☠️⚰️ “STORY KILLERS” — TAYLOR LORENZ @ WASHPOST REPORTS ON WORLDWIDE EPIDEMIC OF VIOLENCE AGAINST WOMEN & HOW FEMALE JOURNALISTS ARE PARTICULAR TARGETS FOR ABUSE — Biden Administration Largely MIA, Failing To Effectively Address Systemic Problems For Women Seeking Refuge From Gender-Based Persecution! 

Taylor Lorenz
Taylor Lorenz
Reporter
Washington Post
PHOTO:Taylorlorenz.com

https://www.washingtonpost.com/investigations/2023/02/14/women-journalists-global-violence/

Taylor Lorenz writes:

. . . .

The ordeal of Farooqi, who covers politics and national news for News One in Pakistan, exemplifies a global epidemic of online harassment whose costs go well beyond the grief and humiliation suffered by its victims. The voices of thousands of women journalists worldwide have been muffled and, in some cases, stolen entirely as they struggle to conduct interviews, attend public events and keep their jobs in the face of relentless online smear campaigns.

Stories that might have been told — or perspectives that might have been shared — stay untold and unshared. The pattern of abuse is remarkably consistent, no matter the continent or country where the journalists operate.

Farooqi says she’s been harassed, stalked and threatened with rape and murder. Faked images of her have appeared repeatedly on pornographic websites and across social media. Some depict her holding a penis in the place of her microphone. Others purport to show her naked or having sex. Similar accounts of abuse are heard from women journalists throughout the world.

. . . .

This article is part of “Story Killers,” a reporting project led by the Paris-based journalism nonprofit Forbidden Stories, which seeks to complete the work of journalists who have been killed. The inspiration for this project, which involves The Washington Post and more than two dozen other news organizations in more than 20 countries, was the 2017 killing of the Indian journalist Gauri Lankesh, a Bangalore editor who was gunned down at a time when she was reporting on Hindu extremism and the rise of online disinformation in her country.

New reporting by Forbidden Stories found that shortly before her slaying, Lankesh was the subject of relentless online attacks on social media platforms in a campaign that depicted her as an enemy of Hinduism. Her final article, “In the Age of False News,” was published after her death.

. . . .

Until news organizations recognize the purpose of harassment campaigns and learn to navigate them appropriately, experts say, women will continue to be forced from the profession and the stories they would have reported will go untold.

“This is about terrifying female journalists into silence and retreat; a way of discrediting and ultimately disappearing critical female voices,” Posetti said. “But it’s not just the journalists whose careers are destroyed who pay the price. If you allow online violence to push female reporters out of your newsroom, countless other voices and stories will be muted in the process.”

“This gender-based violence against women has started to become normal,” Farooqi said. “I talk to counterparts in the U.S., U.K., Russia, Turkey, even in China. Women everywhere, Iran, our neighbor, everywhere, women journalists are complaining of the same thing. It’s become a new weapon to silence and censor women journalists, and it’s not being taken seriously.”

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“Not being taken seriously” aptly describes the attitude and actions of the Biden Administration toward some women seeking asylum on the basis of gender-based violence. Certainly, our Government could and should do better at recognizing and prioritizing refugee and asylum status for this vulnerable group.

Recently, I published a “happy ending” story from my friends over at the GW Law Immigration Clinic, involving an Afghan female attorney granted asylum by the Arlington Asylum Office. https://immigrationcourtside.com/2023/02/15/🗽🇺🇸-i-hope-to-rebuild-my-life-here-i-cant-save-my-country-but-i-can-save-myself-and-my-family-gw-law-immigration-clinic-asylum-laws-save-another-l/

Yet, even this “slam dunk” case took nearly six months to adjudicate. Seems like it could and should have been granted at the interview in a well-functioning system. Better yet, most Afghan refugees could have been screened overseas and admitted in legal refugee status, thus avoiding the backlogged asylum system and freeing both USG and private bar resources for more difficult cases. 

My friend and Round Table colleague Judge Joan Churchill and the National Association of Women Judges have petitioned the Biden Administration to offer refuge to as many as 250 Afghan female judges whose lives are in grave danger. https://immigrationcourtside.com/2021/08/19/🗽⚖️human-rights-immigration-judges-speak-out-for-afghan-women-judges-national-association-for-women-judges-call-to-protect-courageous-afghan-women-featured-in-was/

Yet, I am aware of no guidance, precedent, or directives recognizing refugee status or directing grants of asylum for Afghan women. In the meantime, several European nations have determined that all women who have fled Afghanistan can qualify as refugees. See, e.g., https://www.hrw.org/news/2023/02/09/denmark-sweden-offer-protection-all-women-girls-afghanistan.

Once, America was in the forefront of setting precedents that protected female refugees. See, e.g., Matter of Kasinga, 21 I&N Dec. 357 (1996) (FGM, opinion by Schmidt, Chair). Now, not so much, despite our nation’s heavy involvement with Afghanistan. Apparently, the “powers that be” are afraid that consistently and aggressively supporting refugee protection for women fleeing Afghanistan and other dangerous countries would “encourage” them to actually seek legal protection here thereby upsetting right-wing nativists and misogynists.

Mexico is one of the most dangerous countries in the world for both journalists and women. See, e.g.,  https://monitor.civicus.org/updates/2022/05/10/mexico-vicious-attacks-against-women-journalists-and-hrds-continue/. 

Yet, incredibly, the Biden Administration proposes to send up to 30,000 rejected NON-MEXICAN border arrivals per month to Mexico without fair examination of their potential asylum claims. To date, BIA precedents, regulations, and policy statements have NOT recognized the well-documented, clear and present dangers for journalists, women, and particularly female journalists, in Mexico. Consequently, I’d say that there is about a 100% chance that some female journalists seeking asylum will be illegally returned to death or danger, whether in Mexico or their native countries. 

Just can’t make this stuff up. Yet, it’s happening in a Dem Administration!

AG Merrick Garland did vacate former AG Jeff “Gonzo Apocalypto” Sessions’s lawless and misogynistic decision in Matter of A-B-. That action “restored” the BIA’s 2014 precedent decision in Matter of A-R-C-G-, recognizing that gender-based domestic violence could be a basis for granting asylum. 

However, the BIA didn’t elaborate on the many forms that gender-based persecution can take, nor did they provide binding guidance to Immigration Judges on how these cases should be handled in accordance with due process, fundamental fairness, and best practices.

Garland and his BIA have failed to follow up with any meaningful guidance or amplification of A-R-C-G- for Immigraton Judges. That’s even though many women fleeing Latin America come from countries where gender-based violence is rampant and the governments make little or no effective efforts to control it — sometimes police and other corrupt officials even join in the abuses. 

Consequently, life or death protection for female asylum seekers remains a disgraceful and wholly unacceptable “crap shoot.” Outcomes of well prepared and copiously documented asylum cases often depend more on the attitude of the Immigration Judge or BIA Appellate Judge hearing the case than on the law and facts. 

Also, without a knowledgeable lawyer, which the Government does not provide, an applicant has virtually no chance of winning a gender-based protection case in today’s EOIR. Additionally, those in immigration detention or placed on Garland’s “accelerated/dedicated” dockets are known to have particular difficulty obtaining pro bono counsel.

Anti-asylum IJs, some of whom were known for their negative attitudes toward female asylum seekers — many of those who actually “cheered” Sessions’s biased and wrong reversal of hard-won asylum protection for women in EOIR courts — remain on the bench under Garland at both levels. 

To their credit, some have changed their posture and now grant at least some gender-based cases. But, others continue to show anti-asylum, anti-female bias and deny applications for specious reasons, misconstrue the law, or just plain use “any reason to deny” these claims, without any fear of consequences or meaningful accountability. 

Trial By Ordeal
Many advocates and experts would say that female asylum applicants still face “trial by ordeal” in Garland’s “overly Trumpy” EOIR. Despite campaign promises, the Biden Administration has done little to champion the cause of gender-based refugees and asylum seekers — at the Southern Border or elsewhere.  Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160

Whether or not such egregious errors and non-uniform applications of asylum law get reversed at the BIA again depends on the composition of the BIA “panel” assigned to the case. (Not all “panels” have three Appellate Judges; some are “single member” panels). Significantly, and inexplicably, a group of Trump-holdover BIA Appellate Judges known for their overt hostility to asylum applicants (with denial rates approaching 100%) and their particular hostility to gender-based claims, remains on the BIA under Garland. There, they can “rubber stamp” wrong denials while sometimes even reversing correct grants of protection by Immigration Judges below! Talk about a broken and unfair system!

With an incredible backlog of 2.1 million cases, approximately 800,000 of them asylum cases, wrongly decided EOIR cases can “kick around the system” among the Immigration Courts, the BIA, and the Circuits for years. Sometimes, a decade or more passes without final resolution! Imagine being a pro bono or “low bono” attorney handling one of these cases! You “win” several times, but the case still has no end. And, you’re still “on the hook” for providing free legal services.  

It’s no wonder that, like his predecessors over the past two decades, Garland builds EOIR backlog exponentially — without systematically providing justice or instituting long overdue personnel and management changes! It’s also painfully clear that, also like their predecessors, Garland and his political lieutenants have never experienced the waste and frustrations of handling pro bono litigation before the dystopian “courts” they are now running into the ground!

Meanwhile, Biden’s promise and directive that his Administration promulgate regulations containing standards for gender-based asylum cases that would promote fairness and uniformity within his OWN courts and agencies remains unfulfilled — nearing the halfway point of this Administration! Apparently, some politicos within the Administration are more fearful of predictable adverse reactions from right-wing nativists and restrictionists than they are anxious to “do the right thing” by listening to the views of the experts and progressives who helped put them in office in the first place! 

Thus, abused women and other refugees and asylum seekers, and their dedicated supporters, many of whom have spent “professional lifetimes” trying to establish the rule of law in these cases, face a difficult conundrum. In America today, neither major political party is willing to stand up for the legal and human rights of refugees, particularly women fleeing gender-based persecution. 

As an “interested observer,” it seems to me that something’s “got to give” between so-called “mainstream Dems” and progressive immigration/human rights advocates. The latter have devoted too much time, energy, courage, and expertise to “the cause” to be treated so dismissively and disrespectfully by those they are “propping up.” And, that includes a whole bunch of Biden Administration politicos who were nowhere to be found while immigration advocates were fighting, often successfully and against the odds, on the front lines to save democracy during the “reign of Trump.” 

That was a time when immigrants, asylum seekers, people of color, and women were the targets for “Dred Scottification” before the law. I have yet to see the Biden Administration, or the Dem Party as a whole, take a strong “active” stand (rhetoric is pretty useless here, as the Administration keeps demonstrating) against those who would use misapplications of the law, ignoring due process, demonization, and refusal to recognize the humanity of migrants as their primary tool to undermine and ultimately destroy American democracy!

Immigrants, including refugees, are overall a “good story” — indeed the real story of America since its founding. That Dems can’t figure out how to tell, sell,  advance, and protect the immigrant experience that touches almost all of us is indeed a national tragedy.

🇺🇸 Due Process Forever!

PWS

02-18-23

🔮PROPHETS: MORE THAN SEVEN MONTHS AGO, “SIR JEFFREY”🛡 & I SAID IT WOULD TAKE MORE THAN HOLLOW PROMISES IN AN E.O. TO BRING JUSTICE  FOR VICTIMS OF GENDER VIOLENCE! — Sadly, We Were “Right On” As This Timely Lament From CGRS Shows!

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law
Blaine Bookey
Blaine Bookey
Legal Director
Center for Gender & Refugee Studies @ Hastings Law
Photo: CGRS website

The problem is very obvious: The “practical scholars” and widely respected international experts in asylum law who should be drafting gender-based regs and issuing precedents as appellate judges @ EOIR remain “frozen out” by Garland and the Biden Administration. Meanwhile, those who helped carry out the Miller/Sessions misogynistic policies of eradicating asylum protection for women of color not only remain on the bench but still empowered by Garland to issue controlling interpretations of asylum law. 

https://cgrs.uchastings.edu/sites/default/files/Deadly%20Inertia%20-%20PSG%20Regs%20Guide_Feb.%202022.pdf

Deadly Inertia: Needless Delay of “Particular Social Group” Regulations Puts Asylum Seekers at Risk

February 10, 2022

On February 2, 2021, President Biden issued an executive order (“EO”) which directed executive branch agencies to review and then take action on numerous aspects of our shattered asylum system.1 Of particular interest to the Center for Gender & Refugee Studies (CGRS), and many asylum seekers, legal experts, and allies, was a provision ordering the Departments of Justice and Homeland Security to conduct a comprehensive examination of whether U.S. treatment of asylum claims based on domestic or gang violence is consistent with international standards, and to propose a joint rule on the meaning of “particular social group,” as that term is derived from international law (emphasis added).2

The deadlines set by the President – August 1, 2021 for the examination of current law on domestic violence and gang claims, and October 30, 2021 for the proposed regulations on particular social group – have come and gone. We are concerned that the administration has offered no indication of its progress on what should be a simple task, given that international law and authoritative international standards on particular social group are clear.3

This reference guide explains why regulations on particular social group are important, why this legal issue has become so contentious, and why there is no good reason for the delay in proposing regulations. We point out that there is a clear path forward for the United States to realign its treatment of asylum claims with established international standards, which is precisely what the EO mandates.

Why are regulations on particular social group important?

While “particular social group” may sound like an arcane topic in the notoriously complex area of asylum law, there is a reason it merited the President’s attention in an EO signed just two weeks after he took office.4 Persecution on the basis of membership in a particular social group is one of only five grounds for refugee status in U.S. and international law and has become the most hotly contested asylum law issue in the United States.

Why has particular social group jurisprudence become so contentious in the United States?

First, the phrase “particular social group” is less intuitively clear than the other grounds for asylum of race, religion, nationality, and political opinion. This ground is understood to reflect a desire on the part of the treaty drafters – and U.S. legislators who incorporated the international refugee definition into our own immigration law – to protect those who don’t fit neatly into the other four categories, and to allow asylum protection to evolve in line with our understanding of human rights. Such refugees might include, for example, women fleeing domestic violence, or LGBTQ+ people persecuted because they do not conform to social norms regarding sexual orientation or gender identity. They might be people fleeing violent retaliation by criminal gangs because they

200 McAllister Street | San Francisco, CA 94102 | http://cgrs.uchastings.edu

reported a crime or testified against a gang member. Or they might simply be related to someone who has defied a gang, and that alone makes them a target.

These people are clearly facing enormous harm, and equally clearly belong to a particular social group under a correct interpretation of the law. 5 But merely belonging to a particular social group does not result in being granted asylum. Only if a person meets all the other elements of the refugee definition, including the heavy burden of showing their group membership is a central reason they will be targeted, will they obtain protection in the United States.

Second, some policymakers and adjudicators fear that if particular social group claims qualify for protection, the “floodgates” will open. The Department of Justice’s Board of Immigration Appeals (BIA) established the legal test for particular social group in 1985 in Matter of Acosta (see below).6 But beginning in 2006, the BIA altered the Acosta test by imposing additional requirements that are nearly impossible to meet.7 The result is that with only one exception, no new particular social groups from any country, no matter how defined, have been accepted in a published BIA decision since that time.

But there is no evidence to support the “floodgates” concern. Decades ago, when women who fled female genital cutting/mutilation were first recognized as a particular social group, some people argued that the United States would be inundated with such claims.8 Those fears never materialized. History shows, and the governments of both the United States and Canada acknowledged at the time, that acceptance of social group claims does not lead to a skyrocketing number of applicants.9

Third, asylum law, including the legal interpretation of particular social group, has been politicized. As part of an overtly anti-immigrant agenda, some politicians have seized upon the floodgates myth to promote increasingly restrictive policies and legal interpretations that depart from international standards. Politically oriented interference with asylum law reached new lows under the previous administration, most notably in 2018 when former Attorney General Sessions overruled his own BIA to issue his unconscionable decision in Matter of A-B-.10

Matter of A-B- was so widely reviled and justly condemned that all major Democratic candidates seeking their party’s presidential nomination in the last election promised to reverse the decision. Doing so was part of candidate Biden’s campaign platform.11 As President he made good on this promise by including the legal questions of domestic violence, gang brutality, and particular social group in the February 2021 EO.

Furthermore, and very much to his credit, Attorney General Garland granted CGRS’s request as counsel to vacate Matter of A-B- in June 2021.12 The law now stands as it did before Sessions’ unlawful interference, with the key precedent case Matter of A-R-C-G-13 recognizing a certain defined particular social group that may provide the basis for asylum for some domestic violence survivors.

However, as explained above, the problem goes beyond Sessions’ decision in Matter of A-B- and stretches back at least as far as 2006, when the BIA began to encumber particular social group claims with additional legal hurdles. As correctly noted in the EO, it is necessary to assess whether U.S. law concerning not only domestic and gang violence claims, but all claims based on particular

2

social group, is consistent with international law. Fortunately there is ample international guidance, which is itself largely based on Acosta, on this exact question.

