"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Federal Judge Orders U.S. To Release Migrant Children During Pandemic
Children held for more than 20 days at certain ICE-run detention centers should be released, decided a U.S. District Judge.
AP – Nomaan Merchant
HOUSTON (AP) — A federal judge on Friday ordered the release of children held with their parents in U.S. immigration jails and denounced the Trump administration’s prolonged detention of families during the coronavirus pandemic.
U.S. District Judge Dolly Gee’s order applies to children held for more than 20 days at three family detention centers in Texas and Pennsylvania operated by U.S. Immigration and Customs Enforcement. Some have been detained since last year.
Citing the recent spread of the virus in two of the three facilities, Gee set a deadline of July 17 for children to either be released with their parents or sent to family sponsors.
The family detention centers “are ‘on fire’ and there is no more time for half measures,” she wrote.
In May, ICE said it was detaining 184 children at the three detention centers, which are separate from U.S. Department of Health and Human Services facilities for unaccompanied children that were holding around 1,000 children in early June. The numbers in both systems have fallen significantly since earlier in the Trump administration because the U.S. is expelling most people trying to cross the border or requiring them to wait for their immigration cases in Mexico.
Gee oversees a long-running court settlement governing the U.S. government’s treatment of immigrant children known as the Flores agreement. Her order does not directly apply to the parents detained with their children.
But most parents last month refused to designate a sponsor when ICE officials unexpectedly asked them who could take their children if the adults remained detained, according to lawyers for the families. The agency said then it was conducting a “routine parole review consistent with the law” and Gee’s previous orders.
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Read the rest of the story at the link.
The bad news:The evil masterminds of these “crimes against humanity,” Trump, Miller, Sessions, Barr, Wolf, and a host of other dangerous child abusers remain at large. Most are still on the Federal payroll and one actually has the audacity to run for a public office for which he is totally unqualified. Hopefully, they will be made to answer for their crimes at some later point in time.
A federal judge on Friday ruled that the Trump administration was again violating a longstanding agreement that compels the government to release migrant children detained at the border within 20 days and ordered the minors be released.
Plaintiffs represented by the Center for Human Rights and Constitutional Law have been challenging the child detention policies of the administration of President Donald Trump in Los Angeles federal court, where they’ve alleged the coronavirus crisis has caused further delays in the mandated release of migrant children.
The challenges are being waged under a 1997 settlement between immigrant advocates and the government known as the Flores agreement. It generally requires children detained at the border and kept in nonlicensed facilities to be released within weeks.
Los Angeles-based U.S. District Court Judge Dolly Gee oversees the settlement and issued a mixed ruling to enforce the Flores agreement and again ordered the government to “expedite the release” of children in its custody.
“This court order could very well prevent hundreds of children from becoming seriously ill with COVID-19 infection, and may even save some children’s lives,” longtime plaintiffs’ attorney Peter Schey said by email. “On behalf of the 5,000 detained children we represent, we are deeply grateful for the court’s humane order.”
The Flores agreement has faced multiple challenges since the Trump administration in 2018 enacted a policy of separating family members at the border as a means of dissuading illegal crossings. The administration backed down but was slow to reunite children when their parents.
Plaintiffs alleged the U.S. Office of Refugee Resettlement stopped releasing children to parents, relatives or potential guardians in New York, California and Washington to avoid becoming entangled in those states’ stay-at-home rules during the pandemic.
They also argued the government was dragging its feet by halting the release process for some children because parents, relatives and potential guardians couldn’t easily be fingerprinted for background checks.
Plaintiffs said delays endangered children as the virus could spread in detention facilities, citing a nonprofit facility in Texas “placed under a 14-day quarantine order,” according to Friday’s ruling.
They also alleged that a teen turned 18 during “quarantine” and was released to ICE rather than going to a family placement program “already secured for him.”
Gee did not agree with all those claims. But she concluded: “ORR and ICE shall continue to make every effort to promptly and safely release” children represented by plaintiffs.
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The solution is obvious: 1) release the kids👍; 2) jail Stephen ☠️🤮Miller👍👍👍.
Here’s a copy of Judge Gee’s latest order in Flores v. Barr:
Miriam Jordan, National Immigration Reporter, NY Times
By Miriam Jordan
March 29, 2020
Updated 4:02 a.m. ET
LOS ANGELES — Concerned that thousands of migrant children in federal detention facilities could be in danger of contracting the coronavirus, a federal judge in Los Angeles late on Saturday ordered the government to “make continuous efforts” to release them from custody.
The order from Judge Dolly M. Gee of the United States District Court came after plaintiffs in a long-running case over the detention of migrant children cited reports that four children being held at a federally licensed shelter in New York had tested positive for the virus.
“The threat of irreparable injury to their health and safety is palpable,” the plaintiffs’ lawyers said in their petition, which called for migrant children across the country to be released to outside sponsors within seven days, unless they represent a flight risk.
There are currently about 3,600 children in shelters around the United States operated under license by the federal Office of Refugee Resettlement, and about 3,300 more at three detention facilities for migrant children held in custody with their parents, operated by the Immigration and Customs Enforcement agency.
Advocates for immigrants have tried for decades to limit the government’s ability to detain children apprehended after crossing the border, arguing that it is psychologically harmful, violates their rights and undermines their long-term health.
Now, some say, the coronavirus represents an even more immediate threat.
In addition to the four children who tested positive in New York, at least one child is in quarantine and awaiting results of a test for the virus at a detention facility operated by ICE, according to documents filed with the court.
. . . .
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Read the rest of Miriam’s report at the above link.
