee law. Courts must not forget what is at stake each time they wrongly deny a meritorious asylum application. It is in light of this toll paid when courts err, that I advance an approach that could harmonize the courts of appeals’ disparate case law. I posit that application of the plenary nondeferential, mixed-question standard of review—anchored in recent U.S. Supreme Court jurisprudence—offers a framework most likely to provide refugees with more searching review and thereby reduce the likelihood that bona fide claims are errantly rejected

Being Deprived of the Right to Effective Counsel in Removal Proceedings: Why the Eighth Circuit’s Decision in Rafiyev Must Be Overturned

The situation for immigrants who have received frightfully defective assistance from their attorneys, or non-attorneys masquerading as such, is all too common. For the reasons discussed more fully in this article, immigrant victims are at particular risk in tribunals beneath the Eighth Circuit because of its aberrant precedent in the area of ineffective assistance of counsel in immigration proceedings. In this article, I will first provide an overview of the procedure for making a claim for ineffective assistance of counsel in removal proceedings and give a brief history of this procedure as used since the Board’s seminal decision in Matter of Lozada. Second, I will discuss the Eighth Circuit’s treatment of ineffective assistance of counsel in removal proceedings and how it compares with its sister circuits. Third, I will argue that the Eighth Circuit has erred in this area of the law and should join the vast majority of other circuits in the country by holding that there is a constitutional due process right to effective counsel in immigration proceedings. Finally, I will present a strategy that a future Eighth Circuit panel could use to overrule its previous decisions

Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis

For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory for refugees on the question of the duress defense to the bar, that decision is under review by the AG. Additionally, more work is needed to solidify capacious procedural safeguards in the application of the bar ab initio before adjudicators even reach questions of duress. Safeguards are crucial because the current procedures allow adjudicators to apply the bar merely where there is possible assistance in persecution. Given the dearth of past scholarly attention devoted to procedural application of the persecutor bar, this article aims to contribute to this nascent, timely, and largely-untouched discussion. I argue here that it is only where the record contains a preponderance of the evidence to allow an adjudicator to find actual assistance in persecution -- and the applicant is given fair notice and opportunity to respond--that the statute, case law, and international law allow the persecutor bar to be applied

Dismantling the Wall

In this Essay, we will summarize the status quo of this crisis. We will highlight warning signs that began to appear even before the Trump Administration to understand how we reached this point. We will then propose solutions to chart a pathway forward, exploring strategies for implementing lasting reforms aimed at tearing down this administrative wall and replacing it with a more fair and welcoming system

Unwilling or Unable? The Failure to Conform the Nonstate Actor Standard in Asylum Claims to the Refugee Act

Pursuant to its obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” For decades, both the Board of Immigration Appeals and federal courts recognized that individuals could obtain asylum based on a fear of persecution at the hands of nonstate actors, so long as the applicant demonstrated that their government was “unable or unwilling” to control the persecution. As part of a wide-ranging attack on asylum, the Trump administration has sought to eliminate asylum based on nonstate actor persecution. In June 2018, the Attorney General (“AG”) issued a sweeping decision, Matter of A-B-, vacating a 2014 decision in which the Board of Immigration Appeals had held that those fearing domestic violence could obtain asylum relief. Among other things, the decision heightened the nonstate actor standard, requiring that applicants not only show that their governments were “unwilling or unable” to control the persecution, but also that the governments “condoned” or were “completely helpless” to stop the persecution. After Matter of A-B- was decided, federal courts have disagreed as to which standard to apply, or, indeed, whether the two tests differ at all. Courts in some circuits found the two standards to be different and held that the change to heighten the nonstate actor test was arbitrary and capricious. Other courts held that the condone-or- completely-helpless formulation was merely a permissible interpretation of the familiar unwilling-or-unable standard. In response, on January 14, 2021, the Acting AG issued Matter of A-B- II, redoubling the defense of the condone-or-complete-helplessness articulation and evoking the agency’s Chevron and Brand X authority to combat decisions from the courts of appeals that had rejected Matter of A-B- I. The Acting AG claimed that the condone-or-complete-helplessness articulation was not a departure from the older unable-or-unwilling test, but he argued that even if it was a change in policy, it constituted a reasonable construction of the ambiguous statutory term “persecution.” In his elaboration of the condone-or-complete-helplessness standard, however, the Acting AG revealed that the new test is vastly more difficult to satisfy. He concluded that any state effort to protect victims—including even the most minimal effort—is sufficient to deny asylum protections. This Article provides the first systematic analysis of the impact of the heightened nonstate actor test in cases before both the Board of Immigration Appeals and federal courts. We argue that the two tests are, in fact, different by analyzing the plain language they employ as well as the divergent case outcomes they have produced. Then, rather than ground the nonstate actor standard in the term “persecution,” we anchor the standard in the statutory language defining refugees as those who are “unable or unwilling to avail [themselves] . . . of [state] protection,” a strangely ignored part of the U.S. asylum statute and international treaty. This novel theory has yet to be considered by the courts, but it demonstrates that the unwilling-or-unable test is the correct one. The heightened condone-or-complete-helplessness standard, by contrast, is antithetical to the protections afforded by the statute and treaty and poses an insurmountable hurdle for many of the world’s most vulnerable refugees