So why the delay in proposing new regulations?

We can think of no good reason for the agencies’ delay in proposing new regulations on particular social group. From the perspective of both binding international law and authoritative international standards, each of which are named as the framework for particular social group regulations in the EO, the legal analysis is not at all complicated.

To begin with, this is not a new area of the law. The Convention Relating to the Status of Refugees, the source of the refugee definition in which the phrase appears, was drafted in 1951. Our domestic law followed suit in the 1980 Refugee Act. As noted above, the key BIA precedent case interpreting particular social group, Matter of Acosta, was decided in 1985.14 The UN Refugee Agency’s (UNHCR) guidelines on particular social group, which adopt Matter of Acosta, were issued 20 years ago, in 2002.15

Making the job of proposing regulations even simpler, international guidance is clear. It is critical to note that as an inter-governmental organization, UNHCR routinely takes the concerns of governments, including the United States, into account in crafting its legal advice. UNHCR’s guidelines on particular social group were drafted only after a thorough review of State practice, including U.S. law, and an extensive process of external expert consultations with government officials and judges in their personal capacities, academics, and practitioners.16 The consultations process began with a discussion paper on particular social group drafted by a leading U.S. scholar who had previously served as Immigration and Naturalization Service General Counsel.17

How should the United States interpret particular social group to be consistent with international law?

The United States should adopt the “immutability” standard that the BIA set forth in Matter of Acosta, with an alternative – not additional – test of “social perception” which was initially developed by courts in Australia.18 The Acosta test rests on the existence of immutable or fundamental characteristics such as gender to determine whether there is a particular social group. What must be discarded are the BIA’s extraneous requirements of “particularity” and “social distinction.” They have no basis in international law, are not consistent with international standards, are not compelled by the text of the statute, and are not coherent or internally logical. They have themselves spawned an enormous number of confused and confusing cases, including at the federal courts of appeals level, as judges attempt to apply them to real world cases.19

Key Democratic members of Congress with deep knowledge on refugee issues have taken this position, which is consistent with UNHCR’s views. The Refugee Protection Act of 2019, for example, reflects international guidance in its clarification of particular social group.20 Then-Senator Kamala Harris was one of the bill’s original cosponsors.

Additionally, in response to the EO, U.S. and international legal experts have explained that Matter of Acosta provided a workable test, that the BIA’s additional requirements distorted U.S. law in violation

3

of international standards, and that a return to Acosta would be consistent with international standards and offer an interpretation most faithful to the statutory text.21

Why does it matter?

Lives hang in the balance. Women who have survived domestic violence, and all other asylum applicants who must rely on the particular social group ground, are stuck on a deeply unfair playing field. Existing law, even with the vacatur of Matter of A-B-, gives far too much leeway for judges to say no to valid claims. For people wrongly denied protection, deportation can be a death sentence.22

We are concerned that the delay in proposing particular social group regulations reflects an unwillingness on the part of some key actors within the administration to accept that the United States is bound by international law and should realign itself with international standards. The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

1 Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Feb. 2, 2021, 86 Fed. Reg. 8267 (Feb. 5, 2021).

3 Instead, on the one-year anniversary of the EO, USCIS Director Ur Jaddou held a virtual briefing on USCIS’s progress on this and three other immigration-related EOs, but provided no substantive details.

4 The EO otherwise encompasses the enormous operational, logistical, foreign policy, development, and other challenges required to create a comprehensive regional framework to address root causes, manage migration throughout North and Central America, and provide safe and orderly processing of asylum seekers at the U.S. border.

5 For example, when Harold Koh, a senior State Department advisor, resigned in October 2021 in protest over the expulsion of Haitian and other asylum seekers, he wrote: “Persons targeted by Haitian gangs could easily have asylum claims as persons with well-founded fears of persecution because of their membership in a ‘particular social group’ for purposes of the Refugee Convention and its implementing statute. Indeed, this is precisely the issue that faces the interagency group on joint DOJ/DHS rulemaking pursuant to President Biden’s February 2, 2021 Executive Order, which directed examination of whether

 2 EO, Sec. 4(c) Asylum Eligibility. The Attorney General and the Secretary of Homeland Security shall:

(i) within 180 days of the date of this order, conduct a comprehensive examination of current rules, regulations, precedential decisions, and internal guidelines governing the adjudication of asylum claims and determinations of refugee status to evaluate whether the United States provides protection for those fleeing domestic or gang violence in a manner consistent with international standards; and

(ii) within 270 days of the date of this order, promulgate joint regulations, consistent with applicable law, addressing the circumstances in which a person should be considered a member of a “particular social group,” as that term is used in

8 U.S.C. 1101(a)(42)(A), as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

 4

 the United States is providing appropriate asylum protection for those fleeing domestic or gang violence in a manner consistent with international standards.’” See https://www.politico.com/f/?id=0000017c-4c4a-dddc-a77e-4ddbf3ae0000.

6 19 I&N Dec. 211 (BIA 1985).

7 Stephen Legomsky and Karen Musalo, Asylum and the Three Little Words that Can Spell Life or Death, Just Security, May 28,

2021, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. 8 Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

9 Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates or Call to (Principled) Action?, 14 Va. J. Soc. Pol’y & L. 119, 132-133 (2007), available at: https://repository.uchastings.edu/cgi/viewcontent.cgi?article=1560&context=faculty_scholarship.

10 27 I&N Dec. 316 (A.G. 2018). The applicant was a domestic violence survivor whose asylum claim based on particular social group had been granted by the BIA.

11 “The Trump Administration has … drastically restrict[ed] access to asylum in the U.S., including … attempting to prevent victims of gang and domestic violence from receiving asylum [.] Biden will end these policies [.]” See https://joebiden.com/immigration/.

12 28 I&N Dec. 307 (A.G. 2021). He also vacated other problematic decisions that touched on particular social group and gender claims. See Matter of L-E-A-, 28 I&N Dec. 304 (A.G. 2021); Matter of A-C-A-A-, 28 I&N Dec. 351 (A.G. 2021).

13 26 I&N Dec. 388 (BIA 2014). 14 19 I&N Dec. 211 (BIA 1985).

15 UNHCR, Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/02, available at: https://www.refworld.org/docid/3d36f23f4.html.

16 UNHCR, Global Consultations on International Protection, Update Oct. 2001, available at: https://www.unhcr.org/3b83c8e74.pdf.

17 T. Alexander Aleinikoff, “Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group’”, in Refugee Protection in International Law: UNHCR’s Global Consultations on International

Protection (Feller, Türk and Nicholson, eds., 2003), available at: https://www.refworld.org/docid/470a33b30.html.

18 This is the approach recommended by UNHCR, n.15 above.

19 Legomsky and Musalo, Asylum and the Three Little Words that Can Spell Life or Death, n. 7 above, available at: https://www.justsecurity.org/76671/asylum-and-the-three-little-words-that-can-spell-life-or-death/. See also, Sabrineh Ardalan and Deborah Anker, Re-Setting Gender-Based Asylum Law, Harvard Law Review Blog, Dec. 30, 2021, available at: https://blog.harvardlawreview.org/re-setting-gender-based-asylum-law/.

21 Scholars letter to Attorney General Garland and DHS Secretary Mayorkas, June 16, 2021, available at: https://cgrs.uchastings.edu/sites/default/files/2021.06.16_PSG%20Scholars%20Letter.pdf. See also, letter to Attorney General Garland and DHS Secretary Mayorkas, May 27, 2021, signed by 100 legal scholars discussing the “state protection” element of the proposed regulations, available at: https://cgrs.uchastings.edu/sites/default/files/Law%20Scholars%20State%20Protection%20Letter%205.27.21%20%28FINAL%2 9.pdf.

22 When Deportation Is a Death Sentence, Sarah Stillman, The New Yorker, January 8, 2018, available at: https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-sentence.

             20 The Refugee Protection Act of 2019, Sec. 101(a)(C)(iii) reads: “the term ‘particular social group’ means, without any additional requirement not listed below, any group whose members—

(I) share—

(aa) a characteristic that is immutable or fundamental to identity, conscience, or the exercise of human rights; or (bb) a past experience or voluntary association that, due to its historical nature, cannot be changed; or

(II) are perceived as a group by society.”

See https://www.congress.gov/bill/116th-congress/senate-bill/2936/text?r=4&s=1#toc- idA272A477BC814410AB2FF0E6C99E522F.

      5

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“Sir Jeffrey and Me
“Sir Jeffrey & Me
Nijmegen, The Netherlands 1997
PHOTO: Susan Chase

You can check out what “Sir Jeffrey” and I had to say back in June 2021 here:

https://immigrationcourtside.com/2021/06/22/sir-jeffrey-chase-garlands-first-steps-to-eradicate-misogyny-anti-asylum-bias-eoir-are-totally-insufficient-without-progressive-personnel-changes/

Unfortunately, my commentary then remains largely true today:

Without progressive intervention, this is still headed for failure @ EOIR! A few things to keep in mind.

    • Former Attorney General, the late Janet Reno, ordered the same regulations on gender-based asylum to be promulgated more than two decades ago — never happened!

    • The proposed regulations that did finally emerge along the way (long after Reno’s departure) were horrible — basically an ignorant mishmash of various OIL litigation positions that would have actually made it easier for IJs to arbitrarily deny asylum (as if they needed any invitation) and easier for OIL to defend such bogus denials.

    • There is nobody currently at “Main Justice” or EOIR HQ qualified to draft these regulations! Without long overdue progressive personnel changes the project is almost “guaranteed to fail” – again!

    • Any regulations entrusted to the current “Miller Lite Denial Club” @ the BIA ☠️ will almost certainly be twisted out of proportion to deny asylum and punish women refugees, as well as deny due process and mock fundamental fairness. It’s going to take more than regulations to change the “culture of denial” and the “institutionalized anti-due-process corner cutting” @ the BIA and in many Immigration Courts.

    • Garland currently is mindlessly operating the “worst of all courts” — a so-called “specialized (not) court” where the expertise, independence, and decisional courage is almost all “on the outside” and sum total of the subject matter expertise and relevant experience of those advocating before his bogus “courts” far exceeds that of the “courts” themselves and of Garland’s own senior team! That’s why the deadly, embarrassing, sophomoric mistakes keep flowing into the Courts of Appeals on a regular basis. 

    • No regulation can bring decisional integrity and expertise to a body that lacks both!

As the CGRS cogently says at the end of the above posting:

The EO explicitly expresses a mandate to analyze existing law on domestic and gang violence, and to draft new particular social group regulations, in a manner consistent with international standards. Yet it is possible that the administration, out of a flawed political calculus, will backtrack on this commitment as it has on others, notably the promise to restore asylum processing at the border.

To be clear, if this is the case, it is not because there is a principled legal argument against the relevance of international law. It is because a certain political outcome is desired, and the law will be bent to achieve that result. Administration officials should know that advocates will fight relentlessly if the proposed regulations do not in fact follow the EO’s directive to align U.S. law with authoritative international standards.

If you follow some of the abysmal anti-asylum, poorly reasoned, sloppy results still coming out of Garland’s BIA and how they are being mindlessly defended by his OIL, you know that a “principled application” of asylum law to protect rather than arbitrarily reject isn’t in the cards! Also, as I have pointed out, even if there were a well written reg on gender based asylum, you can bet that the “Miller Lite Holdover BIA” would come up with intentionally restrictive interpretations that many of the “Trump-era” IJs still packed into EOIR would happily apply to “get to no.” 

You don’t turn a “built and staffed to deny in support of a White Nationalist agenda agency” into a legitimate court system that will insure due process and fair treatment for asylum seekers without replacing judges and bringing in strong courageous progressive leaders.

That’s particularly true at the BIA, where harsh misapplications of asylum law to deny worthy cases has been “baked into the system” for years. And, without positive precedents from expert appellate judges committed to international principles and fair treatment of asylum seekers in the U.S., even a well-drafted reg won’t end “refugee roulette.” 

By this point, it should be clear that the Biden Administration’s intertwined commitments to racial justice and immigrant justice were campaign slogans, and not much more. So, it will be up to advocates in the NDPA to continue the “relentless fight” to force an unwilling Administration and a “contentedly dysfunctional” DOJ that sees equal justice and due process as “below the radar screen” to live up to the fundamental promises of American democracy that they actively betray every day!

🇺🇸Due Process Forever!

PWS

02-13-22

⚖️🗽🛡RECOGNIZING WOMEN REFUGEES: Professor Karen Musalo @ ImmigrationProf Blog — Don’t Add A “6th Protected Ground” To The Statute; Get Some Better-Qualified Judges 🧑🏽‍⚖️ Who Will Respect & Follow Existing Law To Protect Those Already Covered, But Wrongfully Denied Refuge By Bad Judging & Restrictionist Policies!

 

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

https://lawprofessors.typepad.com/immigration/2021/03/guest-post-the-wrong-answer-to-the-right-question-how-to-address-the-failure-of-protection-for-gende.html

By Immigration Prof

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The Wrong Answer to the Right Question:  How to Address the Failure of Protection for Gender-Based Claims?

By Professor Karen Musalo, Bank of America Professor of International Law, Director of the Center for Gender & Refugee Studies, UC Hastings

In 1996 I was honored to litigate the first case at the Board of Immigration Appeals (BIA), Matter of Kasinga,[1] that opened the door to protection for women fleeing gender-based harms.  To qualify for recognition as a refugee under U.S. law, an individual must establish “persecution or a well-founded fear of persecution” on account of one of five grounds – “race, religion, nationality, political opinion or membership in a particular social group.”[2]  This definition in the 1980 Refugee Act essentially adopts the standard set forth in the 1951 UN Refugee Convention[3] and its 1967 U.N. Refugee Protocol,[4] which the U.S. ratified in 1968.

The woman seeking asylum in the Kasinga case fled female genital cutting and forced marriage.  In a ground-breaking decision, the BIA ruled that cutting was persecution, and it was “on account of” her membership in a gender-defined social group.  In so ruling, the BIA was following the guidance that UNHCR has issued over a number of years, noting that the absence of gender as a protected ground should not impede protection for women fleeing persecution, because the particular social group ground encompasses gender-defined groups.[5]

The Kasinga decision was a breakthrough for women, and a highwater mark in U.S. adjudicators following international guidance.  It also raised expectations that U.S. law would continue to evolve and extend protection to women fleeing the many forms of gender-based violence to which they are subject.  However, that has not been the case, and there have been retreats from protection across administrations, although undoubtedly we witnessed the most dramatic attempts to end protection in gender claims during the Trump administration, which issued extremely limiting Attorney General decisions, such as Matter of A-B- I,[6] and Matter of A-B- II –[7] as well as regulations[8] – currently enjoined[9]—that explicitly rule out gender-based claims.

The Biden administration has committed itself to reviewing the issue of protection for those fleeing gender-based violence.[10]  As we consider how to remedy the issue, some argue for a legislative amendment to the refugee definition, adding gender as a sixth ground to the statute’s five protected grounds of race, religion, nationality, political opinion and membership in a particular social group.  This is the wrong solution.  It would not only repeat the errors of the past (amending the refugee definition in 1996, discussed below), but it would also fail to adequately protect survivors of gender-based violence.  At the same time, it would lead to the quite foreseeable consequence of leaving many deserving asylum seekers outside the ambit of refugee protection.  It is also likely to signal to other Convention State parties that unless they also add a sixth ground, they could deny protection to women and girls without running afoul of the treaty’s obligations.

In order to prescribe a remedy, one first has to diagnose the illness; in order to understand why the sixth ground solution is wrong, we need to examine what occurred after Kasinga that limited protection in subsequent claims involving women fleeing gender-based persecution. . . . .

**********************

Read the rest of Karen’s outstanding analysis at the link.

Here’s a question from last summer’s “Jeopardy style” final exam in Immigration Law & Policy @ Georgetown Law:

A: Judge Schmidt’s favorite case.

Q: What is Matter of Kasinga?

Happy to say that everyone got that one right! Of course, I wrote the decision in Matter of Kasinga!

Karen’s bottom line: “We should be working to bring the U.S. into compliance with UNHCR’s social group interpretation, rather than surrendering to its flawed interpretation, by adding a sixth ground.”

The key is better Federal Judges, from the Immigration Courts all the way up to the Supremes: Judges who are “practical scholars” in human rights and applied due process; judges who have represented asylum seekers, particularly women, and understand their plight.

This week, President Biden announced the creation of the White House Gender Policy Council. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/03/08/executive-order-on-establishment-of-the-white-house-gender-policy-council/

That’s a nice gesture. But, as I always say, actions are what really counts. So here are actions that Judge Garland can take immediately as Attorney General to finally fulfill the promise of Matter of Kasinga:

  • Vacate the atrocious, misogynist, perversion of asylum law (not to mention facts of record) by Sessions in Matter of A-B-;
  • Appoint some female “practical scholars in human rights” to appellate judgeships on the BIA.