Wow! Dateline 4:02 AM! Miriam is always on the job to make sure we get the latest news! Thanks to her and many other dedicated journalists for shedding some light on the way our regime treats the most vulnerable among us in the time of need!
Pretty shabby that judges under prodding from dedicated members of the New Due Process Army have to order the kakistocracy to “do the right thing.”
Some states and localities are actually doing the right (and smart) things on their own initiative. But, that wouldn’t be DHS orEOIR under the Trump regime.
A federal judge in Los Angeles has blocked the Trump administration from activating new regulations that would have dramatically expanded its ability to detain migrant children with their parents for indefinite periods of time, dealing a blow to the president’s efforts to tamp down unauthorized border crossings.
U.S. District Judge Dolly M. Gee issued the permanent injunction Friday, hours after hearing arguments from the Justice Department and advocates for immigrants in a long-running federal case in the Central District of California.
Lawyers for the Justice Department had urged Gee to allow the Trump administration to withdraw from the Flores Settlement Agreement, a 1997 federal consent decree that sets basic standards for detaining migrant children. The decree led to a 20-day limit for holding children in detention facilities that have not been licensed by the states for the purpose of caring for minors.
President Trump has called Flores a “loophole” that has enabled hundreds of thousands of families, many from impoverished Central American countries, to cross the southern boundary and claim asylum. Those migrants generally are quickly released into the United States because of the 20-day limit on detaining children.
The Department of Homeland Security and the Department of Health and Human Services issued new rules in August that sought to terminate the settlement and lift the 20-day limit by allowing the federal government to license such facilities.
In the ruling Friday, Gee wrote that the regulations “fail to implement and are inconsistent with the relevant and substantive terms of the Flores Settlement Agreement,” and therefore cannot take effect, noting that the agreement is a binding contract that was never appealed.
“Defendants cannot simply ignore the dictates of the consent decree merely because they no longer agree with its approach as a matter of policy,” she wrote. “Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets.”
The Justice Department is widely expected to appeal the decision, but a spokesman for the department did not signal the administration’s next steps Friday.
“The Department of Justice is disappointed that the court is continuing to impose the outdated Flores Agreement even after the government has done exactly what the Agreement required: issue a comprehensive rule that will protect vulnerable children, maintain family unity, and ensure due process for those awaiting adjudication of their immigration claims,” a spokesman said. “The Trump Administration will continue to work to restore integrity to our immigration system and ensure the proper functioning of the duly enacted immigration laws.”
Withdrawing from the settlement is part of Trump’s “beautiful puzzle,” an assortment of tough immigration enforcement measures designed to reduce the flow of Central American families and unaccompanied minors streaming across the U.S.-Mexico border.
Rep. Joaquin Castro (D-Tex.), chair of the congressional Hispanic Caucus, hailed the ruling Friday.
“I am pleased that our justice system has stopped the Trump Administration plans to indefinitely detain families in prisonlike conditions,” Castro said. “This victory gives us hope and is a reminder to us all — elected officials, immigration lawyers, organizers, and advocates — to keep fighting. Flores is not a loophole — it’s a lifesaving standard that protects the basic rights and dignity of migrant children.”
Acting Homeland Security Secretary Kevin McAleenan, who has pushed for the termination of the Flores pact, said officials did not want to hold families longer than 50 days, but critics said the proposed regulations left open the possibility that minors could be detained for months or years.
More than 800,000 migrants have been taken into federal custody at the border this year, and the majority have been in family units. Advocates say they are fleeing dangerous and unstable regions in Central America’s “Northern Triangle,” the nations of Guatemala, Honduras and El Salvador.
Undoubtedly, Trump’s personal “Solicitor General,” Noel Francisco, will ask the Supremes to bypass the Ninth Circuit and endorse official child abuse. And, based on she Supremes’ majority’s totally spineless performance in allowing the “Let ‘Em Die In Mexico” program to proceed, notwithstanding its blatant Constitutional, statutory, and regulatory defects, why not? (Barr v. East Side Sanctuary Covenant). The Supremes are establishing themselves as “Trump’s Court” – a feckless and complicit body of judicial cowards — just like he arrogantly claims.
How many more kids and families will die, be mistreated, or scarred for life because the supposedly most powerful judges in our nation are afraid to stand up to lawless, immoral, and inhumane actions by Trump & his toadies?
Raul A. Reyes is an attorney and a member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are solely those of the author. View more opinions on CNN.
(CNN)When all else fails, lock up children. That’s the message from the Trump administration, which on Wednesday announced a regulation allowing it to indefinitely detain migrant families who arrive at our southern border. The new rule would replace a court agreement known as the Flores settlement, which sets minimum standards for migrant children in government custody, and limits their detention to 20 days.
Speaking at the White House, President Trump told reporters that his new rule will “make it almost impossible for people to come into our country illegally.”
What the rule won’t do is help solve the humanitarian crisis at the border. The new rule is legally and logistically suspect. The only thing it guarantees is that more children will suffer greatly.
For decades, the treatment of detained migrant children has been governed by the Flores settlement. Aside from limiting the length of time that the government can keep immigrant children in custody, it mandates that kids be kept in the least restrictive setting possible, and that they receive food, water and other basic services.
Acting Secretary of the Department of Homeland Security Kevin McAleenan said the Flores settlement has been the driving force behind unauthorized migration from Central America to the U.S. “This single settlement has substantially caused, and continues to fuel, the current family unit crisis… until today,” he said Wednesday.
But he has no data to back him up. On the contrary, ample research shows that the migrants are driven here by violence, gang activity, poverty and civil instability in Guatemala, Honduras and El Salvador.