Dismantling the Wall

Between 2017 and 2021, the Trump Administration waged an unprecedented battle on U.S. asylum structure, procedure, and substantive law. Seeking to alter long-standing legal principles and practices in a host of areas, the former administration’s efforts to demolish asylum protections were systematic and comprehensive. The Immigration Policy Tracking Project cataloged no fewer than ninety-six discrete policy and regulatory changes that the former administration implemented to curtail access to asylum. While some of the administration’s actions, such as the decision to separate children from their parents at the border, were carried out in the open, many other actions were largely hidden from public view. In their totality, scholars have characterized those changes without much hyperbole as the end of asylum in the U.S., a veritable administrative wall to refugees. Despite widespread initial optimism upon the election of a new president and some incremental steps, the Biden Administration has yet to roll back the majority of these changes, let alone take steps to expand access to asylum or increase fairness in the system. Within his first month in office, President Biden promised to undertake a comprehensive review of the U.S. asylum system and promulgate regulations consistent with our international legal obligations within 270 days; however, that deadline has come and gone without any proposed regulations or an explanation for their absence. The contemporary U.S. asylum system was born through the robustly bipartisan 1980 Refugee Act. From that moment to the present, the nation has not witnessed such unmitigated antipathy towards refugees and asylum seekers as during the Trump era. The toll paid by these changes, measured both in human lives and the erosion of our national values, is staggering. Yet, the fissures revealed by this unparalleled period of restriction of access to asylum can guide us both in understanding the extent of the present asylum crises and in knowing how best to move forward. Through all its bluster about building a physical wall along the southern border to keep refugees and other immigrants out, the Trump Administration succeeded in erecting an administrative wall, preventing countless bonafide refugees from seeking or obtaining the protection for which they are eligible. To date, that wall has not been taken down. At best, the Biden Administration has tinkered with this barrier to refugees, and at worst, it has deliberately left some sections standing. In this Essay, we will summarize the status quo of this crisis. We will highlight warning signs that began to appear even before the Trump Administration to understand how we reached this point. We will then propose solutions to chart a pathway forward, exploring strategies for implementing lasting reforms aimed at tearing down this administrative wall and replacing it with a more fair and welcoming system

Statistical Theory of Asteroid Escape Rates

Transition states in phase space are identified and shown to regulate the rate of escape of asteroids temporarily captured in circumplanetary orbits. The transition states, similar to those occurring in chemical reaction dynamics, are then used to develop a statistical semianalytical theory for the rate of escape of asteroids temporarily captured by Mars. Theory and numerical simulations are found to agree to better than 1%. These calculations suggest that further development of transition state theory in celestial mechanics, as an alternative to large-scale numerical simulations, will be a fruitful approach to mass transport calculations