That’s how to really honor Women’s History Month!

To understand the human impact of Sessions’s grotesque misconstruction of asylum law and the relevant facts in Matter of A-B-, check out this video short featuring Karen and others along with Ms. A-B-:   https://www.youtube.com/watch?v=QRQpXRWlQL0

I generally agree with Karen’s concerns about specific gender-based legislation potentially having an unintended negative effect. That is certainly the fate of past unsuccessful attempts to include gender-based asylum in the regulations.

They essentially were “hijacked” by DOJ litigators and enforcement-oriented policy officials looking for ways to facially appease women’s rights groups, while actually proposing to restrict eligibility and make it easier for OIL and the SG’s Office to defend denials of asylum. They also sought to create hyper-technical requirements that would have effectively made it impossible for any unrepresented individual to properly set forth a “cognizable particular social group.”

These, in and of themselves, are reasons for removing the Immigration Courts from the DOJ and creating an independent Article I structure. The “ultimate insult to injury” was when EOIR enthusiastically participated in Stephen Miller’s currently-enjoined attempt to completely write gender-based asylum out of the law. Absurdly, that came at a time when gender-based persecution has become endemic throughout the world!

Not surprisingly, the DOJ, a prosecutorial agency at heart, is most often interested in “litigation strategies” to make it easier for the Government to successfully defend the burgeoning immigration litigation in Federal Court, rather than guaranteeing justice for asylum seekers and other migrants. Quite ironically, what would really reduce the volume of civil immigration litigation is more practical, expert decision making from better qualified Immigration Judges at the “retail level” of the system.

Gimmicks to “game” the Federal Court system against asylum seekers and other migrants by skirting due process and fundamental fairness have actually contributed to, rather than reduced, the amount of civil immigration litigation the Circuits. It has also generated many avoidable “Circuit conflicts” that require attention on Supremes’ limited docket. The failure of the DOJ, the Immigration Courts, and the Federal Courts to recognize and protect the due process rights of asylum seekers and other migrants has directly carried over into the failure of our justice system to achieve equal justice under law for racial minorities.

“Institutionalized racism” is inextricably linked to “Dred Scottification” of migrants of color in the Immigration Courts! The Biden Administration can’t solve the former without addressing the latter!

Bad judging and skewed policies on the “retail level” create multiple problems that adversely affect the entire Federal Justice system. I guarantee that they will not be solved by more restrictionist gimmicks and and unduly narrow and tone-deaf interpretations by judges and policy officials who lack the necessary expertise in immigration and human rights laws and the real-life understanding and perspective of the human consequences of the choices that judges make on a daily basis.

But, I also think that in addition to better judges, it is important to revise the statutory language to make it more explicitly inclusive and clarify that gender-based asylum, family based asylum, and other protected groups are examples, but not limits, of those covered by “particular social group.” Also, the statute should reverse the BIA’s stilted restrictionist interpretations (all too often incorrectly given “deference” by Circuit Courts shirking their duty) of “nexus” as a vehicle to deny asylum rather than an expansive concept that can and should be used to extend life-saving protections where necessary.

Otherwise, as Trump, Sessions, Barr, and Miller demonstrated, needed protection becomes largely a matter of who is appointing the judges at any particular point in time. Protection must and should be more durable — for all refugees including, but not limited, to those seeking  gender-based protection!

Better Federal Judges are the beginning, but by no means the end, of what is needed to make due process, fundamental fairness, and genuine refugee protections the hallmarks of American law. They are also required to turn institutionalized racism into equal justice for all persons in America, regardless of race, religion, gender, or other defining personal characteristics.

🇺🇸⚖️🗽Due Process Forever! Asylum Laws Must Protect, Not Reject!🧑🏽‍⚖️🛡

PWS

03-10-21

LAWRENCE UNIVERSITY, GOVERNMENT 365: INTERNATIONAL LAW — A Virtual Conversation Between Professor Jason Brozek and Me!

Lawrence Government 365
Lawrence Government 365

https://youtu.be/CmC5fLys8oM

Whatever happened to the “promise of Kasinga? How have Sessions & Barr attacked the international refugee definition? Does international law have any meaning for the U.S. today? All this and more in 15 minutes!

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See the “premier offering” from the “Courtside Video” broadcasting from our redesigned studio!

Thanks so much, Jason, for inviting me to do this! I hope your students find it useful! And, remember, I’m always available to answer questions at “Courtside.”

Due Process Forever!

PWS😎

05-06-20

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

pastedGraphic.png

February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

PROFESSOR KAREN MUSALO @ LA TIMES: We Can Restore Legality & Humanity To U.S. Asylum Law — That’s Why The Refugee Protection Act Deserves Everyone’s Support — “The bill lays out a plan to allow women and girls fleeing gender-based violence the opportunity to obtain asylum, and bring our country back in line with its humanitarian commitments. It’s a vision that all members of Congress should be able to get behind, even at a time of bitter partisanship.”

Karen Musalo
Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings LawMusalo

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=55eeae6e-b617-4ffd-b041-a54c15a3ada7&v=sdk

Professor Musalo writes in the LA Times:

Every day, courageous women and girls arrive at our southern border seeking refuge from unimaginable violence. Under our laws, they have the right to apply for asylum and have their cases heard. But rather than offering protection, the Trump administration is determined to send them back to the countries they have fought so hard to escape.

On Thursday, Sen. Patrick J. Leahy (D-Vt.) and Rep. Zoe Lofgren (D-Calif.) introduced the Refugee Protection Act. The bill lays out a plan to allow women and girls fleeing gender-based violence the opportunity to obtain asylum, and bring our country back in line with its humanitarian commitments. It’s a vision that all members of Congress should be able to get behind, even at a time of bitter partisanship.

It’s no secret that this administration is systematically dismantling our asylum law. Women and children have borne the brunt of the suffering — from the egregious policies of family separation and “Remain in Mexico,” to the quiet publication of decisions by the attorney general that have closed door after door to those seeking safety.

The Refugee Protection Act would rectify many of these inhumane actions, and includes language to reverse recent decisions that have made it nearly impossible for women fleeing domestic violence or gang brutality to qualify as refugees.

One of those decisions — known as Matter of A-B- — was handed down by then-Atty. Gen. Jeff Sessions in 2018. That decision has been used to limit the legal definition of “refugee” in an attempt to eliminate the possibility of asylum in the U.S. for victims of domestic violence, sex trafficking and other gender-based human rights violations. Since then, we have seen asylum approval rates plummet for women, children and families arriving at our southern border.

The Matter of A-B- case involves a domestic violence survivor from El Salvador who fears she will be killed if she is sent back to her country. My organization, the Center for Gender & Refugee Studies, has represented A.B. in her asylum case for nearly two years.

In El Salvador, A.B., a courageous and resilient woman, endured over 15 years of beatings, rapes, death threats and psychological abuse at the hands of her husband. She secured a divorce and even moved to another part of El Salvador, desperate to escape her abuser. But no matter where she went, he tracked her down. When she requested a restraining order, the police provided her one — and told her to hand-deliver it to him. Fearing that he would make good on his threat to kill her, she fled to the United States.

In 2016, A.B. was granted asylum by the highest administrative tribunal in the immigration system, the Justice Department’s Board of Immigration Appeals. But in a highly unusual procedural move, Sessions seized upon A.B.’s case, overturned the grant of asylum, and used it to declare that the United States should no longer extend protection to domestic violence survivors.

A.B. has appealed Sessions’ action, but until a final decision is reached, she remains terrified that she will be deported. Countless other women who have made the arduous journey to the United States also face a hostile immigration system and, post-Matter of A-B-, an even harder legal battle.

Congress has an opportunity to correct this. The new bill would clarify legal requirements for asylum and provide clear guidance for cases involving gender-based violence. It would ensure that asylum seekers like A.B. get a fair opportunity to argue her claim before a judge.

The United States has a long history of giving refuge to people who’ve come to our shores. This measure would be a step toward restoring that tradition.

Karen Musalo is a law professor and the founding director of the Center for Gender & Refugee Studies at UC Hastings College of the Law. She is also lead coauthor of “Refugee Law and Policy: An International and Comparative Approach (5th edition).”

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Here’s  a link to an ImmigrationProf Blog summary and the text of the Refugee Protection Act, a recently introduced bill:

https://lawprofessors.typepad.com/immigration/2019/11/karen-musalo-restore-asylum-for-women-fleeing-abuse-and-death-.html

PWS

11-24-19

DERELICTION OF DUTY: 4th Cir. Exposes BIA’s Incompetence & Anti-Asylum Bias, Yet Fails To Confront Own Complicity — SINDY MARILU ALVAREZ LAGOS; K.D.A.A., v. WILLIAM P. BARR

http://www.ca4.uscourts.gov/opinions/172291.P.pdf?fbclid=IwAR0V6wyNPGePFSgscsU5Qw-PQxasjIHuwnGXYQr4RraWbpMse6GOc4bAJqY

DIAZ, 4th Cir., 06-14-19, published

PANEL: GREGORY, Chief Judge, and DIAZ and HARRIS, Circuit Judges.

OPINION BY: PAMELA HARRIS, Circuit Judge

KEY QUOTE:

Sindy Marilu Alvarez Lagos testified credibly that she and her then-seven-year-old daughter, natives and citizens of Honduras, were threatened with gang rape, genital mutilation, and death if they did not comply with the extortionate demands of a Barrio 18 gang member. Unable to meet those demands and fearing for their lives, Alvarez Lagos and her daughter fled to the United States, where they sought asylum, withholding of removal, and protection under the Convention Against Torture.

Now, almost five years later, an immigration judge and the Board of Immigration Appeals have issued a total of three separate decisions denying Alvarez Lagos’s claims. The government defends none of those decisions, including the most recent, which came after we agreed, at the government’s request, to remand the case for reconsideration. Instead, the government admits that errors remain, but argues that we should leave them unaddressed and simply remand once again so that the agency may have a fourth opportunity to analyze Alvarez Lagos’s claims correctly.

We decline that request. A remand is required here on certain questions that have yet to be answered, or answered fully, by the agency. But we take this opportunity to review the agency’s disposition of other elements of Alvarez Lagos’s claims. For the reasons given below, we reverse the agency’s determination with respect to the “nexus” requirement for asylum and withholding of removal. And so that they will not recur on remand, we identify additional errors in the agency’s analysis of the “protected ground” requirement for the same forms of relief, and in the agency’s treatment of Alvarez Lagos’s claim under the Convention Against Torture.

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It’s partially on the Article IIIs. Great decision in many ways. But, this type of injustice occurs daily in our unconstitutional U.S. Immigration Courts. How many Central American asylum applicants get this type of representation—Steve Shulman of Akin Gump for a pro bono lawyer, Tom Boerman as an expert? Not very many.

How many can be this persistent, particularly if detained or sent to Mexico to wait? Almost none! I think that if these respondents were in “Return to Mexico” they would have long ago been forced to give up and accept “Death Upon Return.”

This case should have been a “no brainer grant” five years ago. Could have been done at an Asylum Office (under a more rational system) or by DHS stipulation. THIS abuse of the legal system and gross waste of public resources by DHS and DOJ is the reason why we have unmanageable Immigration Court backlogs, not because asylum applicants and their representatives assert their legal rights.

The Office of Immigration Litigation (“OIL”) didn’t even bother to defend any of the EOIR actions here!  So, after five years why is it “Due Process” for the Fourth Circuit to give the BIA yet another opportunity to come up with bogus reasons to deny asylum.

An Article III Court fulfilling its oath to uphold the laws and Constitution could have ordered this case to be granted and either exercised contempt authority against those at DOJ responsible for this mess or ordered an independent investigation into the judicial incompetence and bias evident here. At the least, the court should have removed any judge having had a role in this abomination from any future proceedings involving these respondents.

Cases such good as this also illustrate the continuing dereliction of duty by Article III Courts who continue to “go along top get along” with the absurdly unconstitutional position that unrepresented asylum applicants can receive “Due Process” in today’s overtly unfair and biased Immigration Courts. The Due Process clause applies to all persons in the U.S., and the right to a fair asylum hearing exceeds the rights at stake in 98% of the civil litigation and most of the criminal litigation in the Federal Courts. If the Article III Courts actually viewed asylum applicants as “persons,” that is “fellow human beings,” rather than dehumanized “aliens,” this farce would have ended decades ago! Folks represented by Steve Schulman and Akin Gump can’t get a “fair shake” from EOIR; what chance does any unrepresented applicant have?

You reap what you sow, and what goes around comes around! If Article III Courts want to be taken seriously and respected, they must step up to the plate and stop the systematic bias against asylum applicants (particularly women and children from Central America) and the abuses like this occurring every day in our unconstitutional U.S. Immigration Courts!

History is watching and making a record, even if those wronged by the Article IIIs all too often don’t survive or aren’t in a position to confront them with their dereliction of legal duties and the obligations human beings owe to each other.

PWS

06-17-19

 

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, Im Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the heavy lifting,please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats will be in line for Dred Scottification” — becoming non-personsunder our Constitution. If you dont know what the Insurrection Actis or Operation Wetbackwas, you should tune into todays edition of my blog immigrationcourtside.com and take a look into the future of America under our current leadersdark and disgraceful vision.

Before I introduce the Dream Teamsitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under todays regime!

In the 1990s, the Legacy INSenacted regulations establishing that those who had suffered past persecutionwould be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.  

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of egregious past persecutionor other serious harm.

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as female genital mutilation(FGM), could be a basis for granting asylum based on a particular social group.Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our forced departurefrom the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (CAT), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as through teamwork and innovation being the worlds best administrative tribunals guaranteeing fairness and due process for allwas at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesnt count those offered prosecutorial discretion or PDby the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didnt squarely fit the somewhat convoluted refugeedefinition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in close casesor in emerging circumstances.

In 2014, there was a so-called surgein asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating treaties,exacting involuntary taxes,and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called surgepassed credible fearscreening by the DHS and were referred to the Immigration Courts, or in the case of unaccompanied minors,to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane nexusrequirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have sealed the deal.In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed surgeas what it really was a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called soft on enforcementby the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective manhooddepended on showing that they could quickly return refugees to the Northern Triangle to deterothers from coming. Thus began the weaponizationof our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called courtsin those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a national security risk.They argued in favor of indefinite detention without bond and making children and toddlers represent themselvesin Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by prioritizingthem, denying their claims, stuffingtheir appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administrations get toughenforcement program. EOIR was there to send a messageto those who might be considering fleeing for their lives dont come, you wont get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and adults with childrenin front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as aimless docket reshuffling(ADR).

Hurry up scheduling and ADR also resulted in more in absentiaorders because of carelessly prepared and often inadequate or wrongly addressed noticessent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didnt even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get lostin the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to expedienceand fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldnt get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates werent providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called dirty lawyers,for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the mastermindbehind the policy of child separationwhich inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged judgesto summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the new normfor final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a bogus fact sheetof lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear wait in Mexicoin dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the New American Gulagwith tent cities and more inhumane prisons dehumanizingly referred to as bedsas if they existed without reference to those humans confined to them;  illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary wall;and threatened to dumpasylum seekers to punishso-called sanctuary cities.Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the credible fearprocess with totally unqualified Border Patrol Agents whose job is to make the system adversarialand to insure that fewer individuals pass credible fear.

The Administration says the fact that the credible fearpass rate is much higher than the asylum grant rate is evidence that the system is being gamed.Thats nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified judges,many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts arent much better, having largely swallowed the whistleon a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to deferto decisions produced not by expert tribunals,but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been  granted by Immigration Judges across the country even after Sessionss blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day Jim Crowswho have abused the rule of law and human values, at all levels of our system, accountable, before the court of historyif nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administrations nativist, White Nationalist policies.Thats what the New Due Process Armyis all about.

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the best ever.I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.  

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University.  In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, whats the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

 

 

NY TIMES: Trump Mocks & Dehumanizes Vulnerable Refugees & His Administration Claims It’s OK To Return Them to Honduras; BUT The Facts Say The Opposite: Honduras Is An Armed Conflict Zone Where Gangs Exercise Quasi-Governmental Control & Those Who Resist Are Severely Punished, Often Maimed, Tortured Or Killed!

https://www.nytimes.com/interactive/2019/05/04/world/americas/honduras-gang-violence.html?smid=nytcore-ios-share

Azam Ahmed Reports for the NY Times:

. . . .

Shootouts, armed raids and last-minute pleas to stop the bloodshed formed the central threads of their stories. MS-13 wanted the neighborhood to sell drugs. The other gangs wanted it to extort and steal. But the members of Casa Blanca had promised never to let their neighborhood fall prey to that again. And they would die for it, if they had to.