As they have done throughout American history, people are fleeing for their lives from dangerous nations to seek safety, a new start and better lives in our country. They are not rushing to the US to take advantage of Flores.
<img alt=”Yes, Obama deported more people than Trump but context is everything” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/170305143551-trump-obama-split-large-169.jpg”>
Members of the Trump administration are fond of characterizing the Flores settlement as a “loophole” in need of fixing.
Not true.
The Flores settlement began as a 1985 class-action suit against the Immigration and Naturalization Service, the predecessor to the Department of Homeland Security, over its treatment of migrant children. It took 12 years of litigation and negotiation to reach the final agreement in 1997. The settlement was painstakingly crafted by immigrant advocates and government lawyers and has endured through Republican and Democratic administrations.
Getting rid of the Flores settlement would allow the government to lock children up for as long as their immigration cases take to resolve. This is chilling and simply inhumane, and not just because detention centers have repeatedly been found to be crowded, dirty and unsafe. Just this summer, DHS’s own inspector general found conditions at migrant detention centers to be “an immediate risk to the health and safety” of detainees.
Beyond that, doctors and child welfare experts are unanimous in their conclusion that imprisoning children harms their physical, emotional and psychological development. At least six migrant children have died in the Trump administration’s custody. Why would anyone want to place kids in detention for longer periods of time?
<img alt=”Tragic father-daughter photo is a moral stain on Trump&#39;s America” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/190625182031-01-father-daughter-border-drowning-large-169.jpg”>
Replacing Flores would also amount to a logistical nightmare. The US has three family detention centers with a combined capacity of about 3,000. Contrast that with the roughly 432,000 MEMBERS OF “family units” arrested at the border between October and July, according to Customs and Border Protection. It defies reality to think that the administration could possibly come up with safe places to house such large numbers of people for long periods of time.
Instead they should be screened and processed in a timely manner, then released to family members or sponsors. The vast majority of children and families seeking asylum show up for their court dates when they receive appropriate support, like the kind they received through the Ice Family Case Management Program. Yet the Trump administration abruptly terminated this program in June 2017, indicating a lack of good faith in ensuring that migrants receive proper assistance and guidance with their immigration cases.
“No child should be a pawn in a scheme to manipulate our immigration system,” said McAleenan. He’s right. But it is the Trump administration that is using children as pawns to further its xenophobic agenda. Central Americans have the legal right to apply for asylum, and families should not face indefinite detention for exercising this right.
The administration’s new rule is sure to face significant legal challenges. In fact, a federal court judge recently affirmed that using detention as a deterrent to seeking asylum is an unconstitutional violation of due process.
Trump’s attack on the Flores settlement is an attack on children. His administration’s lack of regard for the care and well-being of migrant kids is a betrayal of American values of fairness and compassion.
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Reyes “hits the nail on the head” here:
Instead they should be screened and processed in a timely manner, then released to family members or sponsors. The vast majority of children and families seeking asylum show up for their court dates when they receive appropriate support, like the kind they received through the Ice Family Case Management Program. Yet the Trump administration abruptly terminated this program in June 2017, indicating a lack of good faith in ensuring that migrants receive proper assistance and guidance with their immigration cases.
“No child should be a pawn in a scheme to manipulate our immigration system,” said McAleenan. He’s right. But it is the Trump administration that is using children as pawns to further its xenophobic agenda. Central Americans have the legal right to apply for asylum, and families should not face indefinite detention for exercising this right.
With all of their cruel and wasteful gimmicks, schemes, and illegal actions, the one thing the Trump Administration has been unwilling to do is just follow existing law:Allow asylum applicants of all nationalities to be fairly and timely processed through the existing system under the law as it existed before the Trump Administration twisted it for the specific purpose of discriminating against legitimate asylum seekers. Then, we’d all finally know whether or not the individuals fleeing the Northern Triangle are “refugees” or something else. But, the Trump Administration won’t allow that to happen because it fears the answer.
Moreover, we should always keep in mind that even those who don’t meet the highly technical international definition of “refugee” might still be in real danger of harm or death upon return. They consequently could be strong candidates for some other type of temporary humanitarian protection (e.g., TPS, extended voluntary departure, prosecutorial discretion) short of asylum.
Also, as Reyes correctly points out, to maintain that a 20 year old consent decree in Flores, carefully developed and agreed upon among the Government, advocacy groups, and the U.S. District Judge to implement “best practices” in lieu of having the Judge unilaterally force the Government to take corrective action to meet basic constitutional standards, is the cause of a continuing Central American migration that has been happening to some extent or another over the past four decades, is beyond absurd. Indeed, the Government undoubtedly entered into the Flores consent decree to save itself from what almost certainly would have been a major litigation defeat on the merits and a public judicial rebuke of their unconstitutional treatment of minor children (which the Solicitor General probably would have declained to appeal to the 9th Circuit).
Only someone as disingenuous and subservient to Trump as “Big Mac With Lies” could possibly put forth such a ridiculously bogus theory in public with a straight face. Judge Gee should hold Big Mac and the rest of his White Nationalist restrictionist gang at DHS, DOJ, and the White House in contempt of court for even putting forth such a pack of lies (but, she won’t).
Stand up against the Trump Administration’s cruel and cowardly attack on children and families. Join the New Due Process Army and the daily ongoing effort to force our Government to follow the law and provide full Due Process for all!
Justice Department Argues Against Providing Soap, Toothbrushes, Beds To Detained Kids
“I find it inconceivable that the government would say” current conditions are “safe and sanitary,” as required, said a stunned Judge William Fletcher.