Almost no one was trying to stop the coming war — not the police, not the government, not even the young men themselves. The only person working to prevent it was a part-time pastor who had no church of his own and bounced around the neighborhood in a beat-up yellow hatchback, risking his life to calm the warring factions.

“I’m not in favor of any gang,” said the pastor, Daniel Pacheco, rushing to the Casa Blanca members after the shooting. “I’m in favor of life.”

The struggle to protect the neighborhood — roughly four blocks of single-story houses, overgrown lots and a few stores selling chips and soda — encapsulates the inescapable violence that entraps and expels millions of people across Latin America.

Since the turn of this century, more than 2.5 million people have been killed in the homicide crisis gripping Latin America and the Caribbean, according to the Igarapé Institute, a research group that tracks violence worldwide.

The region accounts for just 8 percent of the global population, yet 38 percent of the world’s murders. It has 17 of the 20 deadliest nations on earth.

And in just seven Latin American countries — Brazil, Colombia, Honduras, El Salvador, Guatemala, Mexico and Venezuela — violence has killed more people than the wars in Afghanistan, Iraq, Syria and Yemen combined.

Most of the world’s most dangerous
cities are in Latin America

Latin America

Africa

U.S.

Other

SAFER CITIES

MORE DANGEROUS

Cancún,

Mexico

Kingston,

Jamaica

San Pedro Sula,

Honduras

San Salvador

London

Los Angeles

Paris

Tokyo

Istanbul

Los Cabos,

Mexico

Tijuana,

Mexico

Bogotá,

Colombia

St. Louis

Moscow

New Orleans

6.2 global avg.

0

40

60

80

100

120

Average homicide rate per 100k people

By Allison McCann

Source: Igarapé Institute and the United Nations Office on Drugs and Crime. Cities include the 50 highest homicide rates in the world and a group of prominent others for comparison, all with populations of at least 250,000. Average homicide rates are from 2016-2018 or the latest data available.

The violence is all the more striking because the civil wars and military dictatorships that once seized Latin America have almost all ended — decades ago, in many cases. Most of the region has trudged, often very successfully, along the prescribed path to democracy. Yet the killings continue at a staggering rate.

They come in many forms: state-sanctioned deaths by overzealous armed forces; the murder of women in domestic disputes, a consequence of pervasive gender inequality; the ceaseless exchange of drugs and guns with the United States.

Underpinning nearly every killing is a climate of impunity that, in some countries, leaves more than 95 percent of homicides unsolved. And the state is a guarantor of the phenomenon — governments hollowed out by corruption are either incapable or unwilling to apply the rule of law, enabling criminal networks to dictate the lives of millions.

For the masses fleeing violence and poverty in Central America, the United States is both a cause and solution — the author of countless woes and a chance to escape them.

Frustrated with the stream of migrants treading north, President Trump has vowed to cut aid to the most violent Central American nations, threatening hundreds of millions of dollars meant to address the roots of the exodus.

But the surviving members of Casa Blanca, who once numbered in the dozens, do not want to flee, like tens of thousands of their countrymen have. They say they have jobs to keep, children to feed, families, neighbors and loved ones to protect.

“There is only one way for this to end,” said Reinaldo. “Either they kill us or we kill them.”

. . . .

 

*********************************************

For the full version of Azam’s report and a much better chart graphic, go to the above link!

Trump’s complete lack of humanity, empathy, and his constant racist-inspired lies and misrepresentations about refugees and asylum seekers are truly reprehensible.

But, he and his henchmen like Stephen Miller are by no means the entire problem.

Every day in U.S. Immigration Court, DHS attorneys make demonstrably false representations minimizing the truly horrible conditions in the Northern Triangle, particularly for women. Every day, some U.S. Immigration Judges betray their oaths of office by accepting those false representations and using them, along with an unfairly skewed anti-asylum view of the law, to deny asylum cases that should be granted.

And, perhaps worst of all, every day some life-tenured Article III Circuit Judges turn a blind eye to the legal travesty and due process disaster taking place throughout our corrupted Immigration Courts by rubber stamping results that would be totally unacceptable in any other type of litigation and which don’t even pass the “straight face test.” I guess “out of sight is out of mind,” and the wrongfully deported are “out of sight” (or maybe dead, in hiding, or duressed into joining or cooperating with gangs after the U.S. failed to protect them)

But, there are folks our there resisting this malfeasance and dereliction of duty. Among other things, they are memorializing what is happening and making a record of where the “modern day Jim Crows” and their enablers stand and what they have done to their fellow human beings in the name of “expedience” and an “Alfred E. Neuman (“What Me Worry”)” view of the law and our legal system.

Donald Trump is horrible. But, his racism and infliction of lasting damage on our country and on humanity depend on too many judges and other supposedly responsible public officials supporting, acquiescing, enabling, or minimizing his inhumane, dishonest, counterproductive, and often illegal actions.

An appropriate response by an honest, competent Administration with integrity would be:

  • Establish legal precedents recognizing those fleeing politicized gang violence, domestic violence, and violence directed at famnilies as refugees;
  • Establish precedents incorporating the Article III decisions emphasizing the concept of “mixed motive” in determining “nexus” under asylum and withholding of removal laws;
  • Establish precedents granting temporary withholding of removal under the Convention Against Torture (“CAT”) to those who face torture at the hands of the gangs or Northern Triangle governments (or both), but who can’t establish the convoluted “nexus” for asylum, with a rebuttable presumption that the countries of the Northern Triangle will “acquiesce” in the torture;
  • Liberally use Temporary Protected Status (“TPS”) for nationals from Northern Triangle countries which perhaps would make large-scale asylum adjudication less of a priority and allow most cases to be dealt with in due course through the Asylum Offices rather than clogging Immigration Court dockets;
  • Work to insure that applicants for protection have assistance of counsel in developing and presenting their claims (which would also dramatically increase fairness and efficiency).

PWS

05-05-19

 

 

ADVOCATES ALERT: NEW MEMO TO USCIS ASYLUM OFFICERS ELIMINATES A-R-C-G- AS A BASIS FOR CREDIBLE FEAR — To Get Through Credible Fear Interview, Applicants Must Meet The “Proof Heavy” Evidentiary Test — It Can Be Done! – Administration Obviously Looking At Unrepresented Applicants As “Fish In Barrel” To Be Summarily Denied & Shipped Off To Death, Abuse, Torture – Representation Can Force System To Deal With Real Facts In Northern Triangle!

https://www.vox.com/policy-and-politics/2018/6/19/17476662/asylum-border-sessions

Dara Lind reports at VOX News:

Last week, Attorney General Jeff Sessions issued a sweeping ruling that threatened to radically narrow the standards by which people fleeing domestic or gang violence could claim asylum in the US — or even be allowed to stay in the country to plead their case.

But an internal memo sent to the people actually responsible for implementing Sessions’s ruling at the border, and obtained exclusively by Vox, indicates that Sessions’s revolution isn’t as radical as it seemed — at least not yet.

That could be very good news for parents separated from their children, who will have to face an asylum screening to be allowed to stay in the US in immigration detention after they are criminally charged and convicted under the Trump administration’s “zero tolerance” policy.

The memo obtained by Vox was written by John L. Lafferty, the head of the Asylum Division for US Citizenship and Immigration Services, on Wednesday, June 13, two days after Sessions’s ruling in Matter of A- B- was released. It’s labeled “Interim Guidance” for asylum officers — the people in charge of conducting interviews for asylum and “credible fear” screening interviews for migrants at the border that determine whether they’ll be allowed to stay in the US and pursue an asylum claim.

As the “Interim” label suggests, Lafferty’s memo makes it clear that USCIS will be issuing more directives to asylum officers as it continues to analyze Sessions’s ruling. But in the meantime, it doesn’t dictate sweeping changes to asylum standards.

Michael Bars, a spokesperson for USCIS, told Vox, “Asylum and credible fear claims have skyrocketed across the board in recent years largely because individuals know they can exploit a broken system to enter the U.S., avoid removal, and remain in the country. This exacerbates delays and undermines those with legitimate claims. USCIS is carefully reviewing proposed changes to asylum and credible fear processing whereby every legal means is being considered to protect the integrity of our immigration system from fraudulent claims — the Attorney General’s decision will be implemented as soon as possible.”

But the initial implementation doesn’t appear to be quite as aggressive as that rhetoric implies.

“While the Attorney General made some very sweeping assertions in Matter of A-B-, including as to what he thinks would happen to the claims of different kinds of asylum seekers under this ruling, the legal holding of this case is considerably narrower,” said Anwen Hughes, a lawyer for the advocacy group Human Rights First, when sent the text of the memo. “This guidance focuses on what the AG’s decision actually held.”

Sessions’s ruling declared, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” That language isn’t replicated in the memo — which urges officers to deal with claims on a case-by-case basis.

The only specific change the memo mandates to asylum policy is for officers to stop citing a past Board of Immigration Appeals precedent, Matter of A-R-C-G-, which found that “married women in Guatemala who are unable to leave their relationship” constituted a particular social group — allowing some domestic violence victims to claim asylum based on their persecution as members of that group.

But while A-R-C-G- was the only precedent Sessions explicitly overturned, his ruling also said that “any other” precedent from the Board of Immigration Appeals was also moot if it had defined “particular social group” more broadly than Sessions did last week.

The initial implementation memo from USCIS doesn’t mention any such rulings. It emphasizes that officers should make decisions based on two precedents Sessions held up as gooddecisions — both of which denied asylum claims based on gang violence — but doesn’t identify any decisions that are too broad under Sessions’s standards.

That means that for the moment, at least, asylum officers would be able to determine that a victim of domestic or gang violence still deserves asylum — or deserves to plead her asylum case — if there’s another precedent decision that they think fits the case.

The USCIS memo does emphasize that people seeking asylum based on gang violence or any other “private crime” need to demonstrate that the government in their home country “condoned the behavior or demonstrated a complete helplessness to protect the victim.”

Before Sessions’s ruling, immigrants could claim asylum if they were persecuted by a nonstate group and the government was “unable or unwilling” to prevent it. Technically, that’s still the standard. But Sessions’s formulation about condoning or “complete helplessness” could set the bar higher for what counts as unable or unwilling — especially because his ruling emphasized (in a passage quoted by the implementation memo) that police ignoring crime reports doesn’t mean they’re unable or unwilling to help the victim.

This guidance could be very good news for parents separated from children

The implementation of Sessions’s asylum ruling has real and immediate impacts for asylum seekers — including the thousands of parents who have been separated from their children at the border and prosecuted in recent weeks.

After being prosecuted and sentenced (usually to “time served”), asylum seekers are returned to the custody of Immigration and Customs Enforcement (ICE) for deportation. They face “expedited” deportation, without a full immigration court hearing, unless they can demonstrate that they have a “credible fear” of persecution and should stay in the US to pursue an asylum claim.

At the moment, the overwhelming majority of people are passing their “credible fear” screenings. Sessions sees this as a sign of widespread fraud and lax standards, and his ruling last week was explicitly written to raise the bar not only for eventual approvals or denials of asylum, but for the initial screenings as well.

If Sessions’s ruling were being interpreted as broadly as possible by USCIS, many parents would likely find it impossible to pass their screening interviews, and would find themselves deported without their children and with little time to locate or contact them. But because USCIS appears to be relatively cautious in its implementation, parents in custody — at least for the moment — appear to have a better shot of staying in the US to pursue their asylum case and reunite with their children.

Of course, asylum claims and initial screenings are both partly up to the discretion of individual asylum officers. It’s totally possible that some asylum offices will interpret this memo as an instruction to get much harsher. But the memo doesn’t force them to do that, at least in its interim form.

The text of the memo obtained by Vox is below.


From: Lafferty, John L
Sent: Wednesday, June 13, 2018 5:20 PM
To: [redacted by Vox]
Subject: Asylum Division Interim Guidance – Matter of A- B-, 27I&N Dec. 316 (A.G. 2018)

Asylum Division colleagues:

I’m sure that most of you have heard and/or read about the decision issued by Attorney General Sessions on Monday in Matter of A- B-, 27I&N Dec. 316 (A.G. 2018).

Below is our Office of Chief Counsel’s summary of the AG’s decision, which is followed by Asylum’s summaries of two 2014 decisions – Matter of M-E-V-G and Matter of W-G-R- – that were cited by the AG in support of his decision. While we continue to work with our OCC colleagues on final guidance for the field, we are issuing the following interim guidance on how to proceed with decision-making on asylum cases and CF/RF [credible fear/reasonable fear] screening determinations:

Matter of A-R-C-G- has been overruled and can no longer be cited to or relied upon as supporting your decision-making on an asylum case or in a CF/RF determination.

Effective upon issuance of this guidance, no affirmative grant of asylum or positive CF/RF screening determination should be signed off on by a supervisor as legally sufficient, or issued as a final decision/determination, that specifically cites to or relies upon Matter of A-R-C-G- as justification for the result. Instead, it should be returned to the author for reconsideration consistent with the next bullet.

All pending and future asylum decisions and CF/RF screening determinations finding that the individual has shown persecution or a well-founded fear of persecution on account of membership in a particular social group must require that the applicant meet the relevant standard by producing evidence that establishes ALL of the following:

A cognizable particular social group that is 1) composed of members who share a common immutable characteristic; 2) defined with particularity, and 3) socially distinct within the society in question;

Membership in that PSG;

That membership in the PSG was or is a central reason for the past and/or future persecution; and

The harm was and/or will be inflicted by the government or by non-governmental actors that the government is unable or unwilling to control.

When the harm is at the hands of a non-governmental actor, the applicant must show that the government condoned the behavior or demonstrated a complete helplessness to protect the victim. This new decision stresses that, in applying this standard, “[t]he fact that the local police have not acted on a particular report of an individual crime does not necessarily mean that the government is unwilling or unable to control crime, any more than it would in the United States. There may be many reasons why a particular crime is not successfully investigated and prosecuted. Applicants must show not just that the crime has gone unpunished, but that the government is unwilling or unable to prevent it.” A-B- at 337-338. (See RAIO Lesson Plan – Definition of Persecution and Eligibility Based on Past Persecution, Section 4.2 “Entity the Government Is Unable or Unwilling to Control”, for further guidance).

The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.

Every asylum decision and CF/RF screening determination must consider and analyze whether internal relocation would be reasonable, as provided for at 8 CFR 208.

If you have questions on this interim guidance, please raise them up your local chain of command so that they can be brought to the attention of HQ Asylum QA Branch.

Thank you!!

*********************************************************

Sure, the BIA has worked hard to reject almost every gang-related formulation in the past. But, that’s often 1) without effective representation; 2) without the respondent presenting the necessary specific and voluminous evidence; and 3) by intentionally misconstruing facts — more or less along the lines of Sessions in A-B-.

Keep it simple:

“Women in El Salvador” actually fits well within the BIA’s three PSG criteria and is “at least one central for persecution” in many cases.

“Public opponents of gangs in X Country” also should be a pretty straightforward fit with a proper factual record and specific legal arguments. It also fits the “political” ground if the accurate factual basis is presented and documented effectively.

The reality is that gender is a major reason for persecution all over the world  — one of the largest, in fact — and is well within the 1952 Convention’s ambit! Likewise, in countries where all real experts say gangs have infiltrated or in many cases are actually acting in concert with the Government, public opposition represents fundamental values that are limited to a readily identifiable segment of the population for which the punishment is immediate and severe. Likewise, it’s a rather clear case of political persecution, just like “whistleblowers” and “union activists.”

For years, the advocacy community has been willing to cooperate with the Government’s highly restrictive “incremental approach” to protection, because it was showing signs of real, if slow, progress and other viable alternatives such as “prosecutorial discretion” and “Special Immigrant Juvenile Status” were often available. Now, Sessions has intentionally reversed almost all of that progress and “returned us to the Dark Ages” as one expert put it.

So, no more “Mr. Nice Guy!” If it’s war that Sessions & Co. want, why not give it to them? Now is the time to simply “blow the roof off” of the Executive’s overly restrictive, unjustifiable, often disingenuous, confusing, contradictory, and clearly biased misinterpretation of what’s really happening in the Northern Triangle and elsewhere and how international protection laws must and should be applied if they are to have any meaning in the 21st century.

And, forget the bogus “floodgates” arguments. “Christians,” Jews,” “Muslims,” “Blacks,” “Pentecostals” are all potentially huge groups that have been recognized for asylum purposes.

Sure, maybe if forced to interpret the asylum and CAT laws properly Congress with withdraw from all of our international obligations so that nobody gets in. I doubt it. But if it happens, it happens.

At least it will then be out in the open that we are a “bogus” democracy that spreads false myths about our values, but won’t actually live up to them when the going gets tough (which, incidentally and not surprisingly,  is also a symptom of “False Christianity”).

Then, maybe when folks figure out that “we aren’t who we say we are,” they will stop coming! Or, we could simply set up machine gun nests along the border and gun down all the unwanted women and children before they can become a burden on our “justice” system. In the end, the results of that might not be lots different from using our asylum and “court” systems as a “deterrent” to those fleeing for their lives. Just more honest about who we really are deep down, when  it counts.

PWS

06-19-18

 

 

THE HILL: Nolan Says Sessions Got It Right In Matter of A-B- — Not Me!

http://thehill.com/opinion/immigration/392409-sessions-domestic-abuse-decision-didnt-change-asylum-law-just-applied-it

Family Pictures

Nolan writes:

. . . .

This isn’t the first time The Board of Immigration Appeals has considered domestic violence and rejected victims of domestic violence as a particular social group. The Board did it in “Matter of R-A-” in 1999.

The Board held that R-A- was not eligible for asylum for two reasons. First, her claimed social group — “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” — did not qualify as a “particular social group” for asylum purposes.

And second, that she has not established that her husband abused her because he perceived her to be a member of this group.

Attorney General Janet Reno intervened and vacated that decision — rendered it void — so it could be reconsidered in light of a proposed regulation that would clarify some of these concepts, but no final rule was ever promulgated.

The case was resolved without further consideration by the Board when R-A- and DHS jointly stipulated that she was eligible for asylum. Nevertheless, the Board and the federal courts continued to treat the R-A- analysis as persuasive.

In a later case, “Matter of A-R-C-G-”, the Board abandoned the reasoning from the R-A- analysis and held that depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a particular social group for asylum purposes. But the finding was based primarily on government concessions, as opposed to basing it on an application of Board precedent.

Sessions found that the Board decided A-R-C-G-’s case without performing the rigorous analysis required by Board precedents by basing its decision on concessions from the DHS attorney that the respondent had suffered past persecution, that she was a member of a qualifying particular social group, and that her membership in that group was a central reason for her persecution instead of adjudicating these issues.

Sessions concluded therefore that A-R-C-G-’s case was wrongly decided and should not have been issued as a precedential decision. Accordingly, he overruled it.

Having overruled A-R-C-G-’s case, he had to vacate the Board’s decision in the A-B- case too. The Board’s cursory analysis of the respondent’s “particular social group” in that case consisted mainly of a general citation to A-R-C-G-’s case and country condition reports.

He remanded the case to the immigration judge for further proceedings consistent with this opinion, reiterating that an applicant for asylum on account of membership in a particular social group must demonstrate:

  1. Membership in a particular social group that is composed of members who share a common immutable characteristic, is defined with particularity, and is socially distinct;
  2. That membership in that group is a central reason for the alleged persecution; and
  3. That the alleged harm is inflicted by the government of her home country or by persons that the government is unwilling or unable to control.

The Board decisions applying asylum to domestic abuse victims may be morally correct, but they are legally indefensible.

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Read Nolan’s complete article over at The Hill at the above link.

I respectfully dissent. See Matter of R-A-, 22 I&N Dec. 906, 922 (BIA 1999) (Judge Guendelsberger, dissenting, joined by Schmidt, Chairman, and Judges Rosenberg, Villageliu, Moscato). The “Gang of Five” had it right then and continue to be right today.

I’ve been one of those fighting the battle for a correct interpretation of asylum law, particularly as it applies to abused women and other vulnerable groups, for two decades. It’s discouraging to have to re-fight a war we already won once. But, we’re all going to hang in there until justice and the humane, protective values behind the 1952 Convention and the Refugee Act of 1980 prevail. And, after we’re gone, members of the New Due Process Army will continue the fight until justice for the most vulnerable among us prevails.

 

PWS

06-17-18

TRUMP TREATS KIDS AS HUMAN PAWNS IN UGLY POLITICAL CHESS GAME – Administration’s Continued Spreading Of False Narrative On Migration Makes Continuing Migration Outside of Legal System Inevitable!

https://www.washingtonpost.com/politics/trump-cites-as-a-negotiating-tool-his-policy-of-separating-immigrant-children-from-their-parents/2018/06/15/ade82b80-70b3-11e8-bf86-a2351b5ece99_story.html

Michael Scherer & Josh Dawsey report for the Washington Post:

President Trump has calculated that he will gain political leverage in congressional negotiations by continuing to enforce a policy he claims to hate — separating immigrant parents from their young children at the southern border, according to White House officials.

On Friday, Trump suggested he would not change the policy unless Democrats agreed to his other immigration demands, which include funding a border wall, tightening the rules for border enforcement and curbing legal entry. He also is intent on pushing members of his party to vote for a compromise measure that would achieve those long-standing priorities.

Trump’s public acknowledgment that he was willing to let the policy continue as he pursued his political goals came as the president once again blamed Democrats for a policy enacted and touted by his own administration.

“The Democrats are forcing the breakup of families at the Border with their horrible and cruel legislative agenda,” he tweeted. After listing his demands in any immigration bill, he added, “Go for it! WIN!”

The attempt to gain advantage from a practice the American Academy of Pediatrics describes as causing children “irreparable harm” sets up a high-stakes gambit for Trump, whose political career has long benefited from harsh rhetoric on immigration.

Democrats have latched onto the issue and vowed to fight in the court of public opinion, with leaders planning trips to the border to highlight the stories of separated families, already the focus of news media attention. Democratic candidates running for vulnerable Republican seats also have begun to make the harsh treatment of children a centerpiece of their campaigns.

The policy has cracked Trump’s usually united conservative base, with a wide array of religious leaders and groups denouncing it. The U.S. Conference of Catholic Bishops and the Southern Baptist Convention issued statements critical of the practice.

The Rev. Samuel Rodriguez, who delivered a prayer at Trump’s inauguration, signed a letter calling the practice “horrible.” Pastor Franklin Graham of Samaritan’s Purse, a vocal supporter of the president’s who has brushed aside past Trump controversies, called it “terrible” and “disgraceful.”

Besides increasing the odds of a broader immigration bill, senior Trump strategists believe that the child separation policy will deter the flow of migrant families across the border. Nearly 2,000 immigrant children were separated from parents during six weeks in April and May, according to the Department of Homeland Security. The figure is the only one released by the goverment.

“The president has told folks that in lieu of the laws being fixed, he wants to use the enforcement mechanisms that we have,” a White House official said. “The thinking in the building is to force people to the table.”

Trump reinforced that notion Friday morning at the White House when he suggested Democrats alone had the power to alter the policy.

“I hate the children being taken away,” Trump said.

The president used a similar strategy last year as he sought to gain approval for his immigration demands by using the lure of protection for young immigrants brought to the United States as children. That effort, which ran counter to Trump’s earlier promise to sign a bipartisan bill protecting the young immigrants, foundered in Congress.

. . . .

The current policy resulted from a decision made in April by Attorney General Jeff Sessions to prosecute all migrants who cross the border, including those with young children. Those migrants had avoided detention during the administrations of George W. Bush and Barack Obama. Because of a 1997 court settlement that bars children from being imprisoned with parents, Justice Department officials now say they have no choice but to isolate the children.

Sessions and White House press secretary Sarah Huckabee Sanders have defended the policy as a sound, and biblical, decision to enforce the law.

“The previous administration wouldn’t prosecute illegal aliens who entered the country with children,” Sessions said Thursday in Fort Wayne, Ind., citing biblical advice to follow laws. “It was de facto open borders.”

The biblical underpinnings have been challenged by religious leaders.

“There’s definitely a groundswell of opposition from virtually every corner of the Christian community,” said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention. “People are able to understand immediately the drive of parents to protect their child and to understand the horror of splitting up vulnerable children from their parents.”

Yet several key Trump administration officials support the family separation policy, including Chief of Staff John F. Kelly, Homeland Security Secretary Kirstjen Nielsen and senior adviser Stephen Miller, a vocal supporter of stricter immigration laws.

Some senior officials think Democrats will be pressured by the policy to cut an immigration deal.

“If they aren’t going to cooperate, we are going to look to utilize the laws as hard as we can,” said a second White House official.

Others have argued that the main benefit of the policy is deterrence. Miller has said internally that the child separations will bring the numbers down at the border, a goal that Trump wants to achieve. Miller and Marc Short, the White House director of legislative affairs, have argued that immigration legislation is unlikely to pass this summer, officials said.

“The side effect of zero tolerance is that fewer people will come up illegally, and fewer minors would be put in danger,” said a third senior administration official. “What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?”

. . . .

*********************************************

Please read the complete article at the link.

So, the choice is ““What is more dangerous to a minor, the 4,000-mile journey to America or the short-term detention of their parents?” Not really!

The real choices are 1) a dangerous 4,000 mile journey to a place where you might be able to save your life and that of your loved ones; or 2) the much more dangerous option of remaining in a place where you will likely be beaten, raped, extorted, tortured, impressed against your will, or killed by gangs, who are not just “street criminals” (as falsely portrayed by Sessions and other restrictionists) but who exercise quasi-governmental authority with the knowing acquiescence of the recognized governments. 

Realistically, folks are going to opt for #1. We could recognize them as refugees; screen them abroad to weed out gang members and criminals and to take the danger out of the 4,000 mile journey; work with the UNHCR and other countries to distribute the flow; open more paths to legal immigration for those who want to leave but might not fit easily within the refugee definition; and encourage those who still arrive at our borders without documents seeking protection to go to a port of entry where they will be treated respectfully, humanely, and be given a prompt but full opportunity to present their cases for protection with access to counsel in a system that satisfies all the requirements of Constitutional Due Process, with the additional understanding that if they lose they will have to return to their home country.

Alternatively, we could double down on our current failed policies of detention, deterrence, and lawless and immoral Governmental behavior; send the message that folks shouldn’t bother using our legal system because it’s a fraud that has intentionally been fixed against them; encourage the use of smugglers who will charge ever higher fees for developing new and more dangerous means of entry; and send the message that if folks rally want to survive, they should pay a smuggler to get them into the interior of our country where they have at least a fighting chance of blending in, hiding out from immigration enforcement, behaving themselves, and working hard until they are caught and removed, die, conditions improve and they leave voluntarily for their country of origin, or we finally give them some type of legal recognition.

My first alternative could likely be established and operated for a fraction of what we are now spending on failed immigration enforcement, useless and unnecessarily cruel detention, unnecessary criminal prosecutions, and a broken Immigration Court system.

Plus, at a time of low birth rate and low unemployment, it would give us a significant economic boost by bringing a highly motivated, hard-working, family oriented, and appreciative workforce into our society. It might also inspire other stable democratic nations to join us in an effort to save lives (which also happens to fit in well with religious values), resettle individuals, and, over time, address the horrible situation in the Northern Triangle that is creating this flow.

Alternative two, which is basically a variation on what we already are doing, will guarantee a continuing “black market flow”of migrants, some of whom will be apprehended and removed at significant financial and societal costs, while most will continue to live in an underground society, subject to exploitation by unscrupulous employers and law enforcement, underutilizing their skills, and not being given the opportunity to integrate fully into our society.

The thing we will not be able to do is to halt human migration solely by law enforcement actions taken at “our end” of the chain. That is, unless we wish to establish a “Stalinist type state” that is so grim and repressive that nobody wants to come any more. 

Kids as human pawns. Child abuse as policy. Dreamers as hostages. Jesus told us to do it. It’s the Democrats fault. I really hate to let Jeff abuse children, but I have no choice. Refugee women fleeing gang controlled states reduced to human scum who should just accept their beatings and rape and get in the non-existent line for legal immigration that we want to eliminate. That is, if they actually live long enough to get in the non-existent line, which is unlikely. Biased judges cheering the chance to sign death warrants for the most vulnerable among us. Courts clogged with refugees being prosecuted for seeking refuge while being pressured by seizure of their children into giving up rights.

Once again, I’ve been proved right: We are actively diminishing ourselves as a nation every day; but, it isn’t stopping, and won’t in the long run stop, human migration. Sure, there is a natural ebb and flow that responds in some minor ways to our futile attempts to stop it. Sort of like throwing up man-made sand bars to stop beach erosion. Works for a few months or even years, but eventually the inevitable forces of nature win out. It sure seems to me that it would be smarter to work with the flow of the river and turn it to our advantage, rather than trying to make it reverse course — an exercise in futility that only serves to diminish the humanity of each of us.

PWS

06-16-18

 

JIM CROW’S RETURN: SESSIONS ENDS TOXIC WEEK BY REVEALING HIMSELF AS ANTI-CHRIST! — Makes Bogus Claim That Christian Teaching Supports Child Abuse & Cruelty In The Name of “The Law” — African Americans Well Understand AG’s Perverted Bible Quote Once Used To Justify Slavery And Dehumanization (As Well As Nazism & Apartheid) — Shines Spotlight On His Own Deviance From The Merciful, Healing, Kind, & Forgiving Message of Christ!

Here’s a wonderful response to Sessions by Kansas City Attorney Andrea C. Martinez:

The “Christian” B.S. Litmus Test
By , Andrea C. Martinez, Esq.

To my amazing friends who are atheist, agnostic, or non-Christian. To the good-willed and the pissed-off. To the people who are genuinely confused as to how Jefferson Sessions and Sarah Huckabee Sanders can use the Bible as a justification for abhorrent policies such as the separation of immigrant children from their parents at the border or the persecution of vulnerable asylum seekers, I am a Jesus-follower with a Bible degree from a Christian college and I GIVE YOU PERMISSION TO CALL B.S.

Please join me in calling B.S. whenever you hear people use the Bible to justify the oppression of others. Especially when they misuse and cite Romans 13 to justify their mistreatment. While Romans 13:4 calls us to submit to government authorities because “the one in authority is God’s servant for your good” it does not require us to submit to an unjust law. If the government authority is not acting in a way that reflects God’s law, which is the loving treatment of others, Jesus invites us to participate in civil disobedience. Remember when Jesus healed a man’s hand on the Sabbath in violation of the Jewish law (Mark 3:1-6) and says, “Which is lawful on the Sabbath: to do good or to do evil, to save life or to kill?” Matthew 3:4. Then he goes ahead and heals the man. There are numerous other examples in the Bible of civil disobedience that I would be happy to analyze with you at a different time (like the story of Shadrach, Meshach, and Abednego).

We must look first and foremost to Jesus Himself and His words when deciding whether a law is just and therefore should be followed. Jesus gave us a “Greatest Commandment” litmus test for determining which actions are really done in his name: “So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets.” Luke 6:31. And Jesus provided us a pretty simple “B.S. Litmus Test” (my words, not Jesus’!) to determine whether an action or law reflects His heart. The B.S. Litmus Test is this: “is this law/action/policy treating others as I would like to be treated?” (Matthew 7:12). And a second question would be, “does this law reflect love or fear?” If the latter, it is not from God. Because “perfect love casts out fear.” 1 John 4:18.

Regarding Jesus’ exact instructions on the treatment of immigrants, read Matthew 25: 34-46. Jesus refers to the immigrant/refugee/foreigner as “the stranger” and says, “Then the King will say to those on his right, ‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger (refugee/immigrant/foreigner) and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ “Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink?When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?’

“The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’

“Then he will say to those on his left, ‘Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.’
“They also will answer, ‘Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?’ “He will reply, ‘Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.’ “Then they will go away to eternal punishment, but the righteous to eternal life.” -JESUS

PLEASE BE ON GUARD: when you hear a government official use a passage like Romans 13 to try to justify actions that contradict the commandments of Jesus Himself, it is akin to a lawyer trying to convince a judge that a policy or regulation should be followed even though a statute or the Constitution of the United States itself prohibits it. Oh wait, that is exactly what is happening in the Jeff Sessions video above. The United States has ratified international refugee treaties legally obliging our nation to consider the claims of each asylum-seeker on its own merit and the Attorney General has now created his own self-indulging policy persecuting asylum seekers as a “deterrent” to seeking the protection they are legally entitled to. Laws trump policies in the hierarchy of authority, and Jesus’ words trump unjust government action in the spiritual context.

So please join me in calling BS on policies that oppress the immigrant, the refugee, and the foreigner. No citation to Romans 13 can ever trump Jesus’ calling to love the immigrant in Matthew 25. I stand with Jesus-followers and non-Christians alike in the disgusted renunciation of any attempt to cite Holy Scripture as a justification to oppress the weak or the vulnerable. I proudly stand with Jesus and will continue to defend the “stranger” in my law practice as an act of worship to my Jesus who I know loves and cares for them even more than I do.

Thank You,

Andrea C. Martinez, Esq.

Attorney/Owner

” src=”blob:http://immigrationcourtside.com/1416d79c-b6be-44d1-aab8-d9f091b8c723″ alt=”cid:image001.jpg@01D238F4.0AFDDA30″ class=”Apple-web-attachment”>

7000 NW Prairie View Road, Suite 260

Kansas City, MO 64151

(816) 491-8105: phone

(816) 817-2480: fax

info@martinezimmigration.com

www.martinezimmigration.com

***********************************

Thanks Andrea!