A Justice Department attorney this week argued in court that the federal government should not be required to provide soap, toothbrushes or even beds to detained children apprehended at the U.S.-Mexico border.
Attorneys for the detained children are arguing that the government is not following the requirements of a 1997 settlement agreement in the case of Jenny Flores that established a framework for the humane treatment and release of detained migrant minors. Children must be housed in “safe and sanitary conditions” under the settlement. A district judge added the specific requirements that children be provided with soap and toothbrushes.
“Are you arguing seriously that you do not read the agreement as requiring you to do something other than what I just described: cold all night long, lights on all night long, sleeping on concrete and you’ve got an aluminum foil blanket?” asked Judge William Fletcher. “I find it inconceivable that the government would say that that is safe and sanitary.”
Judge Marsha Berzon asked Fabian: “You’re really going to stand up and tell us that being able to sleep isn’t a question of ‘safe and sanitary’ conditions?… You can’t be sanitary or safe as a human being if you can’t sleep.” (See the video below at 24:30.)
Fabian was challenging an order by U.S. District Judge Gee in Los Angeles, who appointed an independent monitor to ensure that the federal government complies with the Flores settlement and specifically required such items as soap and toothbrushes. Fabian argued that such requirements are not detailed in the original settlement. (In the video at 26:40.)
“One has to assume … parties couldn’t reach agreement on how to enumerate that or it was left to the agencies to determine,” Fabian argued.
Fletcher responded: “Or it was relatively obvious — at least obvious enough so that if you’re putting people into a crowded room to sleep on a concrete floor with an aluminum foil blanket on top of them, that doesn’t comply with the agreement.”
He added: “It may be they don’t get super-thread-count Egyptian linen, I get that. … I understand at some outer boundary, there may be some definitional difficulty. But no one would argue that this [current situation] is safe and sanitary.”
As for soap, it “wasn’t perfumed soap, it was soap. That sounds like it’s part of ‘safe and sanitary,’” he added. “Are you disagreeing with that?”
Judge A. Wallace Tashima said that such items are “within everybody’s common understanding that if you don’t have a toothbrush, if you don’t have soap, if you don’t have a blanket, it’s not safe and sanitary. Wouldn’t everybody agree to that?” he asked. “Do you agree to that?”
Fabian, who appeared to stumble throughout much of her presentation, responded: “Well … maybe.”
The attorney for the children argued that, although soap and toothbrushes weren’t specifically mentioned in the 1997 settlement, they must be provided because they would be “reasonably interpreted” as part of the agreement under contract law.
The “first thing you do is honor the plain meaning” of words like “safe and sanitary,” said Peter Schey. “Today we have a situation where once a month a child is dying in custody. Certainly the Border Patrol facilities are secure, but they’re not safe and they’re not sanitary.”
It’s not clear when the 9th Circuit, based in San Francisco, will issue a decision in the case.
Honestly, how does Sarah Fabian sleep at night? If she has kids, what does she tell them about what she does to other people’s kids for a living?
And, what can you say about 9th Circuit judges who accept frivolous, totally disingenuous arguments from Government counsel. A private attorney who wasted the court’s time and disrespected its integrity and functions in this matter would almost certainly be disciplined or disbarred in short order.
At one time, DOJ attorneys were expected to adhere to higher standards of ethics because of their role in protecting the public interest and aiding the courts in pursuit of justice. Why in the age of Trump, Sessions, Barr, and Solicitor General Noel Francisco are ethical standards no longer enforced against DOJ Attorneys? And that goes right up to the top, as both Barr and Sessions have clearly interfered with and participated in quasi-judicial immigration decisions after showing clear bias against migrants and in favor of DHS Enforcement, in violation of ethical standards.
Folks like Trump and his cronies always depend on complicit subordinates, as well as complicit courts, to carry out their vile and illegal programs.
Defendants respectfully object to the appointment of former immigration judge (“IJ”) Carol King as the Flores independent monitor. As an initial matter, while Defendants agree that former IJ King has significant experience with immigration law, Defendants object because former IJ King appears to have little or no direct experience with U.S. Customs and Border Protection (“CBP”) or U.S. Immigration and Customs Enforcement (“ICE”) holding and detention facilities themselves, or more specifically with the conditions at such facilities, the management of such facilities, or the legal standards applicable to such facilities, which go beyond substantive immigration law.
Moreover, former IJ King has no demonstrated background in overseeing complex litigation or compliance with consent decrees. Immigration judges have limited powers delegated to them by regulation to decide individual cases, and only for matters designated to them under the Immigration and Nationality Act. 8 C.F.R. § 1003.10(b). This is very different from the substantial and complex task of overseeing the operations of multiple agencies as is required in the present matter. Given this lack of experience, Defendants disagree that former IJ King would have only a “minimal learning curve” in undertaking to serve as an independent monitor related to the issues in the Court’s June 27, 2017 order.
Defendants also object to the appointment of former IJ King on the ground that she has published a writing to promote her law practice that gives the appearance of a very real and serious bias against the defendants. These sentiments, expressed publicly, at the very least create the appearance that former IJ King would not carry out her duties as special master with the type of impartiality that is required for a quasi-judicial role. These statements criticize a defendant in this matter – the Attorney General – and address policies relating to children subject to the Flores Agreement.
Specifically, on her law office web site, former IJ King states in the “Introduction to Carol King Law Office” that “[t]he current wave of attacks on immigrants [that] has clearly been manufactured . . . to sow division and grab power” includes “those who have been so viciously attacked . . . immigrant parents and young children.” Introduction to Carol King Law Office, July 9, 2018, available at: https://carolkinglawoffice.com/2018/07/09/hello-world/. Former IJ King further states that “[t]he lack of any ethical, moral or compassionate compass reflected in the current administration is more disturbing than anything in recent history[,]” and that the “current actions on the part of the President, Attorney General and administration, which reflect only a commitment to power and to hatred, hurt me so deeply.” Id.