I call B.S. But, then most of what Sessions says is B.S.

***********************************

Here’s another from JRube in the WashPost:

Attorney General Jeff Sessions displayed an appalling lack of appreciation for the religious establishment clause, not to mention simple human dignity. Speaking to a meeting of the U.S. Conference of Catholic Bishops, and in the wake of the Church’s condemnation of the barbaric policy of separating children from their parents at the border, Sessions proclaimed: “Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government, because God has ordained them for the purpose of order. Orderly and lawful processes are good in themselves and protect the weak and lawful.” Later in the day, White House press secretary Sarah Huckabee Sanders repeated his religious admonition to obey the law.

This is horrifically objectionable on multiple grounds. First, he is a public employee and must uphold the First Amendment’s establishment clause. If Sessions wants to justify a policy, he is obligated to give a secular policy justification. (Citing the Bible — inaptly — to Catholic bishops who exercise their religious conscience in speaking out against family separation may be the quintessential example of chutzpah.) Second, he is a policymaker, in a position tochange a position that is inconsistent with our deepest values, traditions and respect for human rights. Third, the bishops were not advocating civil disobedience; they were objecting to an unjust law. Sessions is trying to use the Bible to squelch dissent.

We should point out that invoking this Biblical passage has a long and sordid history in Sessions’s native South. It was oft-quoted by slave-owners and later segregationists to insist on following existing law institutionalizing slavery (“read as an unequivocal order for Christians to obey state authority, a reading that not only justified southern slavery but authoritarian rule in Nazi Germany and South African apartheid”).

I’m no expert in Christianity, but the Rev. Martin Luther King Jr. was when he drafted his letter from the Birmingham jail:

Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

Sessions perfectly exemplifies how religion should not be used. Pulling out a Bible or any other religious text to say it supports one’s view on a matter of public policy is rarely going to be effective, for it defines political opponents as heretics.

The bishops and other religious figures are speaking out as their religious conscience dictates, which they are morally obligated to do and are constitutionally protected in doing. A statement from the conference of bishops, to which Sessions objected, read in part:

At its core, asylum is an instrument to preserve the right to life. The Attorney General’s recent decision elicits deep concern because it potentially strips asylum from many women who lack adequate protection. These vulnerable women will now face return to the extreme dangers of domestic violence in their home country. This decision negates decades of precedents that have provided protection to women fleeing domestic violence.

Reminding the administration of the meaning of family values, the bishops continued, “Families are the foundational element of our society and they must be able to stay together. While protecting our borders is important, we can and must do better as a government, and as a society, to find other ways to ensure that safety. Separating babies from their mothers is not the answer and is immoral.”

The Catholics are not alone. The administration’s vile policy has alarmed a wide array of faith leaders. The Southern Baptist Convention issued their own statement. It is quoted at length because it is so powerful:

WHEREAS, Every man, woman, and child from every language, race, and nation is a special creation of God, made in His own image (Genesis 1:26–27); and

WHEREAS, Longings to protect one’s family from warfare, violence, disease, extreme poverty, and other destitute conditions are universal, driving millions of people to leave their homelands to seek a better life for themselves, their children, and their grandchildren; and

WHEREAS, God commands His people to treat immigrants with the same respect and dignity as those native born (Leviticus 19:33–34Jeremiah 7:5–7Ezekiel 47:22Zechariah 7:9–10); and

WHEREAS, Scripture is clear on the believer’s hospitality towards immigrants, stating that meeting the material needs of “strangers” is tantamount to serving the Lord Jesus Himself (Matthew 25:35–40Hebrews 13:2); and

WHEREAS, Southern Baptists affirm the value of the family, stating in The Baptist Faith and Message that “God has ordained the family as the foundational institution of human society” (Article XVIII), and Scripture makes clear that parents are uniquely responsible to raise their children “in the training and instruction of the Lord” (Ephesians 6:4).  . . .

RESOLVED, That the messengers to the Southern Baptist Convention meeting in Dallas, Texas, June 12–13, 2018, affirm the value and dignity of immigrants, regardless of their race, religion, ethnicity, culture, national origin, or legal status; and be it further

RESOLVED, That we desire to see immigration reform include an emphasis on securing our borders and providing a pathway to legal status with appropriate restitutionary measures, maintaining the priority of family unity, resulting in an efficient immigration system that honors the value and dignity of those seeking a better life for themselves and their families; and be it further

RESOLVED, That we declare that any form of nativism, mistreatment, or exploitation is inconsistent with the gospel of Jesus Christ; and be it further

RESOLVED, That we encourage all elected officials, especially those who are members of Southern Baptist churches, to do everything in their power to advocate for a just and equitable immigration system, those in the professional community to seek ways to administer just and compassionate care for the immigrants in their community, and our Southern Baptist entities to provide resources that will equip and empower churches and church members to reach and serve immigrant communities. . . .

Rabbi David Wolpe dryly observed that “until 2018, I don’t believe any reader of the Bible has argued that separating families is rooted in the Bible, and if the Bible is about obeying the government, it is hard to understand what all those prophets were yelling at the kings about.” (Meanwhile, 26 Jewish organizations sent a letter condemning the policy to Sessions.)

Peter Wehner of the Ethics and Public Policy Center has written extensively on the role of religion in politics. “I would say that this is just the most recent, but also one of the most egregious, ways that those who call themselves Christians are disfiguring and discrediting their faith. They are living in an inverted moral world, where the Bible is being invoked to advance cruelty,” he said. “Rather than owning up to what they are doing, they are trying to sacralize their inhumane policies. They are attempting to harm children and then dress it up as Christian ethics.”

He added: “This shows you the terrible damage that can be done to the Christian witness when the wrong people attain positions of power. They subordinate every good thing to their ideology, twisting and distorting everything they must to advance their political cause. In this case, it’s not simply that an authentic Christian ethic is subordinate to their inhumane politics; it is that it is being thoroughly corrupted, to the point that they are using the Bible to justify what is unjustifiable.”

If the administration is embarrassed by a policy they are trying to insist is required by law (that is untrue, and I know the prohibition against lying is very biblical) they should change it. Trump and his aides need to stop shifting blame to other politicians, and stop telling Christians what their obligations are. Frankly, the lack of outrage from Trump’s clique of evangelical supporters on this issue is not simply unusual given the near-universal outrage in faith-based communities, but is a reminder that leaders of  “values voters” traded faith for the political game of power and access. As Wehner put it, “To watch the Christian faith be stained in this way by people like Jeff Sessions and Sarah Huckabee Sanders is painful and quite a disturbing thing to watch. I don’t know whether they realize the defilement they’re engaging in, but that’s somewhat beside the point. The defilement is happening, and they are leading the effort. It’s shameful, and it’s heretical.”

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Remarkably, Sessions claims to be a Christian and a Methodist (although I can’t for the life of me find a speck of the actual kind, merciful, forgiving, teachings of Jesus Christ in any aspect of Sessions’s life, career, or actions). He’s one of the most “unChristian” people I’ve ever witnessed in American public life. And, I’ve seen some pretty bad actors, going all the way back to infamous Wisconsin GOP Senator Joe McCarthy! In his own way, Sessions is just as far removed from the true meaning of Christ’s teaching as his pagan, idolatrous boss, Trump.

At any rate, the Methodist Council of Bishops has joined other religious denominations in condemning Sessions’s policies of cruelty and child abuse.

Faith leaders’ statement on family separation

FOR IMMEDIATE RELEASE
Thursday, June 7, 2018

WASHINGTON, D.C. — The Council of Bishops of The United Methodist Church is joining other faith organizations in a statement urging the U.S. government to stop its policy of separating immigrant families.

Below is the full statement signed by dozens of faith organizations. Bishop Kenneth H.  Carter, president of the Council of Bishops, signed on behalf of the Council.

FAITH LEADERS’ STATEMENT ON FAMILY SEPARATION 

Recently, the U.S. Administration announced that it will begin separating families and criminally prosecuting all people who enter the U.S. without previous authorization. As religious leaders representing diverse faith perspectives, united in our concern for the well-being of vulnerable migrants who cross our borders fleeing from danger and threats to their lives, we are deeply disappointed and pained to hear this news.

We affirm the family as a foundational societal structure to support human community and understand the household as an estate blessed by God. The security of the family provides critical mental, physical and emotional support to the development and wellbeing of children. Our congregations and agencies serve many migrant families that have recently arrived in the United States. Leaving their communities is often the only option they have to provide safety for their children and protect them from harm. Tearing children away from parents who have made a dangerous journey to provide a safe and sufficient life for them is unnecessarily cruel and detrimental to the well-being of parents and children.

As we continue to serve and love our neighbor, we pray for the children and families that will suffer due to this policy and urge the Administration to stop their policy of separating families.

His Eminence Archbishop Vicken Aykazian
Diocesan Legate and
Director of the Ecumenical Office
Diocese of the Armenian Church of America

Mr. Azhar Azeez
President
Islamic Society of North America

The Most Rev. Joseph C. Bambera
Bishop of Scranton, PA
Chair, Bishops’ Committee for Ecumenical and Interreligious Affairs

Senior Bishop George E. Battle, Jr.
Presiding Prelate, Piedmont Episcopal District
African Methodist Episcopal Zion Church

Bishop Kenneth H. Carter, Jr.
President, Council of Bishops
The United Methodist Church

The Most Rev. Michael B. Curry
Presiding Bishop
Episcopal Church (United States)

The Rev. Dr. John C. Dorhauer
General Minister & President
United Church of Christ

The Rev. Elizabeth A. Eaton
Presiding Bishop
Evangelical Lutheran Church in America

The Rev. David Guthrie
President, Provincial Elders’ Conference
Moravian Church Southern Province

Mr. Glen Guyton
Executive Director
Mennonite Church USA

The Rev. Teresa Hord Owens
General Minister and President
Christian Church (Disciples of Christ)

Rabbi Rick Jacobs
President
Union for Reform Judaism

Mr. Anwar Khan
President
Islamic Relief USA

The Rev. Dr. Betsy Miller
President, Provincial Elders’ Conference
Moravian Church Northern Province

The Rev. Dr. J. Herbert Nelson II
Stated Clerk
Presbyterian Church (USA)

Rabbi Jonah Pesner
Director
Religious Action Center of Reform Judaism

The Rev. Don Poest
Interim General Secretary
The Rev. Eddy Alemán
Candidate for General Secretary
Reformed Church in America

Senior Bishop Lawrence Reddick III
Presiding Bishop, The 8th Episcopal District
Christian Methodist Episcopal Church

The Rev. Phil Tom
Executive Director
International Council of Community Churches

Senior Bishop McKinley Young
Presiding Prelate, Third Episcopal District
African Methodist Episcopal Church

###

Media Contact:
Rev. Dr. Maidstone Mulenga
Director of Communications – Council of Bishops
The United Methodist Church
mmulenga@umc-cob.org
202-748-5172

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Ed Kilgore over at NY Magazine also nails Sessions’s noxious hypocrisy:

http://nymag.com/daily/intelligencer/2018/06/no-jeff-sessions-separating-families-isnt-biblical.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer-%20June%2015%2C%202018&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

No, Jeff Sessions, Separating Kids From Their Parents Isn’t ‘Biblical’

By

St. Paul would probably like Jeff Sessions to keep his name out of his mouth. Photo: Getty Images

When he spoke to a law enforcement group in Indiana today, the attorney general of the United States was clearly angry about religious objections to his administration’s immigration policies. He may have had in mind incidents like this very important one this week (as notedby the National Catholic Reporter):

The U.S. bishops began their annual spring assembly by condemning recent immigration policies from the Trump administration that have separated families at the U.S.-Mexico border and threatened to deny asylum for people fleeing violence.

The morning session here began with a statement, but by its end escalated to numerous bishops endorsing the idea of sending a delegation to the border to inspect the detention facilities where children are being kept and even floating the possibility of “canonical penalties” for those involved in carrying out the policies.

Being a Protestant and all, Sessions has no fear of the kind of “canonical penalties” Catholic bishops might levy. But perhaps he is aware of an official resolution passed by his own United Methodist Church in 2008 (and reaffirmed in 2016), which reads in part:

The fear and anguish so many migrants in the United States live under are due to federal raids, indefinite detention, and deportations which tear apart families and create an atmosphere of panic. Millions of immigrants are denied legal entry to the US due to quotas and race and class barriers, even as employers seek their labor. US policies, as well as economic and political conditions in their home countries, often force migrants to leave their homes. With the legal avenues closed, immigrants who come in order to support their families must live in the shadows and in intense exploitation and fear. In the face of these unjust laws and the systematic deportation of migrants instituted by the Department of Homeland Security, God’s people must stand in solidarity with the migrants in our midst.

So Sessions decided he’d smite all these ninny-faced liberal clerics with his own interpretation of the intersection of Christianity and immigration:

In his remarks, Sessions hit back at the “concerns raised by our church friends about separating families,” calling the criticism “not fair or logical” and quoting scripture in his defense of the administration’s tough policies.

“Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13 to obey the laws of the government because God has ordained them for the purpose of order,” Sessions said. “Orderly and lawful processes are good in themselves and protect the weak and lawful.”

Those who are unacquainted with the Bible should be aware that the brief seven-verse portion of St. Paul’s Epistle to the Romans has been throughout the ages cited to oppose resistance to just about every unjust law or regime you can imagine. As the Atlantic’s Yoni Appelbaum quickly pointed out, it was especially popular among those opposing resistance to the Fugitive Slave Act in the run-up to the Civil War. It was reportedly Adolf Hitler’s favorite biblical passage. And it was used by defenders of South African Apartheid and of our own Jim Crow.

Sessions’s suggestion that Romans 13 represents some sort of absolute, inflexible rule for the universe has been refuted by religious authorities again and again, most quoting St. Augustine in saying that “an unjust law is no law at all,” and many drawing attention to the overall context of Paul’s epistle, which was in many respects the great charter of Christian liberty and the great rebuke to legalism in every form. Paul was pretty clearly rejecting a significant sentiment among Christians of his day: that civil authorities deserved no obedience in any circumstance.

Beyond that, even if taken literally, in Romans 13 Paul is the shepherd telling the sheep that just as they must love their enemies, they must also recognize that the wolf is part of a divinely established order. In today’s context, Jeff Sessions is the wolf, and no matter what you think of his policies, he is not entitled to quote the shepherd on his own behalf. Maybe those desperate women and men at the border should suck it up and accept their terrible lot in life and defer to Jeff Sessions’s idolatry toward those portions of secular immigration law that he and his president actually support. But for the sake of all that’s holy, don’t quote the Bible to make the Trump administration’s policies towards immigrant families sound godly. And keep St. Paul out of it.

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Last, but certainly not least among my favorite rebuttals to Sessions is this article from Marissa Martinelli at Slate incorporating a video clip from John Oliver which captures the smallness, meanness, and lack of humane values of Sessions perfectly:

https://slate.com/culture/2018/06/stephen-colbert-quotes-the-bible-to-jeff-sessions-video.html

Stephen Colbert Tells Jeff Sessions to Go Reread the Bible Before He Defends Trump’s Child Separation Policy

By

There’s nothing funny about the Trump administration’s policy of separating children from their parents at the border, which doesn’t make it an ideal topic for late night hosts. Stephen Colbert acknowledged that difficulty directly on The Late Show on Thursday night, explaining that he usually only addresses tragic stories on the show if everyone is already talking about them. But he’s willing to make an exception:

That’s my job: to give you my take on the conversation everyone’s already having. With any luck, my take is funnier than yours, or I would be watching you. But this story is different, because this is the conversation everybody should be having. Attorney General and man dreaming of legally changing his name to “Jim Crow” Jeff Sessions has instituted a new policy to separate immigrant kids from their parents at the border.

An estimated 1,358 children have been taken from their families so far, with some officials reportedly telling their parents that the children were being taken away for a bath, only to never return them. “Clearly, no decent human being could defend that,” said Colbert. “So Jeff Sessions did.”

Colbert, who is devoutly Catholic, especially took issue with Sessions quoting the bible—specifically, Romans 13, the same passage used to defend slavery in the 1840s—to justify the policy as morally acceptable. Colbert suggested that Sessions might want to go back and reread that bible, and quoted Romans 13:10 to him. “Love your neighbor as yourself. Love does no harm to a neighbor. Therefore love is the fulfillment of the law,” he recited, before ripping into Sessions’s use of the bible as a smokescreen: “I’m not surprised Sessions didn’t read the whole thing. After all, Jesus said, ‘Suffer the children to come unto me’ but I’m pretty sure all Sessions saw was the words children and suffer and said ‘I’m on it.’”

Colbert concluded the segment by borrowing a phrase from Samantha Bee: “If we let this happen in our name, we are a feckless … country.”

Here’s a link to the video:

https://www.youtube.com/watch?v=j4KaLkYxMZ8#action=share

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A NOTE TO MY WAYWARD CHILD, JEFF

I am very concerned about our relationship, Jeff.

For I was hungry Jeff, and you gave me nothing to eat.

I was thirsty, Jeff, and you gave me nothing to drink. 

I was a stranger seeking refuge, Jeff, and you did not invite me in.

I needed clothes, Jeff, and you clothed me only in the orange jumpsuit of a prisoner.

I was sick and in a foul prison you called “detention,” Jeff, and you mocked me and did not look after me.

I said “suffer the children to come unto me,” Jeff, and you made my children suffer.

In your arrogant ignorance, Jeff, you might ask when did I see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?’

But, Jeff, I was right there before you, in a caravan with my poor sisters, brothers, and children, having traveled far, seeking shelter and refuge from mistreatment and expecting mercy and justice under your laws. But, in your prejudice and ignorance, Jeff, you did not see me because I did not look like one of you. For you see, Jeff, as you did not show love, mercy, forgiveness, kindness, and human compassion for the least of my children, you did not do for me.

And so, Jeff, unless you repent of your wasted life of sins, selfishness, meanness, taking my name and teachings in vain, and mistaking your often flawed view of man’s laws for my Father’s will, you must go away to eternal punishment. But, the poor, the vulnerable, the abused, and the children who travel with me and those who give us aid, compassion, justice, and mercy will accompany me to eternal life.

For in truth, Jeff, although you yourself might be immoral, none of God’s children is ever “illegal” to  Him. Each time you spout such nonsense, you once again mock me and my Father by taking our names, teachings, and values in vain.

Wise up, Jeff, before it’s too late.

Your Lord & Would Be Savior,

J.C.

 

 

 

HON. JEFFREY CHASE: Speaking Out Against The “Notable Minority” Of U.S. Immigration Judges Who Demonstrated Bias Against Women & Asylum Seekers – “Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death. Will there be any consequences for their actions? Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision? Or would that have been viewed as dangerous?”

Women Need Not Apply

Those looking for legal analysis should read no further.  The following is a cry from the heart.

The respondent’s personal nightmare began the year after her marriage.  For the next 15 years, she was subjected to relentless physical, sexual, and emotional abuse.

It is most apt that Donald Trump became president by beating a woman.  His campaign historically provoked millions to march in angry protest of his denigration of women on his first full day in office.

“The violence inflicted on [her] took many forms.  Her husband beat her repeatedly, bashing her against the wall and kicking her, including while she was pregnant.  He raped her on countless occasions.”

On Monday, Trump’s Attorney General announced that women who are victims of domestic violence should no longer be deemed to merit protection from our government in the form of political asylum.

Sessions’ action was shockingly tone deaf.  As the wonderful Rebecca Solnit wrote in her 2013 essay “The Longest War:” “We have an abundance of rape and violence against women in this country and on this Earth, though it’s almost never treated as a civil rights or human rights issue, or a crisis, or even a pattern.  Violence doesn’t have a race, a class, a religion, or a nationality, but it does have a gender.”  The year after Solnit wrote those words, our Department of Justice took a step in the right direction.  In recognizing domestic violence as a basis for asylum, our government was finally recognizing such gender-based abuse as a human rights issue, at least in the limited forum of immigration law.

“He also frequently threatened to kill her, at times holding a knife to her neck, and at other times brandishing a gun or, while she was pregnant, threatening to hang her from the ceiling by a rope.”  The above were supported by sworn statements provided by the respondents’ neighbors.

It is only very recently that our society has begun to hold accountable those who commit gender-based abuses against women.  #MeToo is a true civil rights movement, one that is so very long overdue.  In opposing such movement, Jeff Sessions is casting himself as a modern day George Wallace.  It bears repeating that no one, no one, was challenging the settled precedent that victims of domestic violence may be granted asylum as members of a particular social group.  When the precedent case was before the Board of Immigration Appeals, the Department of Homeland Security, i.e. the enforcement agency prosecuting the case, filed a brief in which it conceded that the group consisting of “married women in Guatemala who are unable to leave their relationship” satisfied all of the legal criteria, and was therefore a proper particular social group under the law.  No one has appealed or challenged that determination in the four years since.  Who is Jeff Sessions, who has never practiced immigration law in his life, to just toss out such determination because he and only he disagrees?

The respondent’s “husband controlled, humiliated, and isolated her from others.  He insulted her ‘constantly,’ calling her a ‘slut’ or ‘dog.’  He did not want her to work outside the house and believed ‘a woman’s place was in the home like a servant.’  When he came home in the middle of the night, he forced her out of bed to serve him food, saying things like ‘Bitch, feed me.”

Like Wallace before him, who in 1963 stood in front of the door of the University of Alabama trying in vain to block the entry of four black students, Sessions is trying to block a national movement whose time has come.  As with Wallace and the Civil Rights Movement, justice will eventually prevail.  But now as then, people deserving of his protection will die in the interim.

“Although [her] husband frequently slept with other women, he falsely accused her of infidelity, at times removing her undergarments to inspect her genitals.  He also beat their children in front of her, causing her serious psychological damage.”

The AG’s decision was intentionally released during the first day of the Immigration Judges’ Training Conference.  There have been ideological-based appointments of immigration judges under both the Trump and Bush administrations.  Several persons present at the conference reported that when the decision was announced, some immigration judges cheered. It was definitely a minority; the majority of immigration judges are very decent, caring people.  But it was more than a few; one of my sources described it as “many,” another as “a noteworthy minority.”

Think about that: some federally appointed immigration judges cheered the fact that women who had been violently raped and beaten in their country can no longer find refuge here, and will be sent back to face more violence, and possibly death.  Will there be any consequences for their actions?  Were the many outstanding immigration judges who have been proud to grant such cases in the past, who were saddened and sickened by this decision, able to openly jeer or weep or curse this decision?  Or would that have been viewed as dangerous?

The respondent “believes her life will be in danger” if returned to her country, “where her ex-husband, supported by his police officer brother, has vowed to kill her.  She does not believe there is anywhere” in her country “she could find safety.

Victims of domestic violence will continue to file applications for asylum.  They will argue before immigration judges that their claims meet the legal criteria even under the AG’s recent decision.  Unfortunately, some of those applicants will have their cases heard by immigration judges who, when they heard that the woman whose claim was described in the italicized sections was denied asylum by Jeff Sessions, and will now likely be deported to suffer more such abuse or death, cheered.

The sections in italics are the facts of the asylum-seeker in Matter of A-B-, (including quotes from her appeal brief) who was denied asylum on Monday by Jeff Sessions.

Copyright 2018 Jeffrey S. Chase.  All rights reserved.

 

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

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Look no further to understand why the U.S. Immigration Courts have been struggling for years with issues of quality control, bias, prejudice, and un-judicial conduct. That’s notwithstanding that the vast majority of us were working hard to be “honest referees,” set good examples, and treat those coming before us with dignity, respect, fairness, and humanity. A few colleagues who “don’t get the message” or who operate in a “parallel universe” actually bring the whole system into disrepute and undermine the efforts of those functioning as fair and independent judges.
And, make no mistake about it, Jeff Sessions aims to institutionalize bias, disrepute, and “worst judicial practices.” He’s designing a system that will reward scofflaws like him while punishing and forcing out judges who conscientiously adhere to their oath to put Due Process first! Look at what’s happening in the rest of the DOJ under Sessions, as talented and conscientious career attorneys are being displaced by political hacks with law degrees.
Following A-R-C-G-, the BIA, an inherently conservative tribunal if ever there was one, had made some modest progress in reigning in the minority of Immigration Judges who historically had anti-asylum attitudes, particularly toward women from the Northern Triangle. Sessions intentionally derailed such efforts and gave ugly encouragement to judges to “do whatever is necessary” to deny virtually all PSG claims that have provided refuge for Central Americans.
An independent U.S. Immigration Court with a strong and diverse Appellate Division and a merit selection system for judges supervised by the Article III Courts would be a necessary initial step in correcting these defects while establishing a system that will fairly and efficiently decide cases — without “bogus gimmicks” like trying to block access to entire groups of migrants, intentionally blocking access to counsel, using the court system as a “deterrent,” or using cruel, inhuman, and degrading detention practices to duress migrants into surrendering their already limited rights.
Eventually, as Jeffrey says, Sessions’s White Nationalist program of “turning back the clock” for women of color and other asylum seekers will fail. The current “Rogue State,” will be replaced by a Government re-committed to Due Process for all, regardless of status, and to re-establishing the U.S. as a leader in promoting and respecting international standards for refugee protection.
Inevitably, many, including defenseless women and children, will die unnecessarily, be tortured, and suffer other unspeakable human rights abuses during our struggle to end the “Trumpist Rogue State” and re-establsh the principles of liberal democracy and humanitarian international leadership in the United States. While such deaths and human rights abuses might be an inevitable result of the abusive reign of Trump and Sessions, nobody, particularly those claiming to be fair and impartial judges, should cheer or glory in that obscene result!
PWS
06-15-18

MORE ARTICLES FEATURE “GANG OF RETIRED JUDGES’ STATEMENT” RE: SESSIONS’S OUTRAGEOUS ATTACK ON SETTLED PRINCIPLES OF PROTECTION LAW! — Media Exposing Corrupt, Inherently Unfair, Biased “Court” System Where The Prejudiced Prosecutor “Cooks” The Results to His Liking! — Jeff Sessions Degrades The American Legal System & Our National Values Each Day He Remains In Office!

“Group Leader” Hon. Jeffrey Chase forwards these items:

Samantha Schmidt (long-lost “Cousin Sam?” sadly, no, but I’d be happy to consider her an honorary member of the “Wauwatosa Branch” of the Wisconsin Schmidt Clan) writes for the Washington Post:

Aminta Cifuentes suffered weekly beatings at the hands of her husband. He broke her nose, burned her with paint thinner and raped her.

She called the police in her native Guatemala several times but was told they could not interfere in a domestic matter, according to a court ruling. When Cifuentes’s husband hit her in the head, leaving her bloody, police came to the home but refused to arrest him. He threatened to kill her if she called authorities again.

So in 2005, Cifuentes fled to the United States. “If I had stayed there, he would have killed me,” she told the Arizona Republic.

And after nearly a decade of waiting on an appeal, Cifuentes was granted asylum. The 2014 landmark decision by the Board of Immigration Appeals set the precedent that women fleeing domestic violence were eligible to apply for asylum. It established clarity in a long-running debate over whether asylum can be granted on the basis of violence perpetrated in the “private” sphere, according to Karen Musalo, director for the Center for Gender & Refugee Studies at the University of California Hastings College of the Law.

But on Monday, Attorney General Jeff Sessions overturned the precedent set in Cifuentes’s case, deciding that victims of domestic abuse and gang violence generally will not qualify for asylum under federal law. (Unlike the federal courts established under Article III of the Constitution, the immigration court system is part of the Justice Department.)

For critics, including former immigration judges, the unilateral decision undoes decades of carefully deliberated legal progress. For gender studies experts, such as Musalo, the move “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.”

“If we say in the year 2018 that a woman has been beaten almost to death in a country that accepts that as almost the norm, and that we as a civilized society can deny her protection and send her to her death?” Musalo said. “I don’t see this as just an immigration issue … I see this as a women’s rights issue.”

. . . .

A group of 15 retired immigration judges and former members of the Board of Immigration Appeals wrote a letter in response to Sessions’s decision, calling it an “affront to the rule of law.”

The Cifuentes case, they wrote, “was the culmination of a 15 year process” through the immigration courts and Board of Immigration Appeals. The issue was certified by three attorneys general, one Democrat and two Republican. The private bar and law enforcement agencies, including the Department of Homeland Security, agreed with the final determination, the former judges wrote. The decision was also supported by asylum protections under international refugee treaties, they said.

“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the former judges wrote.

Courts and attorneys general have debated the definition of a “particular social group” since the mid-1990s, according to Musalo.

“It took the refugee area a while to catch up with the human rights area of law,” Musalo said.

A series of cases led up to the Cifuentes decision. In 1996, the Board of Immigration Appeals established that women fleeing gender-based persecution could be eligible for asylum in the United States. The case, known as Matter of Kasinga, centered on a teenager who fled her home in Togo to escape female genital cutting and a forced polygamous marriage. Musalo was lead attorney in the case, which held that fear of female genital cutting could be used as a basis for asylum.

“Fundamentally the principle was the same,” as the one at stake in Sessions’s ruling, Musalo said. Female genital cutting, like domestic violence in the broader sense, generally takes place in the “private” sphere, inflicted behind closed doors by relatives of victims.

Musalo also represented Rody Alvarado, a Guatemalan woman who fled extreme domestic abuse and, in 2009, won an important asylum case after a 14-year legal fight. Her victory broke ground for other women seeking asylum on the basis of domestic violence.

Then, after years of incremental decisions, the Board of Immigration Appeals published its first precedent-setting opinion in the 2014 Cifuentes case, known as Matter of A-R-C-G.

“I actually thought that finally we had made some progress,” Musalo said. Although the impact wasn’t quite as pronounced as many experts had hoped, it was a step for women fleeing gender-based violence in Latin America and other parts of the world.

Now, Musalo says, Sessions is trying to undo all that and is doing so at a particularly monumental time for gender equality in the United States and worldwide.

“We’ve gone too far in society with the MeToo movement and all of the other advances in women’s rights to accept this principle,” Musalo said.

“It shows that there are these deeply entrenched attitudes toward gender and gender equality,” she added. “There are always those forces that are sort of the dying gasp of wanting to hold on to the way things were.”

. . . .

Paul Wickham Schmidt, a retired immigration judge and former chairman of the Board of Immigration Appeals, wrote on his blog that Sessions sought to encourage immigration judges to “just find a way to say no as quickly as possible.” (Schmidt authored the decision in the Kasinga case extending asylum protection to victims of female genital mutilation.)

Sessions’s ruling is “likely to speed up the ‘deportation railway,’ ” Schmidt wrote. But it will also encourage immigration judges to “cut corners, and avoid having to analyze the entire case,” he argued.

“Sessions is likely to end up with sloppy work and lots of Circuit Court remands for ‘do overs,’ ” Schmidt wrote. “At a minimum, that’s going to add to the already out of control Immigration Court backlog.”

https://www.washingtonpost.com/news/morning-mix/wp/2018/06/12/back-to-the-dark-ages-sessions-asylum-ruling-reverses-decades-of-womens-rights-progress-critics-say/?utm_term=.47e7a6845c9a

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Picking on our most vulnerable and denying them hard-earned legal protections that had been gained incrementally over the years. Certainly, can’t get much lower than that!

Whether you agree with Sessions’s reasoning or not, nobody should cheer or minimize the misfortune of others as Sessions does! The only difference between Sessions or any Immigration Judge and a refugee applicant is luck. Not merit! I’ve met many refugees, and never found one who wanted to be a refugee or even thought they would have to become a refugee.

An Attorney General who lacks fundamental integrity, human values, and empathy does not belong at the head of this important judicial system.

In my career, I’ve probably had to return or sign off on returning more individuals to countries where they didn’t want to go than anybody involved in the current debate. Some were good guys we just couldn’t fit into a badly flawed and overly restrictive system; a few were bad guys who deserved to go; some, in between. But, I never gloried in, celebrated, or minimized anyone’s suffering, removal, or misfortune.  Different views are one thing; overt bias and lack of empathy is another.

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From PRI.com:

Tania Karris and Angilee Shah report for PRI:

Attorney General Jeff Sessions’ decision on asylum seekers is 30 pages long.

Advocates and many judges say that the decision is extraordinary, not only because the attorney general took steps to overrule the court’s’ prior rulings, but because the decision that victims of certain kinds of violence can qualify for asylum has been previously reviewed over the course of decades.

A group of 15 former immigration judges signed a letter on June 11 calling the decision “an affront to the rule of law.” They point out that the decision Sessions overturned, a precedent cited in the “Matter of A-B-” decision that he was reviewing, had been certified by three attorney generals before him: one Democrat and two Republicans.

“For reasons understood only by himself, the Attorney General today erased an important legal development that was universally agreed to be correct,” the letter says. “Today we are deeply disappointed that our country will no longer offer legal protection to women seeking refuge from terrible forms of domestic violence from which their home countries are unable or unwilling to protect them.”

In his decision, Sessions said “private criminal activity,” specifically being a victim of domestic violence, does not qualify migrants for asylum. Rather, victims have to show each time that they are part of some distinct social group (a category in international and US law that allows people to qualify for refugee status) and were harmed because they are part of that group — and not for “personal reasons.”

Sessions said US law “does not provide redress for all misfortune. It applies when persecution arises on the account of membership in a protected group and the victim may not find protection except by taking refuge in another country.”

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-government actors will not qualify for asylum,” the decision reads. In a footnote, he also says that few of these cases would merit even being heard by judges in the first place because they would not pass the threshold of “credible fear.”