To be sure, there is nothing improper about holding strong views on government policies, but public statements such as these are not consistent with performing the quasi-judicial function of a special master, where officers must meticulously avoid “[c]onduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge” because it “undermines public confidence in the judiciary.” ABA Model Rules of Judicial Conduct 1.2, Comment [3]; see id. Comment [5] (“[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge . . . engaged in other conduct that reflects adversely on the judge’s . . . impartiality”). The published criticism of a named defendant, and of government policies related to children who are subject to the Flores Agreement, as an introduction to her law practice do not, Defendants submit, meet this exacting standard. A reasonable person could question, in light of such statements, whether former IJ King will be impartial in evaluating compliance with this Court’s orders for facilities that are currently operated by Defendants CBP and ICE, who are agencies of that same administration against which former IJ King has a clearly and publicly expressed bias. Defendants therefore object to the appointment of former IJ King as an independent monitor in this case.
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Let’s get this straight! The DOJ Attorneys who filed this with Judge Gee represent and work for a named defendant Jeff Sessions who:
Unapologetically masterminded the “zero tolerance” policy that resulted in the unconstitutional separation of children and the intentional violation of Judge Gee’s earlier order in the case;
After having his legal arguments soundly rejected by Judge Gee is actively trying to “back door” his contemptuous behavior by proposing unlawful regulations that any reasonable person would know would be “dead on arrival;”
This week told supposedly “fair and impartial” judges who work for him, without any supporting evidence, that “the vast majority of the current asylum claims are not valid under the law;”
Knowingly and intentionally misrepresented the DOJ’s own statistics relating to asylum grants on the merits to understate the grant rates to make them appear to support his false anti-asylum narrative;
Warned Immigration Judges not to be “sympathetic” toward asylum applicants appearing before them in Immigration Court;
Intentionally created a false narrative linking asylum policy to Southern Border arrivals that ignores the majority of reliable studies showing that refugee producing conditions in foreign countries, not changes in US policy, drive individuals to seek refuge;
In the words of AILA, before Immigration Judges expressed his “disdain for lawyers who take a solemn oath to uphold the law” and showed “a complete disregard for the role of independent judges in overseeing our adversarial system;”
In front of a group of Immigration Judges referred to attorneys representing individuals asylum cases (many serving pro bono or “low bono”) as “dirty lawyers;”
Promoted the role of “judges” as enforcement officers rather than fair, impartial, independent adjudicators;
Unethically acted in a quasi-judicial capacity in Matter of A-B- after publicly prejudging the substantive issue in the case during a radio interview.
So, how do these DOJ lawyers, with straight faces and in compliance with their ethical duties, have the audacity to argue the ABA Model Rules of Judicial Conduct against Judge King (who does not currently serve in any judicial capacity) when their own boss and named defendant is in violation of that provision (and also the EOIR’s own rules of judicial conduct). No “reasonable person” would believe that Jeff Sessions, in light of his public antipathy to migrants, asylum seekers, and their lawyers, and his clear, highly inappropriate favoritism for DHS Enforcement could properly and ethically run the Immigration Courts and actually act in a quasi-judicial capacity in individual cases! Yet, he is still doing both, to the detriment of Due Process and the rule of law.
Jeff Sessions has total contempt for the Constitution, the law, and courts of every type (both the ones he controls and the ones he appears before through DOJ attorneys). At some point, the Article IIIs, if they wish to maintain their position as a “separate but equal Branch” are going to have to take on the biased, contemptuous, and overtly unethical performance of Attorney General Sessions head on. Otherwise, he will run right over them as he has the US Immigration Courts and the Constitutional guarantee of Due Process.
THE TRUMP ADMINISTRATION ripped more than 2,600 migrant children from their parents’ arms with no plan or procedures for reuniting them, resulting in some 500 children remaining effectively orphaned even today, five months after the fact. Now it proposes a new policy for jailing migrant children indefinitely, one that ensures they “are treated with dignity, respect and special concern for their particular vulnerability as minors.”
That assurance, along with its rich irony, is offered by Homeland Security Secretary Kirstjen Nielsen, who has proposed the policy in a brazen attempt to escape the strictures of a two-decade-old court settlement forbidding the long-term incarceration of minors who cross the border seeking asylum in the United States.
Ms. Nielsen, who was instrumental in executing the zero-compassion policy that traumatized so many toddlers, grade-schoolers, tweens and teens this spring and summer, now would have Americans believe her department recognizes children as particularly vulnerable human beings, deserving of dignity and respect. How will that dignity and respect be meted out when those children are confined, along with their parents, in long-term detention facilities that the administration now proposes to build?
Ms. Nielsen, along with immigration hard-liners such as White House adviser Stephen Miller, are convinced that so-called catch-and-release policies are largely to blame for the flow of families across the southern border. Among the factors contributing to those policies is the 1997 court agreement known as Flores, which arose from abundant evidence that migrant children had been harmed by long-term detention, and forbade it.
The reality is that Flores has been in effect for more than 20 years, during which migrant flows have dipped and surged. When the Trump administration tried, just a few months ago, to amend the Flores agreement to permit long-term detention of families, U.S. District Judge Dolly M. Gee rejected its argument that the agreement was to blame for a recent surge in border crossings. “Any number of other factors could have caused the increase in illegal border crossings, including civil strife, economic degradation, and fear of death in the migrants’ home countries,” the judge wrote.