But attorney Karen Musalo says every case has to be decided individually. Muslao is the director of the Center for Gender and Refugee Studies at the UC Hastings College of the Law and has been representing women in immigration hearings for decades. She is concerned that some asylum officers will see this decision as a directive to turn people away from seeing a judge. “That’s patently wrong,” she says.

US Citizenship and Immigration Services, the agency that conducts initial screenings for asylum cases (known as “credible fear interviews”) did not respond to a request for information about how the decision might change the work they do.

Musalo’s is among the attorneys representing A-B-, a Salvadoran woman identified only by her initials in court filings, whose case Sessions reviewed. Her center was part of a group that submitted a brief of over 700 pages in the case; that brief was not cited in Sessions’ decision. The brief reviewed impunity in El Salvador, for example, for those who commit violence against women and also had specific evidence about A-B- and how local police failed to protect her from domestic violence.

“What’s surprising is how deficient and flawed his understanding of the law and his reasoning is. The way he pronounces how certain concepts in refugee law should be understood and interpreted is sort of breath-taking,” says Musalo. “He was reaching for a result, so he was willing to distort legal principles and ignored the facts.”

To Musalo, this case is about more than asylum, though. She says it’s a surprising, damaging twist in the broader #MeToo movement. Sessions is “trying to turn back the clock on how we conceptualize protections for women and other individual,” she says. “In the bigger picture of ending violence against women, that’s just not an acceptable position for our country to take and we’re going to do everything we can to reverse that.”

That includes monitoring cases in the system now and making appeals in federal courts, which could overturn Sessions’ decision. Congress, Musalo says, could also take action.

Because Sessions controls the immigration courts, which are administrative courts that are part of the Department of Justice rather than part of the judiciary branch, immigration judges will have to follow his precedent in determining who qualifies for asylum. District court and other federal judges

Ashley Tabaddor, an immigration judge and president of the National Association of Immigration Judges, said she was troubled by Sessions’ lack of explanation for why he intervened in this particular case.

The attorney general’s ability to “exercise veto power in our decision-making is an indication of why the court needs true independence” from the Justice Department, Tabaddor told the New York Times.

Immigration judge Dana Leigh Marks, the immigration judges association past president, says the group has been advocating for such independence for years.

“We have a political boss. The attorney general is our boss and political considerations allow him, under the current structure, to take certain cases from the Board of Immigration Appeals and to choose to rule on those cases in order to set policy and precedent,” she says. “Our organization for years has been arguing that … there’s a major flaw in this structure, that immigration courts are places where life and death cases are being heard.”

Therefore, she adds, they should be structured “like a traditional court.”

Sessions’ decision will have immediate implications for domestic violence victims currently seeking asylum in the US.

Naomi, who asked to be identified by a pseudonym because her case is pending in New York, is from Honduras. Her former boyfriend there threw hot oil at her, but hit her 4-year-old son instead. The boyfriend threatened them with a gun — she fled, ultimately coming to the US where she has some family. She told us that she tried to get the police to help, but they wouldn’t.

Naomi’s attorney, Heather Axford with Central American Legal Assistance in Brooklyn, said they might need to try a new argument to keep her client in the US.

“We need to come up with new ways to define a particular social group, we need to explore the possibility of when the facts lend themselves to a political opinion claim, and we need to make claims under the Convention Against Torture,” she told WNYC Monday. The US signed and ratified the Convention Against Torture in 1994.

Mary Hansel, deputy director of the International Human Rights Clinic at Loyola Law School in Los Angeles, says the Sessions decision goes against US human rights obligations.

“An evolving body of international legal authorities indicates that a state’s failure to protect individuals (whether citizens or asylum seekers) from domestic violence may actually amount to torture or cruel, inhuman or degrading treatment,” Hansel writes in an email to PRI. In international human rights law, states need to protect individuals from harm. “Essentially, when women are forced to endure domestic violence without adequate redress, states are on the hook for allowing this to happen,”

Naomi’s story is horrific, but it is not unusual for women desperate to escape these situations to flee to the US. Many of these women had a high bar for winning an asylum case to begin with. They have to provide evidence that they were persecuted and documents to support their case. Sometimes, lawyers call expert witnesses to explain what is happening in their country of origin. Language barriers, lack of access to lawyers, contending with trauma and often being in detention during proceedings also contribute to making their cases exceptionally difficult.

Sessions’ decision will make it even harder.

In justifying tighter standards, Sessions often claims that there is fraud in the system and that asylum seekers have an easy time arguing their cases.

“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States” Sessions told Phoenix radio station KTAR in May. “Well, that’s obviously false, but some judges have gone along with that.”

Unlike other court proceedings, immigrants who do not have or cannot afford attorneys are not guaranteed legal counsel. There are no public defenders in immigration court. And just 20 percent of those seeking asylum are represented by attorneys, according to a report by the Transactional Records Access Clearinghouse at Syracuse University.

The Trump administration has taken several steps to clear the 700,000 cases pending in immigration court.  At the end of May, Sessions instituted a quota system for immigration judges, requiring them to decide 700 cases each year and have fewer than 15 percent of cases be overturned on appeal.

Marks told NPR that the quota could hurt judicial independence. “The last thing on a judge’s mind should be pressure that you’re disappointing your boss or, even worse, risking discipline because you are not working fast enough,” she said.

According to TRAC, the courts decided more than 30,000 cases in the 2017 fiscal year compared to about 22,000 in 2016. Some 61.8 percent of these cases were denied; the agency does not report how many of the claims were due to domestic or gang violence, or for other reasons. For people from Central America, the denial rate is 75 to 80 percent. Ninety percent of those who don’t have attorneys lose their cases.

Correction: An earlier version of this story incorrectly said Sessions’ overturned a decision in the “Matter of A-B-.”

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Here’s another one from Bea Bischoff at Slate:

How the attorney general is abusing a rarely used provision to rewrite legal precedent.

Photo illustration: Attorney General Jeff Sessions looking down against a background of written script.
Photo illustration by Slate. Photos by Alex Wong/Getty Images, Library of Congress.

On Monday, Attorney General Jeff Sessions told a group of immigration judges that while they are responsible for “ensur[ing] that our immigration system operates in a manner that is consistent with the laws,” Congress alone is responsible for rewriting those laws. Sessions then announced that he would be issuing a unilateral decision regarding asylum cases later in the day, a decision he told the judges would “provide more clarity” and help them “rule consistently and fairly.” The decision in Matter of A-B-, which came down shortly after his remarks, reverses asylum protections for victims of domestic violence and other persecution.

During his speech Sessions framed his decision in Matter of A-B- as a “correct interpretation of the law” that “advances the original intent” of our immigration statute. As a matter of law, Sessions’ decision is disturbing. It’s also alarming that this case ended up in front of the attorney general to begin with. Sessions is abusing a rarely used provision to rewrite our immigration laws—a function the attorney general himself said should be reserved for Congress. His zealous self-referral of immigration cases has been devastatingly effective. Sessions is quietly gutting immigration law, and there’s nothing stopping him from continuing to use this loophole to implement more vindictive changes.

Normally, an immigration judge is the first to hear and decide an immigration case. If the case is appealed, it goes in front of the Board of Immigration Appeals before being heard by a federal circuit court. In a peculiarity of immigration law, however, the attorney general is permitted to pluck cases straight from the Board of Immigration Appeals for personal review and adjudication. Sessions, who was famously denied a federal judgeship in 1986 because of accusations that he’d made racist comments, now seems to be indulging a lingering judicial fantasy by exploiting this provision to the fullest. Since January 2018, Sessions has referred four immigration cases to himself for adjudication, putting him on track to be one of the most prolific users of the self-referral provision since 1956, when attorneys general stopped regularly reviewing and affirming BIA cases. By comparison, Eric Holder and Loretta Lynch certified a total four cases between them during the Obama administration.

Sessions is not using these cases to resolve novel legal issues or to ease the workload of DHS attorneys or immigration judges. Instead, he is using the self-referral mechanism to adjudicate cases that have the most potential to limit the number of people granted legal status in the United States, and he’s disregarding the procedural requirements set up to control immigration appeals in the process.

A close look at the Matter of A-B- case shows exactly how far out of bounds Sessions is willing to go. Matter of A-B- began when Ms. A-B- arrived in the United States from El Salvador seeking asylum. Ms. A-B- had been the victim of extreme brutality at the hands of her husband in El Salvador, including violent attacks and threats on her life. The local police did nothing to protect her. When it became clear it was only a matter of time before her husband tried to hurt her again, Ms. A-B- fled to the United States. Upon her arrival at the U.S. border, Ms. A-B- was detained in Charlotte, North Carolina. Her asylum case was set to be heard by Judge Stuart Couch, a notoriously asylum-averse judge who is especially resentful of claims based on domestic violence.

During her trial, Ms. A-B- testified about the persecution she’d faced at the hands of her husband and provided additional evidence to corroborate her claims. Despite the extensive evidence, Judge Couch found Ms. A-B-’s story was not credible and rejected her asylum claim. Ms. A-B- then appealed her case to the BIA. There, the board unanimously found that Ms. A-B-’s testimony was in fact credible and that she met the requirements for asylum. Per their protocol, the BIA did not grant Ms. A-B- asylum itself but rather sent the case back down to Judge Couch, who was tasked with performing the required background checks on Ms. A-B- and then issuing a grant of asylum in accordance with their decision.

Judge Couch, however, did not issue Ms. A-B- a grant of asylum, even after the Department of Homeland Security completed her background checks. Instead, he improperly tried to send the case back to the BIA without issuing a new decision, apparently because he was personally unconvinced of the “legal validity” of asylum claims based on domestic violence. Before the BIA touched the case again, Attorney General Sessions decided he ought to adjudicate it himself.

After taking the case, Sessions asked for amicus briefs on the question of “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum.” The question of whether private criminal activity like domestic violence can in some instances lead to a grant of asylum had not been at issue in Matter of A-B-. The issue raised in Ms. A-B-’s case was whether her claims were credible, not whether asylum was available for victims of private criminal activity. In fact, persecution at the hand of a private actor who the government cannot or will not control is contemplated in the asylum statute itself and has been recognized as a grounds for asylum for decades. The question of whether domestic violence could sometimes warrant asylum also appeared to be firmly settled in a 2014 case known as Matter of A-R-C-G-.

The question the attorney general was seeking to answer was actually so settled that the Department of Homeland Security, the agency responsible for prosecuting immigration cases, submitted a timid brief to Sessions politely suggesting that he reconsider his decision to take on this case. “This matter does not appear to be in the best posture for the Attorney General’s review,” its brief argued, before outright acknowledging that the question of whether private criminal activity can form the basis of an asylum claim had already been clearly answered by the BIA. The attorney general, despite his alleged desire to simplify the jobs of immigration prosecutors and judges, ignored DHS’s concerns and denied the agency’s motion. “[BIA] precedent,” Sessions wrote in his denial, “does not bind my ultimate decision in this matter.” Sessions, in short, was going to rewrite asylum law whether DHS liked it or not.

Sessions not only ignored DHS concerns about the case but, as 16 former immigration judges pointed out in their amicus brief, trampled over several crucial procedural requirements in his zeal to shut off asylum eligibility for vulnerable women. First, he failed to require Couch, the original presiding judge, to make a final decision before sending the case back to the BIA. The regulations controlling immigration appeals allow an immigration judge to send a case to the BIA only after a decision has been issued by the original judge. Next, Sessions failed to wait for the BIA to adjudicate the case before snapping it up for his personal analysis. Even if Judge Couch hadn’t improperly sent the case back to the BIA, Sessions was obligated to wait for the BIA to decide the case before intervening. The self-referral provision permits the attorney general to review BIA decisions, not cases that are merely awaiting adjudication.

Finally, and perhaps most tellingly, the question Sessions sought to answer in this case, namely “whether … being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum” was not a question considered by any court in Matter of A-B-. Rather, it was one Sessions seemingly lifted directly from hardline immigration restrictionists, knowing that the answer had the potential to all but eliminate domestic violence–based asylum claims.

On June 11, after receiving 11 amicus briefs in support of asylum-seekers like Ms. A-B- and only one against, the attorney general ruled that private activity is not grounds for asylum, including in cases of domestic violence. Ms. A-B-’s case, in Sessions’ hands, became a vehicle by which to rewrite our asylum laws without waiting on Congress.

The attorney general’s other self-referred decisions are likewise plagued by questionable procedure. In Matter of E-F-H-L-, Sessions seized on a case from 2014 as an opportunity undo the longstanding requirement that asylum applicants be given the opportunity for a hearing. Like in Matter of A-B-, Sessions did procedural somersaults to insert himself into Matter of E-F-H-L-, using a recent decision by the immigration judge in the case to close the proceedings without deciding the asylum claim as grounds to toss out the original BIA ruling on the right to a hearing. Without so much as a single phone call to Congress, Sessions effectively rescinded the requirement that asylum seekers are entitled to full hearings. He also mandated that the judge reopen Mr. E-F-H-L-’s case years after he thought he was safe from deportation.

In Matter of Castro-Tum, a case Sessions referred to himself in January, he used his powers to make life more difficult for both immigrants and immigration judges by banning the use of “administrative closure” in removal proceedings. Administrative closure allowed immigration judges to choose to take cases off their dockets, indefinitely pausing removal proceedings. In Matter of Castro-Tum, Sessions made a new rule that sharply curtails the use of the practice and allows DHS prosecutors to ask that judges reschedule old closed cases. The result? The potential deportation of more than 350,000 immigrants whose cases were previously closed. In addition, judges now have so many hearings on their dockets that they are scheduling trials in 2020.

As CLINIC, an immigration advocacy group, pointed out, Sessions appeared be using his decision in Matter of Castro-Tum to improperly develop a new rule on when judges can administratively close immigration cases. Normally, such a new rule would need to go through a fraught bureaucratic process under the Administrative Procedures Act before being implemented. Instead of going through that lengthy process, however, Sessions simply decreed the new rule in his decision, bypassing all the usual procedural requirements.

The cases that Sessions has chosen to decide and the procedural leaps he’s taken to adjudicate them show that his goal is to ensure that fewer people are permitted to remain in the United States, Congress be damned. So far, his plan seems to be working. As a result of Sessions’ decision in Matter of A-B-, thousands of women—including many of the women who are currently detained after having their children torn from their arms at our border—will be shut out of asylum proceedings and deported to their countries of origin to await death at the hands of their abusers.

While Sessions’ decisions trump BIA precedent, they do not override precedent set by the federal circuit courts on immigration matters, much of which contradicts the findings he’s made in his decisions. While immigration attorneys are scrambling to protect their clients with creative new advocacy strategies, the only real way to stop Sessions’ massacre is to listen to him when he says Congress needs to fix our immigration laws. In doing so, the legislative branch could not only revise our immigration system to offer meaningful paths to legal status for those currently shut out of the system, but could eliminate the needless attorney general review provision altogether and force Sessions to keep his hands out of immigration case law.

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Sessions’s shameless abuses of our Constitution, Due Process, fundamental fairness, the true rule of law, international standards, common morality, and basic human values are beyond astounding.

I agree with Bea that this requires a legislative solution to 1) establish once and for all that gender based asylum fits squarely within the “particular social group” definition; and 2) establish a U.S. Immigration Court that is independent of the Executive Branch.

A few problems, though:

  • Not going to happen while the GOP is in control of all branches of Government. They can’t even get a “no brainer” like DACA relief done. Trump and his White Nationalist brigade including Sessions are now firmly in control.
  • If you don’t win elections, you don’t get to set the agenda. Trump’s popularity has consistently been below 50%. Yet the majority who want to preserve American Democracy and human decency have let the minority control the agenda. If good folks aren’t motivated to vote, the country will continue its descent into the abyss.
  • No more Obama Administrations, at least on immigration. The Dreamer fiasco, the implosion of the Immigration Courts, and the need for gender protections to be written into asylum law were all very well-known problems when Obama and the Dems swept into office with a brief, yet significant, veto proof Congress. The legislative fix was hardly rocket science. Yet, Obama’s leadership failed, his Cabinet was somewhere between weak and incompetent on immigration, and the Dems on the Hill diddled. As a result “Dreamers” have been left to dangle in the wind — a bargaining chip for the restrictionist agenda; children are being abused on a daily basis as a matter of official policy under Sessions; women and children are being returned to death and torture; and the U.S. Immigration Courts have abandoned Due Process and are imploding in their role as a “junior Border Patrol.” Political incompetence and malfeasance have “real life consequences.” And, they aren’t pretty!

There have been some bright spots for the Dems in recent races. But, the November outcome is still totally up for grabs. If the Trump led GOP continues its stranglehold on all branches of Government, not only will children suffer and women die, but there might not be enough of American Democracy left to save by 2020.

Get out the vote! Remove the kakistocracy!

PWS

06-13-18