The administration’s proposal sets up a new court fight, one that will test Homeland Security’s risible insistence that the new policy would “satisfy the basic purpose” of the Flores agreement while freeing the government to get tougher on migrants. The “basic purpose” of Flores was to protect children from harm; confining them defeats that mandate.
It is legitimate to take concrete steps to ensure that migrant families appear in immigration court when ordered to do so. Ankle bracelet monitors, bail and other means of achieving that have been effective, and their use can be expanded. What’s less effective, and at odds with American values, is the administration’s abiding faith in punitive measures where children are concerned. There’s no evidence that they work to cut illegal border-crossing; there’s plenty of evidence of their cruelty.
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.
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Undocumented immigrants at a bus station in McAllen, Tex.CreditCreditIlana Panich-Linsman for The New York Times
For all the human brain’s mysteries, its development is quite well understood. Early childhood and adolescence are crucial times of unparalleled neural growth. Just as trust and stability can enhance that growth, fear and trauma can impede it. Institutionalization, in particular, can have profound and deleterious effects, triggering a range of developmental delays and psychiatric disorders from which recovery can be difficult, if not impossible.
In light of that knowledge, the Trump administration’s latest move against immigrant children is especially troubling. On Thursday, the Department of Homeland Security proposed new regulations that would allow the government to detain migrant children indefinitely. Officials are now prohibited from detaining such minors for more than 20 days by an agreement known as the Flores settlement, which has been in place since 1997. The new rules would end that settlement and would likely open the door to an expansion of detention centers across the country.
D.H.S. says that by eliminating Flores, officials will deter illegal immigration, reasoning that undocumented adults will be less likely to enter the country to begin with if they know they can’t avoid long-term detention simply by having a child in tow. Immigration activists say the proposed rule’s true aims are both simpler and more diabolical than that: “They want to strip away every last protection for detained immigrant children,” says Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project.
Even with Flores in place, those protections have proved thin. Youth migrant shelters — there are roughly 100 such facilities housing more than 10,000 minors across the country — have been cited for a long list of abuses, including physical abuse, sexual abuse, blatant medical neglect, the forcible injection of antipsychotic medications, the unlawful restraint of children in distress and harsh rules that prohibit even siblings from hugging one another. The shelters in question, several of which are facing lawsuits, are part of a network that has received billions of federal dollars in the past four years alone. That money has continued to pour in even as abuse allegations have multiplied.
Related
For more on detained migrant children
Restraint Chairs and Spit Masks: Migrant Detainees Claim Abuse at Detention Centers
Opinion | The Editorial Board
The Continuing Tragedy of the Separated Children
The administration bears unique responsibility for these violations, in no small part because its disastrous and short-lived separation policy has wreaked havoc on a system that was already rife with problems. Shame alone should have federal officials working hard to undo the damage of that policy and to prevent further harm to the children under their charge, never mind that it’s the right thing to do under any number of international agreements and norms.
But their latest plan is more likely to exacerbate existing problems than to resolve them. The proposed regulations would eliminate the standing requirement that detention centers submit to state inspections and would narrow the scope of relatives to whom children can be released to only parents and legal guardians — no aunts, uncles or other extended family members. It would also trigger a proliferation of new facilities: The administration projects that Immigration and Customs Enforcement-run family detention would increase from 3,000 beds to 12,000. The number of shelters for unaccompanied immigrant minors may also grow.
The proposals will be open to public comment for the next 60 days before they can be finalized. Readers who wish to register their concern can do so on the Federal Register’s website.
After that period, the issue is almost certainly headed to court. Observers say the same judge who has ruled against past attempts to undermine Flores is likely to thwart this attempt as well.
Which paints a stark reality for what’s motivating this move and what it ultimately means: The administration surely knows what a long shot this proposal is, but it will undoubtedly excite President Trump’s political base as the midterm elections approach. So while the administration plays politics, the well-being of thousands of children who came to America seeking protection and safety will be put at risk — today and, developmentally, for the rest of their lives.
The Trump administration wants no limits on how long it can detain migrant kids and their parents.
Of all the appalling things the Trump administration has done, the cruelest has to be arresting and detaining asylum seekers, and separating them from their children. Seeking to deter desperate families from entering the United States by detaining parents for weeks or months apart from their children is so hard-hearted it shocks the conscience. The cruelty has been compounded by ineptitude, as hundreds of migrant children have been stranded in the United States without their parents, who have been deported.
Thankfully, the administration’s callousness has been held in check by a court order left over from President Clinton’s second term. The 1997 settlement agreement in Flores vs. Reno requires, among other things, that children facing deportation be held in detention for no more than 20 days, and in the least restrictive environment possible. Courts later extended the agreement to include families with minors in detention centers. (The government has been sued at least five times for allegedly violating the order.)
Now the Trump administration wants to scrap the agreement entirely by instituting even more draconian regulations that would allow it to detain families with minors as long as it may take to resolve their deportation cases. That’s beyond the pale.
Migrant children seeking permission to remain in the U.S. should not be detained regardless of whether they have a parent to accompany them in confinement. It’s especially troubling that one of the administration’s stated reasons for doing so is to send a threatening message to other families who might seek asylum in the U.S. from dangerous circumstances in their home countries.
Of course, the government has the right and duty to set immigration laws and enforce them. And we have a system for that, broken as it might be. Current U.S. law allows asylum to be granted to people facing persecution because of their race, religion, nationality, political opinion or “membership in a particular social group.” If immigration courts rule that applicants don’t meet those requirements, or reject appeals by people seeking permission to stay on humanitarian grounds, the government is entirely within its rights to send them to their home countries. But it should not (and may not, under international agreements) incarcerate them — especially when they are children — unless there is good cause to think the migrants are a flight risk or pose a threat to public safety.
Remember, most of these families arrive seeking official permission to stay, so they have a powerful incentive not to skip their court hearings or break the law: doing so only leads to deportation orders. Advocates argue that most of the aslyum seekers who do miss court dates never received an appearance notice, often because the process takes so long that their addresses change and official records don’t catch up. As for public safety, a raft of studies has found that immigrants, regardless of their status, commit crimes at lower rates than native-born Americans.
If no-shows truly are the administration’s concern, it inherited a new Family Case Management Program from the Obama administration that matched eligible asylum-seeking families with housing, healthcare, schooling for the children and legal advice to help navigate the immigration court system. Families in that program had a 99% show-rate for court hearings. But Trump killed it last year.
Under the Flores agreement, the government can hold minors only in state-licensed facilities. But states tend not to license facilities for families, which, the government argues, means that it must release the families while the deportation cases continue.
The new regulations would let the federal government do the licensing of facilities, paving the way for a massive expansion of the detention system. The government currently uses three family detention centers with a total of 3,500 beds. They are secured, dormitory-style facilities with shared bathrooms, common areas, play space and rooms for classes. Trump wants to add 15,000 more beds, but that may just be the start; border agents caught 77,674 people migrating as families in 2016 alone.
It is fundamentally inhumane to incarcerate children — with or without their parents — while immigration courts try to figure out what to do with them. Psychiatrists warn of the damage even from short-term detentions, and some of those who have been held for months have shown signs of severe emotional distress and post-traumatic stress disorder. So in its obsessive quest to stop migrants from seeking asylum, the Trump administration is willing to, in essence, commit child abuse. That’s a stain not just on the presidency, but on the nation.
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The White Nationalist Scofflaws are at it again! Even if were effective as a deterrent (which all reliable data and experience show it isn’t), detention for deterrence would still be illegal.
Join the New Due Process Army and fight to uphold our Constitution and true American values against the White Nationalism, racism, cruelty, xenophobia, and lawlessness of Trump, Sessions, and their cronies! Put an end to Sessions’s “New American Gulag” (“NAG”)!
Trump admin seeks to keep immigrant families in detention indefinitely
By Tal Kopan, CNN
The Trump administration has released a proposal to overhaul the way that undocumented immigrant families are treated in custody, a maneuver that would allow the government to keep the families in detention as long as their immigration court case remains open.
The proposed federal regulations would notably revoke the court case known as the Flores Settlement Agreement, which governs how undocumented children can be treated in custody. The regulations are scheduled to be published in the Federal Register on Friday.
The more than 200-page rule would have sweeping implications for the immigration detention system in the US and is likely to face swift resistance from advocates who brought the Flores case and those who have supported it.
One of the biggest proposed changes would create a federal license system to allow for detention centers that could hold families. The administration argues that it is the state-based licensing system that is causing issues that would restrict family detention.
The arguments for the rule are similar to the case the administration has made in court before Judge Dolly Gee, who oversees the settlement. Gee has rejected those arguments in her courtroom.
“This rule would allow for detention at (family detention centers) for the pendency of immigration proceedings … in order to permit families to be detained together and parents not be separated from their children,” the rule states. “It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm.”
Pretty outrageous. But, about what we would expect from a racist White Nationalist Administration with no respect for the Constitution, laws, Federal Courts, or human dignity, and that is hell-bent on wasting our taxpayer money on evil causes.
I predict that this will “reactivate” the Flores litigation before Judge Gee. She, in turn, will “stuff” the Administration on its insulting, contemptuous, and clearly bogus justification for the detention.
These individuals are coming to the US seeking to exercise legal rights to apply for protection. Every reliable study shows that if released under alternatives to detention, informed of what the system requires, given adequate notice, and, most important, given reasonable access to lawyers they show up for their hearings nearly 100% of the time and actually prevail on the merits in a significant number of cases (the success rate is kept artificially low by the disingenuous anti-asylum jurisprudence created by Sessions and by a pre-existing legal bias in the system against many asylum seekers from the Northern Triangle, also fanned and encouraged by Sessions’s overt xenophobia).
Stay tuned for another monumental waste of taxpayer money on yet another misguided Administration attempt to impose a White Nationalist immigration agenda!
A federal judge in Los Angeles will appoint an independent auditor to oversee the treatment of children in immigrant detention facilities.
The Friday ruling came a day after the court-imposed deadline for the Trump administration to reunite families separated at the border under its zero-tolerance policy. As of Friday, hundreds of children remained isolated from their parents.
A monitor is expected to be appointed within a few weeks.
Peter Schey, lead counsel and director of the Los Angeles-based Center for Human Rights and Constitutional Law, said the monitor will oversee all three family detention centers run by Immigration and Customs Enforcement — two in Texas and one in Pennsylvania — as well as Border Patrol facilities in the Rio Grande sector along the Texas border.
Schey’s group filed a motion seeking an independent monitor for the Rio Grande sector after lawyers observed inhumane conditions there. He said his team will discuss in the coming weeks whether to file another motion asking that the monitor also oversee all other Border Patrol facilities along the border.
The group filed a scathing report last week including testimony from more than 200 parents and children held in California, Texas and other states who described cramped cells without enough bedding to sleep, cold or frozen food and a lack of basic hygiene products.
A Mexican woman said her daughter had wet herself on their first night because there were so many people sleeping in the room that she couldn’t get to the toilet. A Guatemalan boy told attorneys that he had no soap, towels or a toothbrush.
“These are problems that appear to be pervasive,” Schey said Friday. “We’re hoping that that has a salutary effect on Border Patrol operations throughout the southern border. Hopefully they won’t wait until we bring a new motion to expand the special monitor before they will learn from this and correct their ways.”
The interviews were done through a 1997 court settlement called the Flores agreement that governs how long migrant children may be held in custody and under what conditions. The settlement allows attorneys to periodically inspect detention facilities that children are held in.
This month, U.S. District Judge Dolly Gee rejected the federal government’s request to renegotiate the terms of the Flores agreement to hold children for longer than 20 days.
She ruled in 2015 that the government had breached the agreement by allowing rooms that were cold and overcrowded as well as inadequate nutrition and hygiene.
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Great idea!
It’s also time for some Federal Judge (or Judges) to appoint an “Independent Auditor” or “Special Master” to run the U.S. Immigration Court system in accordance with the laws and our Constituton until Congress establishes a new independent system.
“Minors who enter the U.S. without permission must be given a court hearing to determine whether they can be released, a federal appeals court panel decided unanimously Wednesday.
A three-judge panel of the U.S. 9th Circuit Court of Appeals said immigration authorities continue to be bound by a 1997 lawsuit settlement that guaranteed court hearings for minor immigrants, set standards for their detention and established a policy in favor of their release.
Following that settlement, Congress passed two laws dealing with unaccompanied minor immigrants. The federal government argued those laws replaced the settlement and revoked the right to bond hearings.
The 9th Circuit disagreed.
“In the absence of such hearings, these children are held in bureaucratic limbo, left to rely upon the [government’s] alleged benevolence and opaque decision making,” Judge Stephen Reinhardt, a Carter appointee, wrote for the court.
The settlement of Flores vs. Janet Reno required that juveniles detained near the border or elsewhere without a parent must be given bond hearings.
The hearings gave minors the right to a lawyer, an opportunity to learn and challenge government evidence against them and the right to contest being locked up, the panel said.
The 9th Circuit cited evidence that the government has been holding minors for months or even years without hearings, even when parents are nearby and can care for them.
Among them was a boy identified only as Hector, who was detained in California at the age of 15 for 480 days, mostly in a locked facility in Yolo County. The ruling did not say why Hector was picked up.
In a declaration, Hector described the Yolo County facility as a prison, where minors were locked in cells at night to sleep on cement benches with mattresses.
During 16 months there, Hector was not given a lawyer or an explanation about why he was being held even though his mother in Los Angeles was seeking his release, the 9th Circuit said.
Without any explanation, the federal government released Hector in December “into the custody of the person who had been advocating for his freedom all along — his mother,” Reinhardt wrote.
The court cited evidence that some juveniles have agreed to deportation rather than face continued incarceration without their families.
“Unaccompanied minors today face an impossible choice between what is, in effect, indefinite detention in prison, and agreeing to their own removal and possible persecution” in their native countries, Reinhardt wrote.
The ruling upheld a decision by Los Angeles-based U.S. Dist. Judge Dolly M. Gee, an Obama appointee.
The government may appeal the panel’s decision to a larger 9th Circuit panel or to the U.S. Supreme Court.
Lawyers in the case could not be reached for comment.”
Here’s a link to the 9th Circuit’s full 40-page opinion:
If you want to skip the legal gobbledygook (although the fact situations described are interesting and meaningful), the bottom lines are: 1) the last four Administrations have been to varying degrees tone-deaf to the needs of unaccompanied minors subject to immigration proceedings; 2) bond hearing before U.S. Immigration Judges play a critical role in protecting the rights of children and insuring due process.
“Despite being among some of the most vulnerable, children seeking asylum in the United States often fare the worst. Upon entering the United States, children are often detained for extended periods in violation of a long-standing agreement known as the Flores settlement.
The Flores agreement essentially acts as a contract between the government and children held in immigration custody. On Tuesday, a federal district court judge ruled once again that the government is failing to meet its obligations to children held in immigration custody.
The court found a number of violations, including holding children too long in detention, in substandard conditions, and in non-licensed facilities. In addition, the court ruled that the government is required to look at each child’s case individually to determine whether release from custody is appropriate—the government may not rely on any blanket standard to avoid the responsibility of assessing each case individually.
The Flores agreement is a nationwide settlement reached in 1997. In this settlement, the government agreed that children taken into immigration custody would be placed in the “least restrictive setting appropriate to [their] age and special needs” and would be released “without unnecessary delay,” preferably to a parent. The settlement also requires that if a child is not released to a parent, adult relative, or an appropriate guardian, children must be placed in non-secure facilities licensed for the care of dependent children within five days of apprehension.
Two years ago, the Center for Human Rights and Constitutional Law (CHRCL), on behalf of immigrant children, brought suit to enforce the Flores settlement. In July and August of 2015, U.S. District Court Judge Dolly M. Gee said the government must apply the settlement to all minors, including those detained with family members. Tuesday’s order from Judge Gee outlines the particular ways in which the government is in breach of the Flores settlement and how the court seeks to ensure compliance going forward.”
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Read the complete article at the link.
While AG Jeff Sessions is out whipping up xenophobic frenzy and promoting the need for an “American Gulag” to support his “Gonzo Apocalypto” immigration enforcement agenda, he ignores his real legal and constitutional duties: Get General Kelly and the rest of the folks over at DHS to obey the law and stop mistreating kids!
That someone like Sessions with such totally warped values and lack of any sense of justice or decency should be in charge of our supposedly due process providing U.S. Immigration Court system is a continuing travesty of justice.
